Ramirez Rivas v. I.N.S.

• Decision Date: 29 March 1990
• Docket Number: No. 88-7463,88-7463
• Citation: 899 F.2d 864
• Parties: Patricia RAMIREZ RIVAS, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 864

899 F.2d 864

58 USLW 2605

Patricia RAMIREZ RIVAS, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 88-7463.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 14, 1989.

Decided March 29, 1990.

Karen Musalo, University of San Francisco Law Clinic, San Francisco, Cal., for petitioner.

Alice Smith, Office of Immigration Litigation, Washington, D.C., for respondent.

Petition for Review of an Order By the Board of Immigration Appeals.

Before ALDISERT, ^* TANG and FLETCHER, Circuit Judges.

FLETCHER, Circuit Judge:

Patricia Ramirez Rivas ¹ petitions for review of the decision of the Board of Immigration Appeals (BIA) denying her withholding of deportation and asylum. We grant the petition for review and reverse the BIA's decision on both withholding of deportation and asylum.

FACTS

Petitioner Patricia Ramirez Rivas left El Salvador in February of 1983, when she was fifteen years old. She has a mother and father, seven brothers and sisters, and a half-brother. She has an aunt Elena and an uncle Florencio, who had six children. Their children (Ms. Ramirez's cousins), and Ms. Ramirez's siblings all grew up in Changallo, a village of about one hundred inhabitants. The other relatives whose stories are relevant to this case are two uncles, Erik and Ivan.

Several of Ms. Ramirez's relatives were politically active. All six of her first cousins engaged in guerrilla activities. One of them, Balerio, was killed in combat. Another, Luis, was a combatant, but he did not die in combat. One night in August of 1980, he was dragged from his home and murdered by Salvadoran security forces, known as "death squads." Two of Ms. Ramirez's brothers were guerrillas, and one of them, Salomon, died in combat. Her half-brother, Arnolfo, engaged in propaganda activities such as painting political graffiti for an anti-government organization. He was captured, tortured, and imprisoned. Two uncles, Erik and Ivan, were guerrillas. Erik was captured, tortured, and imprisoned by the government. He was released from prison in 1983 under a general amnesty. Ivan quit fighting with the guerrillas and returned to work in 1985. About two months after he began working, he was "disappeared."

Ms. Ramirez's father, Juan Rivas, was politically neutral. Because of divorce, he lived in a different village, La Libertad. Ms. Ramirez lived with her mother, but out of fear of being harmed in her home village, moved to her father's home in early 1982. During the few months preceding her departure, she alternated living with her father and mother. The father was a farm administrator. He often gave food to the needy, including guerrillas. About three weeks after Ms. Ramirez left El Salvador, armed men burst into her father's house and shot him. He survived the attack, but was severely injured.

Pedro Bolanos, a close friend of the family, grew up in a village less than two miles from Changallo. He was a student when the following incident occurred: One night in early 1982, he was beaten and taken to Ms. Ramirez's aunt Elena's house by three armed men who wore civilian clothes. Ms. Ramirez and her mother Olivia were at Elena's house that night. Elena answered the door and saw Bolanos bleeding from his head. The armed men, apparently not knowing who she was, asked her if Elena or Olivia were present; she denied knowing either one of them. Bolanos refused to identify Elena. Three days later, he was found dead and dismembered.

Ms. Ramirez was and is politically neutral. After she had made arrangements to leave the country in late 1982, to say farewell, she began visiting various family members who were being held as political prisoners. She made several visits to the two prisons where relatives were incarcerated. Each time, she was required to show identification and sign her name in a visitors' book. An expert witness, Professor Terry Karl, testified that the visitors' lists were maintained by Salvadoran security forces, the "death squads." She also testified that visiting political prisoners was considered a very political act.

During the period from August, 1980 when Ms. Ramirez's cousin Luis was killed, to February, 1983, when Ms. Ramirez left El Salvador, government agents frequently visited her mother's house and questioned her mother about her brothers. The government agents did not ask for Ms. Ramirez. During that time she was in her early teens, and for most of that time, she was living with her father.

The Immigration and Naturalization Service ("INS" or "Service") began proceedings against Ms. Ramirez in February of 1983. She concedes deportability but asks for asylum and withholding of deportation.

JURISDICTION

This court has jurisdiction pursuant to the Immigration and Nationality Act, 8 U.S.C. Sec. 1105a.

STANDARD OF REVIEW

This court reviews the BIA's interpretations of law de novo. Arteaga v. INS, 836 F.2d 1227, 1228 (9th Cir.1988). The court reviews the BIA's factual findings under the "substantial evidence" standard. Diaz-Escobar v. INS, 782 F.2d 1488, 1492 (9th Cir.1986).

DISCUSSION

A.

To obtain withholding of deportation, a person must show that it is more likely than not, if returned to her home country, her life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion. Immigration and Nationality Act (INA) Sec. 243(h), 8 U.S.C. Sec. 1253(h); INS v. Stevic, 467 U.S. 407, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). If she makes that showing, withholding of deportation must be granted. To obtain asylum, she must show that she has a well-founded fear of persecution on account of at least one of those same five bases. INA Sec. 208(a), 8 U.S.C. Sec. 1158(a); INA Sec. 101(a)(42)(A), 8 U.S.C. Sec. 1101(a)(42)(A). A "well-founded" fear is a fear that is both genuine and objectively reasonable. To be objectively reasonable, there must be some reasonable possibility of persecution on one of the five statutorily-impermissible bases, but persecution does not have to be more likely than not. INS v. Cardoza-Fonseca, 480 U.S. 421, 431, 107 S.Ct. 1207, 1213, 94 L.Ed.2d 434 (1987). If the applicant makes the requisite showing for asylum, then, unlike in the case of withholding deportation, relief is not mandated but may be granted as a matter of discretion. If the applicant meets the higher standard for withholding of deportation, she is a fortiori eligible for asylum. See Damaize-Job v. INS, 787 F.2d 1332, 1334 (9th Cir.1986). Because we hold that Ms. Ramirez has proven her entitlement to withholding of deportation under the stricter "clear probability" standard we do not analyze the case under the lesser standard.

The petitioner offers two theories according to which she faces a likelihood of persecution on account of "race, religion, nationality, membership in a particular social group, or political opinion." The first theory is that she will likely be persecuted on account of "imputed" political opinion; in other words, the government will accuse her of harboring pro-guerrilla sympathies--even though she does not--and persecute her on that basis. The second is that she will likely be persecuted for being a member of the "particular social group" defined by her extended family. Since we hold that the petitioner has proved her case under the first theory, we do not address the latter theory.

In Hernandez-Ortiz v. INS, 777 F.2d 509, 516-17 (9th Cir.1985), this court held that persecution "on account ... of political opinion" under Sec. 243(h) includes persecution not only on account of political opinions that the alien actually holds, but also on account of opinions that the persecutor falsely attributes to the alien. ² The court relied on UNHCR, Handbook on Criteria and Procedures for Determining Refugee Status ("UN Handbook") pp 80-83 (government's persecution of persons to whom it attributes certain political opinions is persecution on account of political opinion). This construction of Sec. 243 makes good sense. It is at least as arbitrary and unjust for a government to persecute persons falsely accused of being ideological enemies as it is for a government to persecute real ideological enemies. Whenever a government persecutes with a political motive, it engages in persecution on account of political opinion. See Arteaga v. INS, 836 F.2d 1227, 1232 n. 8 (9th Cir.1988).

An alien makes out a case of likelihood of persecution on the basis of imputed political belief if she can establish that her alleged persecutor is likely to accuse her falsely of holding certain political beliefs or engaging in certain political acts and that her persecutor is likely to harm her on the basis of that accusation. In this case, it is undisputed that Ms. Ramirez is not now and never has been a participant in or a supporter of the guerrila movement or any other anti-government movement in El Salvador. The questions we address are whether it is likely that Ms. Ramirez will be accused of harboring pro-guerrilla sympathies or engaging in pro-guerrilla acts and whether persons so accused are unfairly punished in El Salvador.

The essence of Ms. Ramirez's claim is that the Salvadoran law enforcement authorities cannot be trusted to find out the truth about her lack of involvement in anti-government activities. She contends that her family's reputation, her visits to prisons where family members were held as political prisoners, and her age will likely subject her to harm at the hands of the government despite the fact that she has never said, let alone done, anything subversive. The INS contends (and the BIA held) that because the victims of most of the incidents Ms. Ramirez recounted did in fact actively oppose the Salvadoran government, those persons were not "persecuted" but rather were punished legitimately. Ms. Ramirez's fears of political persecution, the INS concludes, are thus unreasonable.

The INS misreads our opinion in Hernande...