Reyes-Guerrero v. INS

• Decision Date: 17 June 1999
• Docket Number: REYES-GUERRERO,No. 98-70581,98-70581
• Citation: 192 F.3d 1241
• Parties: (9th Cir. 1999) CARLOS E.; GRACIELA I. JIMENEZ DE REYES, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1241

192 F.3d 1241 (9th Cir. 1999)

CARLOS E. REYES-GUERRERO; GRACIELA I. JIMENEZ DE REYES, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 98-70581

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted June 17, 1999--San Francisco, California

Decided September 16, 1999

[Copyrighted Material Omitted] Nancy A. Fellom, Fellom & Solorio, San Francisco, California., for the petitioners.

Lorri Shealy Unumb, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. I&NS No. A72-399-761, A72-399-762

Before: Mary M. Schroeder, Betty B. Fletcher, and Cynthia Holcomb Hall, Circuit Judges.

B. FLETCHER, Circuit Judge:

Carlos Eduardo Reyes-Guerrero, and his wife, Graciela Irene Jiminez de Reyes, both citizens of Colombia, petition for review of an order of the BIA sustaining the government's appeal and reversing an IJ's order granting petitioners' applications for asylum and withholding of deportation pursuant to 8 U.S.C. S 1158(a) and S 1253(h). Petitioners allege that Carlos, a member of the Conservative Party, was threatened with death on account of his investigative work for the Ministry of Justice and the Superior Court of Public Order, and in particular for his role in the prosecution of members of the Liberal Party. We have jurisdiction to review a final order of deportation pursuant to 8 U.S.C. S 1105a(a), as amended by section 309(c)(4) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. 104-208, 110 Stat. 3009 (Sept. 30, 1996).¹ We grant the petition for review, find petitioners eligible for asylum and grant their applications for withholding of deportation.

I. FACTUAL BACKGROUND & PROCEDURAL HISTORY

Petitioners were both certified attorneys in Colombia. Carlos Reyes, the principal petitioner, was employed by the Ministry of Justice for approximately fourteen years. Carlos was a member of the Conservative Party. The Conservative Party is one of two dominant political parties in Colombia; the other is the Liberal Party. At the Ministry of Justice, judges and attorneys are selected from the Conservative and Liberal Parties in equal numbers.

Carlos was involved in the investigation and prosecution of a wide variety of crimes. In 1980, he was assigned to investigate the "White Collar Scandal" which involved a scheme to embezzle funds from a government pension plan and divert those funds to the Liberal Party. Eighteen defendants were arraigned, including a district attorney, a judge, and the chief of the retirement fund--all members of the Liberal Party. Under Colombian law, no member of a political party may investigate or act as a judge in a case involving members of the party to which he or she belongs. Since Carlos was a member of the Conservative Party, he was assigned to this case.

In 1984, Carlos and Judge Guillermo Cruz-Cruz began getting death threats, warning them against pursuing the investigation. Twice in 1989, Carlos was approached and offered suitcases full of cash as a bribe to drop the case. He requested and was provided protection by the national security agency. After the White Collar defendants were found guilty in 1989, and until he fled Colombia in 1991, Carlos continued to receive threats over the phone and in person. The individuals involved told Carlos that he was not going to get away with the damage he caused the Liberal Party. Carlos was told that he was responsible for the convictions and that he was a stooge for the Conservative Party. He was warned against playing politics, and told that he would be in trouble if the convictions were affirmed on appeal. Although he changed vehicles, residences, offices, and phone numbers, and although he had asked for protection from the government, those perpetrating the threats always managed to find petitioners. Afraid for their lives, Graciela and Carlos came to the United States in September, 1990 and June, 1991 respectively.

The IJ granted petitioners' applications for asylum and withholding of deportation. The INS appealed and the BIA sustained the appeal. The Board found that the criminal defendants were motivated by a desire to thwart the criminal process, irrespective of Carlos' political opinion. Petitioners claim that the evidence they presented compels the conclusion that they have a well-founded fear of being persecuted in Colombia, in part, on account of Carlos' political persuasion should they be required to return.

II. STANDARD OF REVIEW

This court must uphold the BIA's denial of asylum if it is "supported by reasonable, substantial, and probative evidence on the record considered as a whole." 8 U.S.C.S 1105a(a)(4); INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Similarly, the BIA's decision whether to withhold deportation is reviewed for substantial evidence. Mejia-Paiz v. INS, 111 F.3d 720, 722 (9th Cir. 1997). Review is limited to the administrative record. Velarde v. INS, 140 F.3d 1305, 1309 (9th Cir. 1998). "[W]here the IJ expressly finds certain testimony to be credible, and where the BIA makes no contrary finding, we `accept as undisputed' the testimony given at the hearing before the IJ." Singh v. INS, 94 F.3d 1353, 1356 (9th Cir. 1996) (quoting Singh v. Ilchert, 63 F.3d 1501, 1506 (9th Cir. 1995)). To the extent that the BIA incorporates the IJ's decision as its own, the court should treat the IJ's statements of reasons as the BIA's, and review the IJ's decision. Gonzalez v. INS, 82 F.3d 903, 907 (9th Cir. 1996).

III. STATUTORY REQUIREMENTS

In order to be eligible for asylum, petitioners must show that they are "unwilling or unable" to return to their home country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. S 1101(a)(42)(A) (defining "refugee"). To establish a wellfounded fear of persecution, petitioners must show their fear to be both objectively reasonable and subjectively genuine. See Fisher v. INS, 79 F.3d 955, 960 (9th Cir. 1996) (en banc). The objective component of this test requires showing "by credible, direct, and specific evidence in the record, that persecution is a reasonable possibility." Meza-Manay v. INS, 139 F.3d 759, 763 (9th Cir. 1998) (internal quotations omitted)(quoting Singh v. Ilchert, 63 F.3d 1501, 1506 (9th Cir. 1995)). This showing may be made "by the production of specific documentary evidence or by the credible and persuasive testimony of the applicant." Id. "[P]ersecutory conduct may have more than one motive, and so long as one motive is one of the statutorily enumerated grounds, the requirements have been satisfied." Singh v. Ilchert, 63 F.3d at 1509; see Borja v. INS, 175 F.3d 732, 735 (9th Cir. 1999) (en banc); Briones v. INS, 175 F.3d 727, 729 (9th Cir. 1999) (en banc); Ratnam v. INS, 154 F.3d 990, 994 (9th Cir. 1998); Rodriguez-Roman v. INS, 98 F.3d 416, 430 n.23 (9th Cir. 1996).

Evidence of past persecution alone can establish a wellfounded fear. See Ratnam, 154 F.3d at 994. Establishing past persecution triggers a rebuttable presumption of a well-founded fear of future persecution. See 8 C.F.R. S 208.13(b)(1)(i). The INS can rebut this presumption by showing by a preponderance of the evidence that conditions "have changed to such an extent that the applicant no longer has a well-founded fear of being persecuted if he or she were to return." Id.

Where an asylum applicant relies on past persecution on account of political opinion to establish a rebuttable presumption of a well-founded fear of future persecution, she must show that (1) she was a victim of persecution, (2) she holds a political opinion, (3) her political opinion was known to her persecutors, and (4) the persecution was on account of her political opinion. Sangha v. INS, 103 F.3d 1482, 1486-87 (9th Cir. 1997). To meet this burden, the applicant must establish a "causal connection" between the persecution and the political opinion, either through direct or circumstantial evidence. Id.; see Lopez-Galarza v. INS, 99 F.3d 954, 959 (9th Cir. 1996).

IV. DISCUSSION

The BIA erred when it reduced the actions against Carlos Reyes to nothing more than attempts by criminal defendants to disrupt the criminal process. The BIA's mistake was to focus on one motive of the persecutors--which was to disrupt the investigation of the White Collar Scandal--while ignoring substantial evidence in the record that the persecutors saw Carlos as their political enemy.

The criminal justice and political systems in Colombia are closely intertwined. The 1994 State Department Country Profile for Colombia notes that, "[d]ue to insufficient police and judicial resources to investigate and prosecute most killings and the frequently overlapping violent forces at work, it is often difficult to differentiate political from non-political murders." The investigation undertaken by Carlos, a member of the Conservative Party, into acts of political corruption by the Liberal Party, was, by its very nature, political.

Whatever prosecution Carlos chose to pursue threatened the Liberal Party. This fact was not lost on his persecutors. When Carlos refused to drop the case, he was threatened with death and told that he would pay for the damage done to their party. The BIA was precisely right that Carlos was "perceived to be `playing politics' or seeking to embarrass the Liberal Party in his attempt to obtain convictions of the defendants." The persecutors called Carlos a Conservative Party stooge and told him that he had damaged their party, and now owed that party a debt. Carlos did not waver from his refusal to end the investigation, remaining a political adversary in the...