Rivera Moreno v. INS

• Decision Date: 09 December 1999
• Docket Number: No. 98-71463,RIVERA-MORENO,98-71463
• Citation: 213 F.3d 481
• Parties: (9th Cir. 2000) Silvia, a.k.a. Vilma Aracely Argueta,Petitioner v. IMMIGRATION AND NATURALIZATION SERVICE OPINION,Respondent
• Court: U.S. Court of Appeals — Ninth Circuit

Page 481

213 F.3d 481 (9th Cir. 2000)

Silvia RIVERA-MORENO, a.k.a. Vilma Aracely Argueta,Petitioner v. IMMIGRATION AND NATURALIZATION SERVICE OPINION,Respondent.

No. 98-71463

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Submitted December 9, 1999^*

Filed May 23, 2000

Ralph J. Leardo, Law Offices of Nancy Ann Fellom, San Francisco, California, for the petitioner.

James A. Hunolt, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for the respondent.

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

Before: Ruggero J. Aldisert,^** Diarmuid F. O'Scannlain and Michael Daly Hawkins, Circuit Judges.

Opinion by Judge Aldisert; Concurrence by Judge Hawkins

ALDISERT, Circuit Judge:

The principal question for decision is whether retaliation against a nurse, who refused to join a guerrilla movement to give medical care to their wounded, constitutes "persecution . . . on account of political opinion" underS 101(a)(42) of the Immigration and Nationality Act ("the Act" or "INA"), 8 U.S.C. S 1101(a)(42) (1998).

Silvia Rivera-Moreno, a.k.a. Vilma Aracely Argueta, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals' ("BIA") denial of her application for asylum and withholding of deportation. She claims she is eligible for asylum because she is unable or unwilling to return to El Salvador "because of persecution or a wellfounded fear of persecution on account of . . . political opinion." Id.

This court follows the doctrine of "hazardous neutrality," in which a lack of political opinion may constitute a political opinion for purposes of the INA. We define hazardous neutrality as "show[ing] political neutrality in an environment in which political neutrality is fraught with hazard, from governmental or uncontrolled anti-governmental forces. " Sangha v. INS, 103 F.3d 1482, 1488 (9th Cir. 1997). This court has explained the elements of hazardous neutrality:

We have held that political neutrality can be a politi cal opinion under the Act. See, e.g., Maldonado Cruz v. INS, 883 F.2d 788, 791 (9th Cir. 1989); Arteaga [v. INS, 836 F.2d 1227, 1231-1232 (9th Cir. 1988)]. "Political neutrality" may include the absence of any political opinion. Arriaga-Barrientos v. INS, 937 F.2d 411, 413 (9th Cir. 1991). An appli cant can establish his political neutrality by pro nouncement, id. at 414; Bolanos-Hernandez [v. INS, 767 F.2d 1277, 1286-1287 (9th Cir. 1984)], or by his actions, Ramos-Vasquez v. INS, 57 F.3d 857, 863 (9th Cir. 1995) (applicant deserts rather than illegally shoot deserters.)

Sangha, 103 F.3d at 1488.

We adhere to this precept¹ notwithstanding the statement of the Supreme Court in 1992:

Elias-Zacarias appears to argue that not taking sides with any political faction is itself the affirmative expression of a political opinion. That seems to us not ordinarily so, since we do not agree with the dis sent that only a "narrow, grudging construction of the concept of `political opinion,' " . . . would distin guish it from such quite different concepts as indif ference, indecisiveness, and risk averseness.

INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992) (emphasis added).

To be sure, the Court did not reach the question whether neutrality amounts to holding a political opinion, because it held that Elias-Zacarias did not meet the high burden of showing that "the record . . . compels the conclusion that he has a `well-founded fear' that the guerrillas will persecute him because of that political opinion." See id. (first emphasis added). Thus, our task in similar cases subsequent to EliasZacarias is to determine whether the record compels the conclusion that the petitioner has a well-founded fear of persecution because of his or her political opinion. See id.; see, e.g., Borja v. INS, 175 F.3d 732, 735 (9th Cir. 1999) (in banc) (holding that evidence must compel the conclusion that guerrillas persecuted petitioner on account of her political opinion); Gonzales-Neyra v. INS, 122 F.3d 1293, 1296 (9th Cir. 1997) (requiring that evidence show persecution has been or will be on account of political opinion); Sangha , 103 F.3d at 1487 (stating that "[a]pplicants can no longer establish that their persecution was `on account of' political opinion by inference"). Here, Petitioner argues that a reasonable fact finder would be compelled to find that she was persecuted on account of her neutral political belief.

I.

Rivera-Moreno worked as an assistant nurse at a local health unit in Perquin, El Salvador. Her first contact with the guerrillas was in 1980, when they came into her clinic and took medicine from her at gunpoint. In 1981 the guerrilla forces took over Perquin and demanded that she join them and give medical care to their wounded. She refused and explained in her testimony that she told them: "I didn't belong to any party. My rule was to help anybody. It didn't matter if it came from the guerrillas or the army or any group." E.R. at 34. Regardless, they forced her to care for their wounded for nine days, at which time she escaped and moved to the town of San Miguel.

In 1989, eight years after her kidnaping in Perquin, guerrillas took over San Miguel and discovered documents that indicated that Rivera-Moreno was a nurse. The guerrillas again pressured her to join them, but she refused. This time she did not repeat her statements of neutrality expressed eight years earlier. She testified that "[the guerrillas ] told me that they needed me very much and I refused to accompany them. I opposed that." E.R. at 35. The record contains no evidence to suggest that the guerrillas in San Miguel knew of her political neutrality. The San Miguel guerrillas retaliated against her for refusing to help them by destroying her house with a bomb. They told her that the bomb was "just the beginning," E.R. at 36, and again forced her to care for their wounded. She escaped after three days of captivity.

Rivera-Moreno returned to San Miguel two years later, at which time the guerrillas left her a handwritten note demanding that she return to Perquin to assist them. She ignored the note and then received a second typewritten note, which demanded that she report to Perquin within 15 days or her life would be in danger. About nine days after receiving this note, she fled to the United States on April 27, 1991.

Two days after arriving here, the Immigration and Naturalization Service ("INS") initiated exclusion proceedings and charged her with being excludable under 8 U.S.C. S 1182(a)(19), as an immigrant who has procured a visa or other documentation by fraud or by willfully misrepresenting a material fact and not being in possession of a valid immigrant visa. Petitioner applied for asylum under 8 U.S.C. S 1158(a)² and withholding of deportation under 8 U.S.C. S 1253(h).³ The immigration judge denied asylum and withholding of deportation and granted voluntary departure. On appeal, the BIA agreed that Petitioner was not eligible for asylum because she was not persecuted as a result of an actual or imputed political opinion.

The BIA's jurisdiction arose under 8 C.F.R. S 3.1(b)(2). This court has jurisdiction to review the petition under 8 U.S.C. S 1105a.⁴ The petition was timely filed as provided by 8 U.S.C. S 1252(b)(1).

The BIA's factual decision that an alien has not established eligibility for asylum and withholding of deportation is reviewed under the substantial evidence standard. Elias-Zacarias, 502 U.S. at 481; Singh v. INS, 134 F.3d 962, 966 (9th Cir. 1998). The Court has emphasized that this standard is extremely deferential, requiring a reviewing court to uphold the Board's denial unless an alien demonstrates "that the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution." Elias-Zacarias, 502 U.S. at 483-84.

II.

Withholding deportation is distinct from granting asylum. Withholding only bars deporting an alien to a particular country; asylum permits an alien to remain in the United States and to apply for permanent residency after one year. INS v. Aguirre-Aguirre, 526 U.S. , 119 S. Ct. 1439, 1443 (1999).

Asylum is granted at the discretion of the Attorney General if the alien qualifies as a "refugee."

The term "refugee" means [ ] any person who is out side any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecu tion or a well-founded fear of persecution on account of race, religion, nationality, membership in a partic ular social group, or political opinion . . . .

8 U.S.C. S 1101(a)(42)(A). Withholding deportation is mandatory if the "alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group or political opinion." 8 U.S.C. S 1253(h)(1). We will examine Petitioner's application for asylum first, because if she fails to satisfy the requirement for asylum, she will necessarily fail the more stringent requirement for withholding deportation. Kazlauskas v. INS, 46 F.3d 902, 907 (9th Cir. 1995).

III.

An applicant may qualify as a refugee if she can show she was a victim of persecution or has a well-founded fear of persecution upon return to her home country. See 8 U.S.C. S 1101(a)(42)(A); Desir v. Ilchert, 840 F.2d 723, 728 (9th Cir. 1988). The applicant must show that her persecution was or will be on account of one of the categories protected under 8 U.S.C. S 1101(a)(42)(A). An alien who establishes past persecution is presumed to have a well-founded fear of future persecution. See 8 C.F.R. S 208.13(b)(1)(i); Prasad v. INS, 101 F.3d 614, 617 (9th Cir. 1996). "This presumption may be overcome by evidence that since the...