Salazar-Paucar v. I.N.S., 99-71306.

• Decision Date: 28 February 2002
• Docket Number: No. 00-70811.,No. 99-71306.,99-71306.,00-70811.
• Citation: 281 F.3d 1069
• Parties: Dagoberto Hermes SALAZAR-PAUCAR, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

281 F.3d 1069

Dagoberto Hermes SALAZAR-PAUCAR, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 99-71306.

No. 00-70811.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 15, 2001.

Filed February 28, 2002.

Gary Finn, Indio, California, for the petitioner.

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

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

Before: WARDLAW, PAEZ, and TALLMAN, Circuit Judges.

OPINION

PAEZ, Circuit Judge.

Petitioner Dagoberto Hermes Salazar-Paucar petitions for review of a Board of Immigration Appeals ("BIA") decision denying his application for asylum and withholding of deportation. He asserts that the BIA erred in concluding that he did not suffer past persecution by the Sendero Luminoso (also known as the Shining Path) guerrillas in Peru when he received multiple death threats, his parents were beaten, and the other members of the town government in his position were murdered by the guerrillas. He also contends that the BIA erred in concluding that he no longer had a well-founded fear of persecution; the BIA relied on the fact that Petitioner lived "unmolested" away from his hometown for eighteen months, that there were changed conditions in Peru, and the seven years since Petitioner left Peru. We hold that the evidence compels a finding of past persecution and that the Immigration and Naturalization Service ("INS") failed to rebut the presumption of future persecution. Accordingly, we grant Salazar-Paucar's petition.

I. FACTUAL AND PROCEDURAL BACKGROUND

Petitioner is a native and citizen of Peru who entered the United States without inspection in October 1992. He seeks asylum and withholding of deportation for alleged persecution by the Shining Path guerrillas in Peru. The Shining Path is an armed Maoist revolutionary group that seeks to overthrow the Peruvian government by force. A 1991 report by Amnesty International indicated that the Shining Path had tortured and killed thousands of Peruvians, frequently subjecting its victims to mock trials before executing them.

In 1989, Petitioner was elected one of four barrio presidents in his hometown of San Pedro de Cajas, Peru. His duties were roughly equivalent to a city councilperson and concerned town maintenance and various administrative matters. Petitioner testified at his asylum hearing that, as a result of his position as a barrio president, he received threats from the Shining Path through a third party stating that persons in authority should resign or risk death. He also testified that death threats, some of which identified him by name, were painted in the town's main square.

In April 1990, the Shining Path guerrillas murdered the mayor of San Pedro de Cajas, from whom Petitioner took orders as a barrio president. Shortly thereafter, the Peruvian army formed a local defense group in Petitioner's town, the "Rondas Campesinas," of which Petitioner and the three other barrio presidents were leaders by virtue of their municipal positions. Petitioner testified that he remained a leader of the Rondas Campesinas even though it was viewed as an act of defiance toward the Shining Path.

While Petitioner was on a trip in December 1990, some 30 to 40 Shining Path guerrillas came to San Pedro de Cajas with a list of 25 people that they were targeting. Petitioner testified that he believed that his name was on the list because the Shining Path guerrillas went to his house to look for him, broke down the front door, and beat his father and mother when they learned that he was not there. The Shining Path took eight people whose names appeared on the list to the town square, where they held a mock trial and then summarily executed the eight individuals by shooting them against a town wall. This event was documented in several newspaper articles submitted by Petitioner and corroborated by eye witness testimony at his asylum hearing. Petitioner's father-in-law and one of the four barrio presidents were among those who were murdered.

Two days after attending the victims' funerals, Petitioner, along with his parents and siblings, fled to Lima, the capital of Peru. For the next one and one-half years, Petitioner had no interaction with the Shining Path. Then, in July 1992, he found a death threat painted on the wall of his house in Lima. The threat did not mention Petitioner by name but included general language threatening death to the "enemies of the town." The painting also included the symbol of the Shining Path — a rifle and sickle — and a reference to the group's leader. A few weeks later, Petitioner learned from friends that the two remaining barrio presidents had been murdered that month after they fled San Pedro de Cajas to other regions of Peru.

Two weeks later, Petitioner fled Peru out of fear that the Shining Path would find and kill him.¹ Petitioner entered the United States without inspection at Brownsville, Texas, in October 1992. Three days after his arrival in the United States, the INS issued an Order to Show Cause charging Petitioner as deportable for entering without inspection. Petitioner then applied for asylum and withholding of deportation. After several hearings in which Petitioner and one other witness testified, the Immigration Judge ("IJ") issued an oral decision denying Petitioner's application.

Petitioner then appealed to the BIA, which did not issue a decision until September 1999, six years later. The BIA found that Petitioner "testified credibly that he has a fear of being kidnaped or killed by the Shining Path guerrillas." Although the BIA did not find that Petitioner had expressed any political opinion, it found that the Shining Path had imputed a political opinion to him.

The BIA concluded, however, that Petitioner failed to establish that he was eligible for asylum because he "ha[d] not established past persecution or a well-founded fear of persecution if returned to his native country." First, it noted that Petitioner had lived "unmolested" for eighteen months in Lima. Although a death threat had been painted on the wall of Petitioner's house in Lima, the BIA found no evidence that the threats were directed at Petitioner or that Petitioner had been harmed in any way. Thus, the BIA concluded, Petitioner's fear of persecution was not countrywide.

Second, the BIA relied on the passage of time, not only between the incidents and the hearing before the IJ, but also in the following six years during which Petitioner's case was pending before the BIA.

Third, the BIA concluded that, even assuming that Petitioner had established past persecution, the INS had successfully rebutted the presumption by demonstrating changed country conditions and the passage of time. The BIA found that the 1992 arrest of the Shining Path's leader, Abimael Guzman, "len[t] credibility to Peru[vian] President Fujimori's claim that the counter-insurgency strategy is leading to the pacification of the country, and ... that internal divisions in the guerrilla organization have further weakened that organization's capacity to carry out sustained armed attacks."

Thus, after an independent review of the record, the BIA affirmed the IJ's denial of asylum and withholding of deportation. The BIA then dismissed Petitioner's appeal, granted him 30 days to voluntarily depart, and otherwise ordered him deported. This appeal followed.

While this appeal was pending, Petitioner filed a motion to reopen to apply for suspension of deportation. The BIA denied the motion on the ground that the "stop time rule" applied to Petitioner and therefore he failed to establish prima facie eligibility for suspension of deportation. Petitioner also appeals this decision.

II. JURISDICTION

We have jurisdiction under § 106(a)(1) of the Immigration and Nationality Act ("INA"), 8 U.S.C. § 1105a(a)(1), as amended by the transitional rules for judicial review under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub.L. 104-208, 110 Stat. 3009 (Sept. 30, 1996). Cruz-Navarro v. INS, 232 F.3d 1024, 1026 (9th Cir.2000).²

III. STANDARD OF REVIEW

When the BIA conducts a de novo review of the IJ's decision, as here, we review the BIA's decision rather than the IJ's, except to the extent that the BIA expressly adopts the IJ's ruling. Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir.2000) (citing Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir.1995)). We must uphold the BIA's decision if it is "supported by reasonable, substantial, and probative evidence on the record considered as a whole." INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) (quoting 8 U.S.C. § 1105a(a)(4)). However, "[the BIA's] decision must be reversed if a reasonable factfinder would have to conclude that the requisite persecution or fear has been shown." Tagaga v. INS, 228 F.3d 1030, 1034 (9th Cir.2000).

IV. DISCUSSION

A. Eligibility for Asylum

An alien is eligible for asylum if he establishes that he is a "refugee," which is an alien who is unable or unwilling to return to his home country because of 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. § 1101(a)(42)(A); Tagaga, 228 F.3d at 1033; Navas v. INS, 217 F.3d 646, 654 (9th Cir.2000). The Attorney General has the discretion to grant asylum to an eligible applicant. Tagaga, 228 F.3d at 1033; Navas, 217 F.3d at 654.

A well-founded fear of future persecution must be both "subjectively genuine" and "objectively reasonable." Cordon-Garcia, 204 F.3d at 990. The subjective component may be satisfied by the applicant's testimony. Id. We must accept the applicant's testimony as true if, as here, the petitioner is found to be credible or there is no explicit adverse finding of credibility. Kataria v. INS, 232 F.3d...