Tarubac v. Immigration & Naturalization Serv., 97-70964

• Decision Date: 11 December 1998
• Docket Number: No. 97-70964,97-70964
• Citation: 182 F.3d 1114
• Parties: (9th Cir. 1999) ROSARIO CABANATAN TARUBAC, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1114

182 F.3d 1114 (9th Cir. 1999)

ROSARIO CABANATAN TARUBAC, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 97-70964

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted December 11, 1998--San Francisco, California

Submission Deferred December 29, 1998

Resubmitted July 6, 1999

Filed July 13, 1999

[Copyrighted Material Omitted]

COUNSEL: Michael P. Karr, Sacramento, California, for the petitioner.

Kathryn M. McKinney, 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. INS No. A72 693 635.

Before: Betty B. Fletcher, Warren J. Ferguson, and David R. Thompson, Circuit Judges.

Opinion by Judge B. Fletcher

OPINION

B. FLETCHER, Circuit Judge:

Rosario Cabanatan Tarubac, a citizen and national of the Philippines, petitions for review of a decision by the Board of Immigration Appeals (BIA) dismissing her appeal from an Immigration Judge's denial of her application for asylum. Tarubac alleges that she has a well-founded fear that the New People's Army (NPA) will persecute her if she returns to the Philippines, and that such persecution will be on account of her political opposition to the NPA's communist cause. We deferred submission of this case until the filing of en banc decisions in Borja v. INS, 175 F.3d 732, (9th Cir. filed Apr. 30, 1999), and Briones v. INS, 175 F.3d 727, (9th Cir. filed Apr. 30, 1999). We now grant Tarubac's petition for review.¹

I.

As our court in Borja recently described,"[t]he New People's Army . . . is a violent, revolutionary Communist group which actively opposes the Philippine government. The NPA has a well-documented history of political violence, including the murder of its opponents." 175 F.3d at 734,. Tarubac's experiences with the NPA fit this description.

In the mid-1980s, Tarubac lived and worked in Batac, in the province of Ilocos Norte, the Philippines. She also in the mid-1980s joined a Christian group, and through that group taught Bible classes and performed relief work in poor rural areas. Sometime in 1986, members of the NPA came to the house where Tarubac was staying and demanded that Tarubac stop teaching the Bible, join the NPA, and pay a 30% "revolutionary tax" to the NPA. Tarubac did not give a definitive answer to these demands. Approximately one month later, an NPA operative came to Tarubac's home demanding again that she join the NPA and pay the revolutionary tax. Tarubac replied that she would not join or pay the tax because she was politically and religiously opposed to communism, which the NPA espoused. In Tarubac's words, she told the NPA operative that "I do not believe in the communist system. There's no justice and there's no freedom. And I told them that the communist belief -- communists do not believe in -- in God."

About one month after Tarubac voiced her opposition to the NPA, two more NPA operatives came to her home, apprehended her, and took her to a house somewhere in the mountains. There an NPA leader told Tarubac that she would be killed if she did not agree to join the NPA. Tarubac again refused to join. In response, the NPA beat her, pulled her hair, and locked her in a small room where she was kept blindfolded, without food, for three days.

Frightened that the NPA would harm her again, Tarubac soon moved to the metropolitan Manila area, an eight-hour drive away. She did not, however, succeed in eluding the NPA. In May, 1987, an NPA messenger delivered a letter to Tarubac in Manila stating that the NPA knew of her opposition to its cause, knew of her whereabouts, and intended to come "pick her up." Tarubac immediately resigned from her job in Manila, went into hiding, and one month later left the Philippines to work in Saudi Arabia.

Tarubac returned to the Philippines to get married in January, 1991. After the wedding she and her husband went to his home in Cagayan province, in northeast Luzon. While there, a man identifying himself as an NPA member approached them and demanded that they provide arms and money. Later, on the night of April 26, 1991, several men with guns came to Tarubac's home. They banged on the door of the house and asked to speak with Tarubac's husband. Tarubac and her husband were certain these men were NPA operatives. Tarubac's husband left by the rear exit of the house and fled to Manila. Tarubac hid in the house all night, and the next day joined her husband in Manila. In May, 1991, Tarubac and her husband received another letter from the NPA threatening to "pick them up" for failing to pay the revolutionary tax. Tarubac and her husband went into hiding, and shortly thereafter left for Saudi Arabia.

In early 1994, Tarubac's work authorization in Saudi Arabia was soon to expire. Based on what members of her family still in the Philippines had told her, Tarubac knew that the NPA continued to be active. She feared that her life would again be in danger if she returned to the Philippines. On July 17, 1994, Tarubac entered the United States on a B-2 visa. She applied for asylum on August 23, 1994, while her B-2 visa was still valid. Her application was denied, but she renewed it after the INS placed her in deportation proceedings in 1995. The IJ who heard Tarubac's testimony found her to be "sincere and genuine" and gave her testimony "full weight as evidence." The IJ concluded, however, that Tarubac did not have a well-founded fear of persecution. Tarubac appealed to the BIA, which affirmed the IJ's decision over one dissent. The BIA concluded that any persecution Tarubac suffered was not on account of her political opinion as she claimed. The BIA also summarily stated that recent decreases in the NPA's strength meant that Tarubac's fear of future persecution was not well-founded. This petition for review followed.

II.

To be eligible for asylum, Tarubac must show that she is "unwilling or unable" to return to her 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). Evidence of past persecution alone can establish eligibility for asylum. See Meza-Manay v. INS, 139 F.3d 759, 763 (9th Cir. 1998). An asylum applicant who establishes that she has suffered past persecution on one of the enumerated grounds is entitled to "the legal presumption that she has a well-founded fear of future persecution. " Borja, 175 F.3d at 737, see 8 C.F.R. S 208.13(b)(1)(i); Prasad v. INS, 101 F.3d 614, 617 (9th Cir. 1996).

1.

Tarubac argues that the BIA erred in finding that the perse- cution she suffered was not on account of her political opinion. We review de novo the BIA's construction of the statutory standards for asylum eligibility. See Ratnam v. INS, 154 F.3d 990, 994 (9th Cir. 1998); Fisher v. INS , 79 F.3d 955, 961 (9th Cir. 1996) (en banc). We review the BIA's factual findings for "substantial evidence," and will uphold them if supported by "reasonable, substantial, and probative evidence" in the record. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).

Where an asylum applicant claims past persecution on account of political opinion, 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. See Vera-Valera v. INS, 123 F.3d 1302, 1304 (9th Cir. 1997). In this case, it is undisputed that Tarubac suffered persecution when she was kidnaped, beaten, held for a period of days, and threatened with more violence.² It is also undisputed that she holds a political opinion adverse to the NPA, and that this opinion was known to her persecutors. The second time the NPA approached her to demand that she join their ranks and pay the revolutionary tax, Tarubac said she opposed communism because "[t]here's no justice and there's no freedom." Thus, the only question here is whether the persecution Tarubac suffered was on account of her political opinion.³

The BIA found that the "attempted recruitment and financial demands inflicted upon [Tarubac] by the NPA are consistent with the nonpolitical end of gaining membership and extorting money." In so finding, the BIA apparently treated the presence of a nonpolitical motive as evidence of the absence of a political motive. This was an error of law. As our court in Borja recently made clear,"the plain meaning of the phrase `persecution on account of the victim's political opinion,' does not mean persecution solely on account of the victim's political opinion. That is, the conclusion that a cause of persecution is economic does not necessarily imply that there cannot exist other causes of the persecution. " 175 F.3d at 734, (quoting Osorio v. INS, 18 F.3d 1017, 1028 (2d Cir. 1994)); see Singh v. Ilchert, 63 F.3d 1501, 1509 (9th Cir. 1995) ("[P]ersecutory conduct may have more than one motive, and so long as one motive is one of the statutory grounds, the requirements have been satisfied."). Thus, a finding that the persecution was motivated by nonpolitical factors is largely irrelevant to an applicant's eligibility for asylum, unless the BIA finds substantial evidence that the only motivation for the persecution was nonpolitical. In short, the presence of a nonpolitical motive for persecution does not, without more, prove the absence of a political motive.⁴

We find that Tarubac was persecuted at least in part because of her political opinion. Although the NPA began recruiting her and demanding that she pay a revolutionary tax before they knew of her political views, the most extreme persecution came only after Tarubac had expressed her opposition to communism. Specifically, it was not until Tarubac told the NPA of her opposition to communism that NPA operatives threatened her life, kidnaped her, beat...