Velarde v. I.N.S.

• Decision Date: 10 April 1998
• Docket Number: No. 96-71002.,96-71002.
• Citation: 140 F.3d 1305
• Parties: Soledad Cristina VELARDE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

140 F.3d 1305

Soledad Cristina VELARDE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 96-71002.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 2, 1998.

Decided April 10, 1998.

Soledad Cristina Velarde, pro per, La Mirada, CA.

Michele Y.F. Sarko, Office of Immigration Litigation, Civil Division, Depart. of Justice, Washington, DC, for respondent.

Petition to Review a Decision of the Immigration and Naturalization Service. INS No. A72-542-391.

Before: FLETCHER, MAGILL,^* and THOMAS G. NELSON, Circuit Judges.

OPINION

FLETCHER, Circuit Judge:

Soledad Cristina Velarde, a native and citizen of Peru, appeals the BIA's summary denial of her application for asylum or withholding of deportation. Velarde was a bodyguard for the daughters of then-President of Peru, Alan Garcia, before she fled to the United States following numerous death threats, receipt of a package bomb and an abduction attempt by members of the terrorist guerilla group Sendero Luminoso. Velarde claims that if she is returned to Peru, she will continue to be persecuted by Sendero on account of her political opinions. We hold that the BIA abused its discretion in denying relief to Velarde and remand.

I.

Velarde, a 36 year old native and citizen of Peru, was ordered on March 21, 1995, to show cause why she should not be deported for entering the United States without inspection on or about December 1, 1991. In the hearing before the Immigration Judge (IJ) on October 16, 1995, Velarde conceded deportability, but applied for relief from deportation on the basis of fear of persecution for her political opinion if she returns. Velarde testified that she fears persecution if returned to Peru because her life was threatened by the Peruvian terrorist group Sendero Luminoso ("Shining Path").

Velarde worked as a security guard for the daughters of then-President of Peru, Alan Garcia, from 1986 to 1988. Her duties included escorting the girls to the presidential palace after school, to parties and to other public functions. Prior to 1986, Velarde worked for the Intelligence Service of the National Police Force. From 1988 to 1990, she worked as a police officer in Lima. Thereafter, she worked at the high school for children of police officers until she fled the country in late November 1991.

Velarde testified that she received threatening phone calls at the high school between May and October 1991, during which the anonymous callers told her that Sendero Luminoso was watching her and would get her because of her work in gathering intelligence for the government. The callers identified themselves only with the salutation "long live Comrade Gonzalo," the leader of Sendero Luminoso. In June 1991, the commander of the intelligence police advised Velarde to move out of her parents' home where she had been living because every officer that had taken part in the security of President Garcia's daughters had been receiving similar threats. She then moved in with her aunt, but continued to receive threatening phone calls. Later that month, two other members of the security detail for the ex-President's daughters were killed, apparently by Sendero Luminoso.

On November 15, 1991, Velarde received a package at the high school addressed to her but without a return address. Her suspicions aroused, Velarde called the police who evacuated her office and discovered that the package contained explosives. No one was injured, but a symbol of a sickle and hammer inside the package indicated that it was from Sendero Luminoso. After making a report, the police commander advised Velarde to be careful in her movements.

That same day, while on her way home, three people parked in a truck near Velarde's residence leapt out at her and tried to force her into the truck. A woman grabbed Velarde's face and two others tried to knock her off balance. Shots were fired and Velarde dropped to the ground, trying to take cover in the bushes near the house. One of the would-be abductors was killed by police or security personnel in the area, and the two others ran away. One of those two was injured and subsequently arrested. He admitted to belonging to Sendero Luminoso. Velarde was subsequently advised and assisted by security personnel to leave the country.

Velarde testified before the IJ that she fears for her life if returned to Peru. She explained that her family has received approximately 20 threats from Sendero Luminoso since she left Peru, the most recent one 15 days prior to her hearing before the IJ. These threats have taken the form of anonymous letters with blood and symbols of Sendero Luminoso on them. Velarde further testified that she cannot relocate internally in Peru because Sendero Luminoso operates in the entire country. The INS did not offer any evidence before the IJ, apart from its cross examination of Velarde. Nor did the Department of State offer any advisory opinion regarding country conditions in Peru.

In his oral decision of October 16, 1995, the IJ specifically found Velarde to be a credible witness. The IJ also explained that Velarde's lack of documentary evidence supporting her claim was not "fatal."¹ Nevertheless, the IJ ruled, at least in part because of her lack of documentary evidence, that Velarde had not met her burden of proof to warrant asylum.

Characterizing Velarde's claim as fear of persecution on the basis of her membership in a "social group of ... ex-policemen," the IJ seemed to conclude that no one in Velarde's position could reasonably fear persecution.² The IJ also ruled that "the package bomb, telephone calls and the attempted kidnapping [were not] so extreme as to warrant" asylum or withholding of deportation. As a result, the IJ declared that he had "no other alternative" but to deny Velarde's applications for asylum and withholding of deportation. The IJ did grant voluntary departure.

Velarde appealed the IJ's decision to the BIA. In its September 30, 1996, decision affirming the order of deportation,³ the BIA noted that the IJ "specifically found her to be a credible witness," and that such a finding was "entitled to great weight." However, the BIA also affirmed the IJ's conclusion that Velarde's claims had not been "corroborated." Then, citing Matter of Fuentes, 19 I. & N. Dec. 658, 1988 WL 235456 (BIA 1988), the BIA in a single sentence denied relief, stating "[w]e find that even if her claims had been corroborated, which they were not, the respondent has not established that the threatened harm directed at her was on account of her political opinion or imputed political opinion."

We will uphold the BIA's denial of asylum if it is supported by reasonable, substantial and probative evidence in the record. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992). Similarly, the BIA's decision whether to withhold deportation is reviewed for substantial evidence. Berroteran-Melendez v. INS, 955 F.2d 1251, 1255 (9th Cir.1992). Review is limited to the administrative record. Aruta v. INS, 80 F.3d 1389, 1393 (9th Cir.1996). However, we will consider the record as a whole, including evidence which contradicts the BIA's findings. Turcios v. INS, 821 F.2d 1396, 1398 (9th Cir.1987). "[W]here the IJ expressly finds certain testimony to be credible, and where the BIA makes no contrary finding, we `accept as indisputed' 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)). We review de novo the BIA's determinations of purely legal questions regarding the requirements of the Immigration and Nationality Act. Fisher v. INS, 79 F.3d 955, 961 (9th Cir.1996) (en banc).

II.

Velarde applied for both withholding of deportation and asylum. The Attorney General must withhold deportation if an 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. § 1253(h).

To obtain withholding of deportation, the applicant must demonstrate a "clear probability of persecution" by the government or a group that the government cannot or will not control. Mendoza Perez v. INS, 902 F.2d 760, 761 (9th Cir.1990). The standard for determining a "clear probability" sufficient to warrant withholding of deportation is that the persecution is "more likely than not" to occur. Gomez-Saballos v. INS, 79 F.3d 912, 914 (9th Cir.1996). We will not reverse the BIA's decision not to withhold deportation "unless a reasonable factfinder would be compelled to find the petitioner eligible for the relief sought." Id.

The Attorney General may also in her discretion grant asylum to an alien present in the United States who is a "refugee." 8 U.S.C. § 1158(b). A "refugee" is an alien who is unable or unwilling to return to his or her country of origin "because of persecution or 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). Either past persecution or a well-founded fear of future persecution provides eligibility for a discretionary grant of asylum.⁴

Establishing the well-founded fear of persecution sufficient to qualify for asylum requires a "subjectively genuine" and "objectively reasonable" fear of persecution. Arriaga-Barrientos v. INS, 937 F.2d 411, 413 (9th Cir.1991). The Supreme Court, in the seminal case INS v. Cardoza-Fonseca, 480 U.S. 421, 431, 107 S.Ct. 1207, 1212-13, 94 L.Ed.2d 434 (1987), clarified that this standard is less stringent than the standard for withholding of deportation.

"The subjective component requires that the applicant have a genuine concern that he will be persecuted," Aguilera-Cota v. INS, 914 F.2d 1375, 1378 (9th Cir. 1990), and may be satisfied by the applicant's testimony that she genuinely fears persecution. Acewicz v. INS, 984 F.2d...