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Case Name:RIVERA MORENO V INS
Case Number:	Date Filed:
98-71463	05/23/00
 

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SILVIA RIVERA-MORENO, a.k.a.
Vilma Aracely Argueta,
                                                     No. 98-71463
Petitioner,
                                                     BIA No.
v.
                                                     A71786355
IMMIGRATION AND NATURALIZATION
                                                     OPINION
SERVICE,
Respondent.

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

Submitted December 9, 1999*
San Francisco, California

Filed May 23, 2000

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

Opinion by Judge Aldisert;
Concurrence by Judge Hawkins

_________________________________________________________________
*The panel unanimously finds this case suitable for decision without
oral argument. Rule 34(a), Federal Rules of Appellate Procedure; Rule 34-
4, Ninth Circuit Rules.
**Ruggero J. Aldisert, Senior Judge, United States Court of Appeals for
the Third Circuit, sitting by designation.
                               5401




COUNSEL

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.

_________________________________________________________________

OPINION

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 applica-
tion 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 well-
founded fear of persecution on account of . . . political opin-
ion." Id.

This court follows the doctrine of "hazardous neutrality," in
which a lack of political opinion may constitute a political

                               5404


opinion for purposes of the INA. We define hazardous neu-
trality as "show[ing] political neutrality in an environment in
which political neutrality is fraught with hazard, from govern-
mental 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:
_________________________________________________________________
1 Other Courts of Appeals have refused to explicitly adopt the doctrine
of political neutrality. See, e.g., Alvarez-Flores v. INS, 909 F.2d 1, 6 n.4
(1st Cir. 1990) ("Only the Ninth Circuit clearly has held that neutrality is
a political opinion within the meaning of the Act."); Perlera-Escobar v.
Executive Office for Immigration, 894 F.2d 1292, 1297-98 (11th Cir.
1990) (pointing out that acceptance of neutrality as a political opinion
"would create a sinkhole that would swallow the rule"); Cruz-Lopez v.
INS, 802 F.2d 1518, 1520 n.3 (4th Cir. 1986) (declining to follow the
Ninth Circuit rule); M.A. A26851062 v. INS, 899 F.2d 304, 315 (4th Cir.
1990) (en banc) (refusing to accept or reject neutrality as a political opin-
ion). The Eighth Circuit has not adopted our teachings, but it has implied
that it may recognize neutrality as a political opinion when a petitioner
shows "that their fear of persecution is connected to or based on their
political neutrality. . . . [not] fear of[ ] general violence and unrest."
Lopez-Zeron v. United States, 8 F.3d 636, 638 (8th Cir. 1993).

                               5405


      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 show-
ing 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 Elias-
Zacarias is to determine whether the record compels the con-
clusion that the petitioner has a well-founded fear of persecu-
tion 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 guer-
rillas persecuted petitioner on account of her political opin-
ion); 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

                               5406


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, guerril-
las took over San Miguel and discovered documents that indi-
cated 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 demand-
ing 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 Natural-
ization 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

                               5407


other documentation by fraud or by willfully misrepresenting
a material fact and not being in possession of a valid immi-
grant 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 with-
holding 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
_________________________________________________________________
2 Section 1158(a) reads:

      (1) In general

       Any alien who is physically present in the United States or
      who arrives in the United States (whether or not at a designated
      port of arrival and including an alien who is brought to the United
      States after having been interdicted in international or United
      States waters), irrespective of such alien's status, may apply for
      asylum in accordance with this section or, where applicable, sec-
      tion 1225(b) of this title.

8 U.S.C. S 1158(a).
3 This provision was removed by the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, S 307(a)
(1996). Because Rivera-Moreno's case was brought before the effective
date of the act, we will apply the pre-amendment law.
4 The 1996 Act replaced 8 U.S.C.S 1105a with a new judicial review
provision codified at 8 U.S.C. S 1252. Because Rivera-Moreno's deporta-
tion proceedings commenced before April 1, 1997, this court continues to
exercise jurisdiction pursuant to 8 U.S.C. S 1105a. See Sebastian-
Sebastian v. INS, 195 F.3d 504, 505 n.2 (9th Cir. 1999).

                               5408


(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 evi-
dence he presented was so compelling that no reasonable fact-
finder 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 coun-
try; 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 man-
datory if the "alien's life or freedom would be threatened in
such country on account of race, religion, nationality, mem-
bership 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).

                               5409


III.

[1] 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 perse-
cution is presumed to have a well-founded fear of future per-
secution. 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 time the persecution
occurred conditions . . . have changed to such an extent that
[the petitioner] no longer has a well-founded fear of being
persecuted if he were to return." Prasad, 101 F.3d at 617
(internal quotation marks omitted). However, we have empha-
sized that "the applicant must produce evidence from which
it is reasonable to believe that the harm was motivated, at
least in part, by an actual or implied protected ground." Borja,
175 F.3d at 736.

[2] It is clear that persecution for failure to contribute nurs-
ing services is not a protected ground under S 1101(a)(42)(A)
and Petitioner does not argue that it is. Rather, her argument
is anchored on the theory that she specifically avowed to the
Perquin guerrillas that she was neutral and that this statement
constituted an expression of a political opinion in accordance
with the teachings of this court. See Sangha, 103 F.3d at 1488
("[T]he applicant must . . . show that [her] opinion was articu-
lated sufficiently for it to be the basis of . . . persecution
. . . ."). Our task then is to examine the record to determine
whether she demonstrated that the evidence that she was per-
secuted because of her political neutrality "was so compelling
that no reasonable factfinder would fail to find the requisite
fear of persecution." Elias-Zacarias , 502 U.S. at 483-84.

                               5410


IV.

[3] To qualify for asylum an applicant "must tie the perse-
cution to a protected cause . . . [and] show the persecutor had
a protected basis . . . in mind in undertaking the persecution."
Canas-Segovia v. INS, 970 F.2d 599, 601 (9th Cir. 1992). We
are persuaded that Petitioner failed to demonstrate a nexus
between her expression of neutrality at Perquin in 1981--an
affirmative expression of political opinion--and the subse-
quent bombing of her house eight years later in San Miguel
because she refused to deliver nursing services. An expression
of a political opinion must not be considered in vacuo; it must
be a direct and immediate cause of the fear of persecution,
although it need not be the only cause. See Borja, 175 F.3d
at 736.

[4] The record contains no evidence that Petitioner
expressed her political neutrality in the eight years between
the incident in Perquin and the retaliatory action in 1989.
Under these circumstances we cannot conclude as a matter of
law that the immigration judge was unreasonable in finding
that the guerrillas

      were threatening her to try to coerce her into donat-
      ing her skill towards their forces. Her conduct was
      not an expression of any political nature, and there
      is no evidence to indicate that the guerrillas per-
      ceived her to be politically opposed to them but that
      they simply wanted her to give her skills to healing
      and nursing their forces.

E.R. at 22. The BIA agreed with the IJ's findings of fact: "We
concur in the Immigration Judge's decision that the appli-
cant's testimony demonstrates that the guerrillas were inter-
ested in her because they wanted her to treat wounded
individuals, not because of her actual or imputed political
opinion or for any of the other enumerated grounds .. . ." E.R.
at 3. Here, too, we cannot conclude that this was unreasonable
as a matter of law.

                               5411


[5] The IJ's findings of fact are supported by substantial
evidence. When Petitioner refused to join the guerrillas in
1981, she told them that she "didn't belong to any party," and
that her "rule was to help anybody." E.R. at 34. However, she
neither testified nor presented evidence to show that she was
subsequently persecuted by the Perquin guerrillas in response
to that statement. Her testimony is not so persuasive as to
compel the conclusion that they retaliated against because of
her political neutrality. Although she was forced to contribute
her nursing skills to them for nine days until she escaped, the
Perquin guerrillas did not pursue her and they did not punish
her. Indeed, she had no contact with any part of the guerrilla
movement until eight years later.

[6] The San Miguel guerrillas attempted to recruit Peti-
tioner in 1989 because they found documents that showed she
was a nurse. They did not pursue her because of her neutral
stance. See E.R. at 34-35. She did not express any political
views, neutral or otherwise, to the guerrillas who attempted to
recruit her in 1989. Thus, Petitioner presented no evidence to
suggest the 1989 guerrillas knew she was neutral; they only
knew that she refused to contribute her nursing skills to them.
They bombed her home in retaliation for her refusal to deliver
these services to them, not because of her political beliefs.

Because we hold that she was not persecuted on account of
political opinion and does not satisfy the requirements for
asylum, she necessarily failed to meet the higher standard for
withholding of deportation. See Kazlauskas, 46 F.3d at 907.

* * * *

Substantial evidence supports the findings that Rivera-
Moreno was not persecuted on account of political opinion.

DENIED.

_________________________________________________________________

HAWKINS, Circuit Judge, specially concurring:

Quite frankly, the disposition of this appeal requires no
more than an unpublished memorandum, as the result

                               5412


reached, with which I agree, involves a routine application of
our asylum law. Judge Aldisert, however, has chosen to write
an opinion that applies our law while casting doubt on its
legitimacy. The opinion suggests that our court's established
law of "hazardous neutrality" conflicts with the Supreme
Court's decision in Elias-Zacarias. See Majority Opinion at
5405-06 ("We adhere to this precept notwithstanding the
statement of the Supreme Court in [Elias-Zacarias]."). How-
ever, we have already noted that our neutrality doctrine,
though questioned in Elias-Zacarias, was not overruled. See
Sangha v. INS, 103 F.3d 1482, 1488 (9th Cir. 1997).

The Supreme Court said in Elias-Zacarias that the failure
to take sides in a dispute is not "ordinarily " the expression of
a political opinion. See INS v. Elias-Zacarias, 502 U.S. 478,
483 (1992). But it did not state that an affirmative expression
of neutrality could not amount to a political opinion especially
"in an environment in which political neutrality is fraught
with hazard." Sangha, 103 F.3d at 1488. This latter circum-
stance is the basis for our "hazardous neutrality " doctrine, and
it is inaccurate to suggest that the doctrine conflicts with
Supreme Court precedent.

The law of our circuit, therefore, remains firmly in place.
Our duty while writing the opinions of this circuit is to apply
that law, not to cast doubt on its viability. If an individual
judge dislikes our precedent, he or she may so state in a sepa-
rate opinion; it is inappropriate to express such individual
concerns, however subtly, in an opinion that purports to speak
for our court.

On the merits of the case, the majority opinion implies that
Rivera-Moreno's nine-day forced recruitment immediately
following her expression of neutrality did not constitute perse-
cution. See Majority Opinion at 5412 ("Although she was
forced to contribute her nursing skills to them for nine days
until she escaped, the Perquin guerrillas did not pursue her
and they did not punish her."). We have held, however, that

                               5413


forced recruitment by a revolutionary army is "a deprivation
of liberty" that "would amount to persecution. " Arteaga v.
INS, 836 F.2d 1227, 1231-32 (9th Cir. 1988). I thus would
hold that the forced recruitment, as well as the attempted
recruitment by bombing and threat eight years later, qualified
as persecution.

I nevertheless concur in the result because Rivera-Moreno
has failed to establish a causal connection between her
expression of neutrality and her forced or attempted recruit-
ment. In Sangha, 103 F.3d at 1487, we held that an applicant
for asylum cannot establish that her "persecution was `on
account of' political opinion by inference, unless the infer-
ence is one that is clearly to be drawn from the facts in evi-
dence." Rivera-Moreno has presented no evidence, direct or
circumstantial, that would compel an inference that the guer-
rillas recruited or attempted to recruit her because of her neu-
trality; it is equally or more likely that they recruited her to
serve their own independent purposes. I accordingly concur in
the judgment.

							  


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