ILW.COM - the immigration portal Immigration Daily

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers

Home Page

Advanced search


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

Chinese Immig. Daily

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE

Immigration Daily

 

Chinese Immig. Daily



The leading
immigration law
publisher - over
50000 pages of free
information!

Copyright
©1995-
ILW.COM,
American
Immigration LLC.

Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here:



< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly


Case Name:
NAVAS V INS

Case Number:

Date Filed:

98-70363

06/20/00



FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARIO ERNESTO NAVAS,
Petitioner,                                           No. 98-70363


v.                                                    INS No.
                                                     A70 189 355
IMMIGRATION AND NATURALIZATION
SERVICE,                                              OPINION
Respondent.


Petition for Review from the
Board of Immigration Appeals


Argued and Submitted
November 1, 1999--Pasadena, California


Filed June 20, 2000

Before: Myron S. Bright,1 Stephen Reinhardt, and
Stephen S. Trott, Circuit Judges.


Opinion by Judge Reinhardt

_________________________________________________________________

1 The Honorable Myron S. Bright, Senior Circuit Judge of the United
States Court of Appeals for the Eighth Circuit, sitting by designation.



COUNSEL

L. Walker Van Antwerp, III, Los Angeles, California, for the
petitioner.


Heather Phillips, United States Department of Justice, Office
of Immigration Litigation, Washington, D.C., for the respon-
dent.


_________________________________________________________________

OPINION

REINHARDT, Circuit Judge:

Mario Ernesto Navas seeks review of the BIA's decision
denying both asylum and withholding of deportation. Navas
fled El Salvador at age 17 after members of the Salvadoran


                               6596


military murdered his aunt, shot at him, threatened him with
death, and assaulted his mother. Previously, in 1988, Navas's
uncle, a member of the Frente Farabundo Marti para la Lib-
eracion Nacional (FMLN), a guerilla group opposed to the
government, was murdered because of his membership in that
group. The IJ and, in turn, the BIA denied Navas's application
for asylum and withholding of deportation. The BIA based its
decision upon two grounds: first, that Navas had not demon-
strated persecution; and second, that, even if the incidents in
question rose to the level of persecution, they were not com-
mitted on account of Navas's political opinion. Because the
evidence would compel any reasonable fact-finder to reach a
contrary conclusion with respect to both points, we reverse.


FACTUAL BACKGROUND

Mario Ernesto Navas is a 26 year old native and citizen of
El Salvador. He arrived in this country on September 8, 1992,
and applied for asylum and withholding of deportation pursu-
ant to Section 208 and 243(h) of the Immigration and Nation-
ality Act ("INA") two months later. See 8 U.S.C. SS 1158 and
1253(h).


The facts upon which Navas's claim is based are simple.
Navas left El Salvador as a seventeen-year old because he
feared that the same members of the Salvadoran military who
had murdered his aunt and attacked him would in turn murder
him. On June 9, 1992, Navas was walking towards his aunt's
house when he saw three men leaving her home. He recog-
nized the three men as members of the military forces that
were stationed in his home town. When Navas saw the three
men, they also spotted him. They chased him and shot at him.
However, Navas was able to escape and hide out until the
next day, when his mother went to his aunt's home and found
that his aunt had been murdered.2 On the same day that his
_________________________________________________________________
2 The record contains a death certificate for Navas's aunt, Victoria Man-
uela Navas Guerra.


                               6597


mother found his aunt's body, the three soldiers who Navas
had seen leaving his aunt's house went to his mother's home
in search of him. When they discovered that he was not there,
they beat his mother and threatened to kill both mother and
son unless Navas left the country. Navas left El Salvador that
same night--one day after the murder of his aunt.


At the asylum hearing held in early January 1997, Navas
testified that his family had been politically active prior to his
aunt's murder. His aunt's husband, Navas's uncle, had been
a member of the Frente Farabundo Marti para la Liberacion
Nacional ("FMLN"), a guerilla group opposed to the Salvado-
ran government and had been murdered because of his mem-
bership in that group. Navas himself had been politically
active while in El Salvador, although he was only seventeen
when he left the country. According to Navas, he helped dis-
tribute political propaganda in his home town. He also testi-
fied that the three soldiers who threatened him knew that he
had distributed political materials.3


Since Navas's flight to the United States, the surviving
_________________________________________________________________
3 In his written asylum application, Navas indicated that neither he, nor
any member of his family, belonged to, or was associated with, any group
or organization in El Salvador. He also responded that neither he nor any
family member had ever been threatened, mistreated, arrested, detained, or
interrogated by the authorities in El Salvador. However, Navas testified
during his deportation proceeding that he did not reveal any political affili-
ations or abuse by authorities because he feared such information would
affect his application adversely. As for the comments that no one in his
family had been abused or persecuted by the government, Navas's own
answers to other questions in which he mentioned the murder of his aunt
by the military make it clear that Navas simply misunderstood the ques-
tion or erred in filling out of the form. Most important for our purposes,
neither the IJ nor the BIA made any adverse credibility finding. To the

contrary, the IJ found that the petitioner was "severely traumatized" by the
events that precipitated his flight. See infra  at following paragraph of text.
Where the BIA does not make an explicit adverse credibility finding, we
must assume that the applicant's factual contentions are true. Gaya Prasad
v. INS, 101 F.3d 614, 616 (9th Cir. 1996).


                               6598


members of his family have left his home town in El Salvador
and are now here.4 In El Salvador, however, the soldiers who
murdered his aunt, beat his mother and threatened his life
have been incorporated into the national civil police. As a
result, Navas fears the consequences of returning to El Salva-
dor. In fact, the IJ noted Navas's emotional state at the time
of testimony: "For the record, the respondent has shown that
this is an emotional experience for him. He is crying . . . and
I think the record should reflect that the respondent does show
that he is severely traumatized by the event that occurred
. . . ."


As part of the administrative record, Navas submitted
extensive materials documenting the prevalence of human
rights violations in El Salvador by both the government and
its opponents. These documents substantially corroborate
Navas's account. For example, the 1992 report, The Work of
Americas Watch, notes with respect to El Salvador the
"steady diet of assassinations, abductions and violations of the
laws of war . . . . [T]he army and security forces remained
responsible for numerous cases of torture, illegal detention,
and indiscriminate attacks on the civilian population." The
Work of Americas Watch, 213 (1992). According to the
report, "available evidence demonstrates that some military
actions have been aimed directly at civilians living in conflict
zones, apparently to punish them for presumed guerilla sym-
pathies." Id. at 217. The report also notes the complete immu-
nity with which the military typically acted.


On January 16, 1992, the government of El Salvador and
the FMLN signed a peace accord ending 12 years of civil con-
flict. By the end of 1992, however, the implementation of the
accord was in serious jeopardy. Although the reports in the
_________________________________________________________________
4 Navas testified that his brother is a United States citizen, his mother is
a permanent resident, and his father is in the process of becoming a perma-
nent resident. At the time of the hearing, there was a petition pending for
Navas.


                               6599


record acknowledge that human rights abuses diminished,
politically motivated killings and death threats continued to be
commonplace. In fact, the pattern of attacks against those
engaged in opposition political activity increased.5 Attacks on
FMLN leaders raised suspicions of political motivation, par-
ticularly in light of the fact that the attacks went largely
unpunished. As the 1993 Americas Watch report puts it,
"[t]he near-complete and on-going paralysis of the judicial
system continued to ensure that the Salvadoran state, if not
guilty of direct involvement in abuses, was complicit by fail-
ing to investigate or to take preventive action."6 The report's
conclusion is supported by the fact that members in training
of the new National Civil Police included former members of
the National Guard and Treasury Police, who were unlikely
to police either themselves or their former colleagues rigor-
ously.


Even in 1995, when the FMLN participated in elections as
a legal political party, the National Civil Police (PNC) contin-
ued to be implicated in killings, torture, and arbitrary deten-
tion. Arbitrary executions and death threats still went
unpunished. In its 1996 report, Americas Watch notes that,
although human rights abuses diminished somewhat, vigilante
killings and police abuse continued. Moreover, municipal
police forces continued to be associated with serious human
rights abuses.
_________________________________________________________________
5 The record includes exhaustive yearly reports by Americas Watch pub-
lished in 1992, 1993, 1995, and 1996. The 1993 report cites the observa-
tions of the United Nations Observer Mission in El Salvador (ONUSAL)
regarding the large number of death threats and murders carried out by the
army and security forces.
6 As the report states, "the judicial system . . . seems most efficient when
it is protecting members of the military from the consequences of their
own crimes." Another report cites ONUSAL's observation that 75 of the

most prominent cases involving arbitrary executions, attempted execu-
tions, and death threats between 1992 and 1994 resulted in neither trial nor
punishment for the culprits.


                               6600


Despite all of the uncontested evidence, both testimonial
and documentary, the Immigration Judge ("IJ") denied
Navas's application for asylum and withholding of deporta-
tion pursuant to Section 241(a)(1)(B) of the INA, 8 U.S.C.
S 1251(a)(1)(B). In an oral decision, the IJ concluded that
"what the respondent testified to probably happened," and
that the issue was whether a claim for asylum could be predi-
cated upon those events.7 The IJ concluded that it could not,
finding that "[t]he respondent fears returning because three
men believed he witnessed a murder, a criminal act, and that
is not a basis to be granted asylum in the United States." The
IJ did, however, grant Navas voluntary departure.


Navas appealed the IJ's decision to the Board of Immigra-
tion Appeals ("BIA"), which affirmed the IJ's decision on
March 4, 1998. The BIA held first that "the respondent failed
to demonstrate that a reasonable person in his circumstances
would fear persecution on account of one of the five enumer-
ated grounds for asylum," and second that, as a necessary
result, Navas "failed to satisfy the higher standard of proof for
eligibility for withholding of exclusion and deportation."
More specifically, the BIA concluded that Navas had failed to
demonstrate that he was the victim of acts that constituted
persecution, and that no evidence in the record suggested that
the reason behind the soldiers' actions with respect to Navas
was that they imputed a political opinion to him. Rather, the
BIA agreed with the IJ's conclusion that the murder of
_________________________________________________________________
7 In reaching his decision, the IJ incorrectly stated that no death certifi-
cate or other evidence was admitted to support Navas's testimony. In fact,

Navas submitted a death certificate for his aunt, as well as a series of
human rights reports from reputable human rights organizations.


In addition, the IJ rejected Navas's claim of possible membership in a
political group or participation in political activities, and held that the fact
that his uncle had been a member of the FMLN was irrelevant, since the
FMLN was now part of the Salvadoran government. He reached this con-
clusion despite the fact that the uncontested human rights reports in the
administrative record documented continuing attacks on FMLN members
after the peace accords.


                               6601


Navas's aunt by three military personnel was not politically
motivated, and that the murderers' interest in finding Navas
"relate[d] to his ability to identify them, not to a desire to
harm him on account of one of the enumerated grounds of
persecution."


Navas then petitioned this court for review on March 30,
1998, pursuant to 8 U.S.C. S 1105(a). In this case, we review
the BIA opinion, rather than the Immigration Judge's, because
the BIA conducted an independent review of the record and
provided its own grounds for affirming the IJ's decision.
Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir. 1995).


LEGAL BACKGROUND

A. General Framework

[1] The Attorney General may, in her discretion, grant asy-
lum to an applicant determined to be a refugee, within the
meaning of section 101(a)(42)(A) of the Immigration and
Nationality Act, 8 U.S.C. S 1101(a)(42)(A). Refugee status is
established by evidence that an applicant is unable or unwill-
ing to return to his home country because of a well-founded
fear of future persecution on account of race, religion, nation-
ality, membership in a particular social group, or political
opinion. See INS v. Cardoza-Fonseca, 480 U.S. 421, 428
(1987); Singh v. Ilchert, 63 F.3d 1501, 1505 (9th Cir. 1995).
A well-founded fear of future persecution may be established
by proving either past persecution or "good reason" to fear
future persecution."8 Vilorio-Lopez v. INS, 852 F.2d 1137,
_________________________________________________________________
8 Ordinarily, a showing of past persecution simply establishes a pre-
sumption of a well-founded fear of future persecution, which may be
rebutted by a showing that country conditions have so changed as to ren-

der the applicant's fear no longer reasonable. See text accompanying notes
23-24. In certain circumstances, however, eligibility for asylum may be
based on past persecution alone, even if there is little or no likelihood of
future persecution, "where an applicant or his family has suffered under
atrocious forms of persecution . . . ." Acewicz v. INS, 984 F.2d 1056, 1062
(9th Cir. 1993).


                               6602


1140 (9th Cir. 1988). If the applicant establishes statutory eli-
gibility for asylum, the Attorney General must, by a proper
exercise of her discretion, determine whether to grant that
relief.


[2] To be eligible for a grant of asylum, the applicant must
simply demonstrate a well-founded fear of persecution. He
need not prove, however, that it is more likely than not that
his fear will be realized. As the Supreme Court put it, "[o]ne
can certainly have a well-founded fear of an event happening
when there is less than a 50% chance of the occurrence taking
place. As one leading authority has pointed out:`Let us . . .
presume that it is known that in the applicant's country of ori-
gin every tenth adult male person is either put to death or sent
to some remote labor camp. . . . In such a case it would be
only too apparent that anyone who has managed to escape
from the country in question will have `well-founded fear of
being persecuted' upon his eventual return.'  " INS v.
Cardoza-Fonseca, 480 U.S. 421, 431 (1987) (quoting 1 A.
Grahl-Madsen, The Status of Refugees in International Law
180 (1966)). In contrast, a more stringent standard applies to
requests for withholding of deportation, in part because an

applicant who meets that standard is not only eligible for, but
entitled to, such relief. The Attorney General is required to
withhold deportation of an applicant who can establish a
"clear probability" that he would be persecuted were he to be
deported to his home country. See Korablina v. INS, 158 F.3d
1038, 1045-46 (9th Cir. 1998). In order to demonstrate a clear
probability of persecution, a petitioner must prove that "it is
`more likely than not' " that he will be persecuted on account
of a statutorily-protected ground. Id. at 1046.


[3] The applicant bears the burden of proof with respect to
eligibility for asylum and withholding of deportation. 8
C.F.R. SS 208.13 (8), 208.16(b). Specific corroborating docu-
mentation is not required, however, for an applicant to meet
his burden. See Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir.
1997). Rather, because refugee status is inherently difficult to


                               6603


prove and documentation hard to obtain, an applicant may
establish his case through testimony alone. See Sangha, 103
F.3d at 1487; Garrovillas v. INS, 156 F.3d 1010, 1016 (9th
Cir. 1998).


B. The Requirements for Asylum Eligibility

[4] In order to establish eligibility for asylum on the basis
of past persecution, an applicant must show: (1) an incident,
or incidents, that rise to the level of persecution; 9 (2) that is
"on account of" one of the statutorily-protected grounds; and
(3) is committed by the government or forces the government
is either "unable or unwilling" to control. 10 Only the first and
_________________________________________________________________
9 Persecution is "the infliction of suffering or harm upon those who dif-
fer (in race, religion, or political opinion) in a way regarded as offensive."
Kovac v. INS, 407 F.2d 102, 107 (9th Cir. 1969); Sangha, 103 F.3d at
1487. While we have not attempted to furnish a list of all actions that con-
stitute persecution, we have held that actions such as mob stonings, Lopez
Galarza v. INS, 99 F.3d at 957, repeated vandalism, Surita, 95 F.3d 814,
817, threatening notes and calls, Korablina, 158 F.3d 1038, 1042, and
harm arising out of employment and education, id. at 1045, may constitute

persecution, as defined by the statute. Physical harm has been consistently
treated as persecution. See de Guinac v. INS, 179 F.3d 1156, 1161 (9th
Cir. 1999). Moreover, an applicant may suffer persecution because of the
cumulative effect of several incidents, which considered individually
would not rise to the level of persecution. See  Shirazi-Parsa v. INS, 14
F. 3d 1424, 1428 (9th Cir. 1994).
10 The statute defines a refugee as any person outside of their country of
nationality who is "unable or unwilling to avail himself or herself of the
protection [their country]." 8 U.S.C. S1101 (a)(42)(A). As such, our cases
have held that the statute protects people from persecution by nongovern-
mental groups in cases in which the government is unable or unwilling to
control the persecuting agent. Sangha, 103 F.3d at 1487; Arteaga v. INS,
836 F.2d 1227 (9th Cir. 1988); McMullen v. INS , 658 F.2d 1312, 1315
(9th Cir. 1981) superseded on other grounds by  8 U.S.C. S 1253(h). Gov-
ernment action is not necessarily required; instead, police inaction in the

face of such persecution can suffice to make out a claim. R. J. Singh, 94
F.3d at 1357; Surita v. INS, 95 F.3d 814, 817; Andriasian v. INS, 180 F.3d
1033, 1042-43 (9th Cir. 1999). In particular, arrests by police, without
more, may not be sufficient to rebut claims that the government is unable
or unwilling to stop persecutors, Chitay-Pirir v. INS, 169 F.3d 1079, 1081
(7th Cir. 1999), especially where the punishment may amount to no more
than a "slap on the wrist." R. J. Singh , 94 F.3d at 1357.


                               6604


second factors -- namely, whether the incidents that occurred
constitute persecution and whether the persecution was "on
account of" a protected ground -- are at issue in this petition
for review. In other words, to be eligible for relief, Navas
must show not only that he was persecuted, but also that the
persecution he suffered was on account of a protected cate-
gory --namely, race, religion, nationality, membership in a
social group, or political opinion.11


[5] The Supreme Court held in Elias-Zacarias that an asy-
lum applicant must satisfy two requirements in order to show
that he was persecuted "on account of" a political opinion.
First, the applicant must show that he held (or that his perse-
cutors believed that he held) a political opinion. See Elias-
Zacarias, 502 U.S. at 482-83.12 Second, the applicant must
_________________________________________________________________
11 In order to succeed in proving eligibility for asylum, an applicant's
well-founded fear of persecution must be both subjectively genuine and
objectively reasonable. See Korablina, 158 F.3d at 1044. An applicant sat-
isfies the subjective component by credibly testifying that he genuinely
fears persecution. Id. He satisfies the objective component in one of two
ways: by establishing either past persecution or good reason to fear future
persecution. In this case, the BIA's decision was predicated on what it per-
ceived as a failure to meet the objective component of that test by estab-
lishing past persecution.

12 The Court in Elias-Zacarias and this court have elaborated on this
requirement in two ways. First, the Supreme Court left open the possibility
that it would suffice for an applicant to show that his persecutors imputed
a political opinion to him, even if he did not in fact hold any political opin-
ion. See Elias-Zacarias, 502 U.S. at 482. Since Elias-Zacarias was
decided, this court has held on several occasions that imputed political
opinion is a basis for asylum. See, e.g., Vera-Valera v. INS, 147 F.3d
1035, 1038 (9th Cir. 1998); Sangha v. INS, 103 F.3d 1482, 1489 (9th Cir.
1997). Second, the Court did not preclude the possibility that political neu-
trality might constitute a political opinion. See Elias-Zacarias, 502 U.S.
at 483. Since then, this court has stated unequivocally that its pre-Elias-
Zacarias decisions holding that persecution on account of political neu-
trality in an environment in which political neutrality "is fraught with haz-
ard," is a basis for asylum. See Sangha, 103 F.3d at 1488-89. That is the

law of this circuit. Cf. Rivera-Moreno v. INS , _______ F.3d _______ (9th Cir. 2000)
(acknowledging and applying the doctrine of "hazardous neutrality" as the
law of this circuit although questioning in dictum its validity) (per Aldi-
sert, J., sitting by designation).


                               6605


show that his persecutors persecuted him (or that he faces the
prospect of such persecution) because of his political opinion.
See id. at 483-84. As this court has made clear, the statute
covers persecution on account of political opinion even where
the persecutor acts out of mixed motives. Put another way, the
protected ground need only constitute a motive for the perse-
cution in question; it need not be the sole motive. Borja v.
INS, 175 F.3d 732, 735 (9th Cir. 1999) (en banc); Singh, 63
F.3d at 1509.


[6] A finding that persecution was on account of a pro-
tected category must be based on facts in evidence. See Elias-
Zacarias, 502 U.S. at 483; Sangha, 103 F.3d at 1486. The
applicant need not provide direct evidence that his or her per-
secutors were motivated by political opinion, Elias-Zacarias,
502 U.S. at 483, but need only introduce "some evidence of
[the persecutors' motive], direct or circumstantial." Id.
(Emphasis added). In some cases, the factual circumstances
alone may provide sufficient reason to conclude that acts of
persecution were committed on account of political opinion,
or one of the other protected grounds. See Sangha, 103 F.3d
at 1490. Indeed, this court has held persecution to be on
account of political opinion where there appears to be no
other logical reason for the persecution at issue. See Sangha,
103 F.3d at 1490; Nasseri v. Moschorak, 34 F.3d 723, 730
(9th Cir. 1994), overruled on other grounds by Fisher v. INS,
79 F.3d 955 (9th Cir. 1996) (en banc).


[7] If an asylum applicant establishes that he has been sub-
jected to persecution in the past, a presumption arises that a
well-founded fear of future persecution exists. 8 C.F.R.
S 208.13(b)(1)(i). The burden then shifts to the INS to show
by a preponderance of the evidence that country conditions
have changed to such an extent (as applied to the individual's
case) that the applicant no longer has a well-founded fear that
he would be persecuted if he were to return.13 Id. If the INS
_________________________________________________________________
13 In order to conclude, on the basis of changed country conditions, that
an applicant's fear of persecution is no longer reasonable, the BIA must


                               6606


fails to make this showing, the applicant is statutorily eligible
for asylum. Maini v. INS, _______ F.3d _______ (9th Cir. 2000).


[8] A similar approach applies with respect to withholding
of deportation. A showing of past persecution gives rise to a
presumption that the applicant has shown a clear probability
of future persecution so as to entitle him to withholding of
deportation. See 8 C.F.R. S 208.16(b)(2); Vallecillo-Castillo
v. INS, 121 F.3d 1237, 1240 (9th Cir. 1996). In order to rebut
the presumption, the INS must show that country conditions
have so changed that it is no longer more likely than not that
the applicant would be persecuted should he be forced to
return.


C. Standard of Review

The BIA's factual determinations are reviewed for substan-
tial evidence, INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992), while its legal determinations are reviewed in accor-
dance with the principles of deference outlined in Chevron v.
N.R.D.C., 467 U.S. 837 (1984). See INS v. Aguirre-Aguirre,
119 S.Ct. 1439, 1445 (1999). Reversal is warranted if the evi-
dence would compel any reasonable factfinder to conclude
that the requisite fear of persecution has been shown. See
Elias-Zacarias, 502 U.S. at 481, 484; Singh v. INS, 134 F.3d
962, 966 (9th Cir. 1998); Sangha, 103 F.3d 1482, 1487 (9th
Cir. 1997).
_________________________________________________________________
engage in an "individualized analysis" that demonstrates that "changed
conditions . . . have eliminated the basis for [the applicant's] individual
fear of future persecution." Osorio v. INS , 99 F.3d 928, 932-33 (9th Cir.
1996); see also Berroteran-Melendez v. INS, 955 F.2d 1251, 1257 (9th
Cir. 1991) (cautioning against "blind" application of country conditions

information to individual cases). General information about improving
conditions may not be enough to rebut an applicant's specific basis for a
well founded fear of persecution. De Guinac, 179 F.3d at 1163.


                               6607


ANALYSIS

1. Persecution

[9] There are two issues in this case: first, whether the inci-
dents in question constitute persecution; and second, if so,
whether that persecution was on account of (imputed) politi-
cal opinion. In resolving these questions, given the absence of
an adverse credibility finding by the BIA we must assume that
Navas's factual contentions are true. See Gaya Prasad v. INS,
101 F.3d 614, 616 (9th Cir. 1996). As a result, the issue is not
whether the events in question took place, but rather whether
they establish persecution on account of political opinion. We
hold that the evidence would compel any reasonable fact-
finder to conclude that they do.


[10] With respect to the first issue, the conclusion that
Navas has demonstrated persecution is dictated by this court's
earlier cases. In asylum and withholding of deportation cases,
we have consistently held that death threats alone can consti-
tute persecution. See Del Carmen Molina v. INS , 170 F.3d
1247 (9th Cir. 1999);14 Garrovillas v. INS, 156 F.3d 1010,
1016 (9th Cir. 1997); Gonzalez-Neyra v. INS, 122 F.3d 1293,
1296 (9th Cir. 1997); Sangha v. INS, 82 F.2d 903 (9th Cir.
1996); Gomez-Saballos v. INS, 79 F.3d 912 (9th Cir. 1996);
Aguilera-Cota v. INS, 914 F.2d 1375 (9th Cir. 1989). This
case involves considerably more; here, Navas was not only
threatened with death, but two members of his family were
murdered, he was shot at, and his mother beaten. 15 Under our
precedent, Navas has unquestionably demonstrated persecu-
tion.
_________________________________________________________________
14 In Del Carmen Molina, we held that where the petitioner's uncontra-
dicted testimony stated that some of her cousins had been killed because

they served in the military and that she had received two threatening notes,
she had proved past persecution.
15 In addition, the record includes reports that describe a widespread pat-
tern of killings, assaults and threats by government forces directed against
those who either do or are presumed to oppose it.


                               6608


2. "On Account of" Imputed Political Opinion

Therefore, as both sides acknowledge, the second issue--
whether the persecution was on account of Navas's (imputed)
political opinion, is the key to this proceeding. 16 The govern-
ment argues that the threats to Navas occurred because he wit-
nessed a criminal act, not because of his--or any other family
member's--political opinion. The government further con-
tends that, in the absence of evidence connecting the 1992
murder of Navas's aunt to the 1988 murder of her husband,
or of additional incidents occurring before the murder, Navas
cannot be said to have sustained the burden of demonstrating
a causal connection between the harm suffered and a political
opinion on his part. We reject these arguments.


[11] While we have held that an applicant proves persecu-
tion on account of political opinion where he demonstrates
that he had such an opinion and that his persecutors threat-
ened him because of it, see Gonzales-Neyra, 122 F.3d at
1296; see also Borja, 175 F.3d at 736, we have also held that
this is not the only way to establish the requisite link between
_________________________________________________________________
16 The government also asserts that the evidence in the record does not
suffice to show an objective basis for Navas's fear of persecution because
his testimony was brief and lacking in detail. However, this court cannot
affirm the BIA on a ground upon which it did not rely. See, e.g., Securities
and Exchange Commission v. Chenery Corp., 332 U.S. 194, 196 (1947)
("[A] reviewing court, in dealing with a determination or judgment which
an administrative agency alone is authorized to make, must judge the pro-
priety of such action solely by the grounds invoked by the agency. If those
grounds are inadequate or improper, the court is powerless to affirm the

administrative decision by substituting what it considers to be a more ade-
quate or proper basis."). Because "[this court's] review is confined to the
BIA's decision and the bases upon which the BIA relied," Martinez-
Zelaya v. INS, 841 F.2d 294, 296 (9th Cir. 1988), we cannot affirm the
BIA's decision by concluding that Navas's testimony is too sparse when
there is no suggestion of any such finding in the agency's decision. More-
over, the government's new and belated argument appears to be make-
weight at best. The evidence is more than sufficient to carry Navas's
burden.


                               6609


persecution and political opinion. An applicant can also estab-
lish persecution on account of imputed political opinion--that
is, on account of a political opinion attributed to him by his
persecutors. See Cordon Garcia v. INS, 204 F.3d 985, 991
(9th Cir. 2000); Sangha v. INS, 103 F.3d 1482, 1489 (9th Cir.
1997).17 To establish imputed political opinion, "an applicant
must show that his persecutors actually imputed a political
opinion to him." Sangha, 103 F.3d at 1489. This can be done,
as we noted earlier, by a showing of the relevant circum-
stances; accordingly, we have found persecution to be on
account of imputed political opinion where the applicant is a
member of a politically active family, other members of
which have been persecuted in the past for their political
beliefs,18 or where the persecutors' conduct or statements
_________________________________________________________________
17 In Sangha, we held that where members of the Bhindrawala Tiger
Force, a terrorist group, came to the petitioner's house, but sought (and

assaulted) only the petitioner's father, the fact that they ignored Sangha
"suggests that [they] did not believe that Sangha held his father's views."
Sangha, 103 F.3d. at 1490.
18 Although the persecution of family members is highly probative,
" `the death of one family member does not[automatically] trigger a
sweeping entitlement to asylum eligibility for all members of her extended
family.' " Mgoian v. INS, 184 F.3d 1029, 1036 (9th Cir. 1999) (quoting
Echeverria-Hernandez v. INS, 923 F.2d 688, 691 (9th Cir. 1991), vacated
on other grounds by Echeverria-Hernandez v. INS , 946 F.2d 1481 (9th
Cir. 1991)). Rather, when evidence regarding a family history of persecu-
tion is considered, the relationship that exists between the persecution of
family members and the circumstances of the applicant must be examined.
Id.; see also Rodriguez v. INS, 841 F.2d 865, 871 (9th Cir. 1998) (a num-
ber of threats or acts of violence against members of an alien's family may
be enough to support the conclusion that the alien's life or freedom is also

endangered).

Where police beat and threaten the spouse of a known dissident, it is
logical, in the absence of evidence pointing to another motive, to conclude
that they did so because of the spouse's presumed guilt by association.
See, e.g., Sangha, 103 F.3d 1490-91; Nasseri, 34 F.3d at 729; Rodriguez-
Roman, 98 F.3d at 429-30; see also Ramirez Rivas, 899 F.2d at 865-66
(rejecting the INS's argument that a petitioner must be "similarly situated"
in terms of political activity in order to show that her family's beliefs will


                               6610


show that they are imputing a particular opinion to their vic-
tim. Id. at 1489.


In determining whether or not an applicant has established
persecution on account of imputed political opinion, this court
has considered the applicant's association with, or relation-
ship to, people who are known to hold a particular political opin-
ion.19 For example, in Ramirez Rivas v. INS, 899 F.2d 864
_________________________________________________________________
be imputed to her.) In the eyes of those who persecute the spouse of a
political activist, the activist's political sins are, by derivation, the
spouse's. See Meza-Manay v. INS, 139 F.3d 759, 764-65 (9th Cir. 1997);
Lazo-Majano, 813 F.2d at 1435. Cf. Belayneh v. INS, _______ F.3d _______ (9th
Cir. 2000) (rejecting claim of persecution on account of imputed political
opinion where the couple had been divorced for over fifteen years, the
record was "devoid of any suggestion" that her former husband's views
had been imputed to her, the government had changed twice in the interim,
and the only direct persecution suffered by the petitioner herself occurred

over a quarter-century earlier).
19 Alternatively, imputed political opinion may also be established
where, as a result of an individual's non-political actions, the persecutor
attributes certain political beliefs or opinions to him. For example, we
have found persecution to be on account of imputed political opinion
where, regardless of the petitioner's motives, he expressly refused to affili-
ate himself with a particular political faction or to accede to its extortion-
ate demands, and was then perceived by the group as opposing it because
of that refusal. Desir v. Ilchert, 840 F.2d 723, 728 (9th Cir. 1988); Alonzo
v. INS, 915 F.2d 546, 549 (9th Cir. 1990). Similarly, we have found perse-
cution of those who work for or with political figures to be on account of
the political opinion of their employer even if the nature of their work for
or with that person is not in itself political. See Cordon-Garcia, 204 F.3d
at 991--992 (holding that, where Cordon-Garcia taught literacy classes for
the government, her " `presumed affiliation' with the Guatemalan

government--an entity the guerillas oppose--is the functional equivalent
of a conclusion that she holds a political opinion opposite to that of the
guerillas, whether or not she actually holds such an opinion"); Velarde v.
INS, 140 F.3d 1305, 1312 (9th Cir. 1998) (petitioner's position as body-
guard to President's family meant that guerillas were "likely to consider
[her] a political opponent"); Vera-Valera, 147 F.3d at 1039 (petitioner's
position as president of street vendor's cooperative, although not political
in nature, gave rise to perception on the part of his persecutors that his


                               6611


(9th Cir. 1990), we concluded that where the petitioner in
question and her parents were politically neutral, but other
members of the family participated in anti-government activi-
ties, Ramirez had proven her entitlement to withholding of
deportation, as well as statutory eligibility for asylum, by pre-
senting three kinds of evidence: her own testimony regarding
the persecution of politically active members of her family;
her testimony regarding the mistreatment of even politically
neutral members of her family; and information regarding the
Salvadoran government's treatment of persons associated
with guerillas--in particular, the targeting of relatives and
close associates of members of guerilla associations by death
squads.20 See Ramirez Rivas , 899 F.2d at 867--869.


Similarly, in Gomez-Saballos v. INS, 79 F.3d 912, 917 (9th
Cir. 1996), we held that the fact that the petitioner and the
person who threatened to kill him were on opposite sides of
a civil war, and that the person who threatened to kill him was
responsible for the execution of his brother as a revolutionary,
was sufficient to demonstrate persecution on account of politi-
cal opinion. In that case also, we found that the petitioner had
not just shown statutory eligibility for asylum, but in fact had
established a clear probability of persecution on account of
_________________________________________________________________
work represented political advocacy, and thus established eligibility based
upon imputed political opinion); Aguilera-Cota v. INS, 914 F.2d 1375,
1379 (9th Cir. 1990) (finding imputed political opinion based upon gov-
ernment employment). Cf. Arriega-Barrientos v. INS, 937 F.2d 411, 414
(9th Cir. 1991) (as amended on denial of rehearing) (holding that in a
country with mandatory conscription, "mere accedance to military service

is not a political statement").
20 In that case, we also rejected the BIA's argument that Ramirez could
not reasonably fear persecution because the authorities had an opportunity
to persecute her from the time of the death of her cousin in 1980 until her
departure in 1983, but did not. Id. at 970. We held that with the occurrence
of each additional incident of persecution, the probability that Ramirez
herself would be assumed to be a sympathizer rose. Id.


                               6612


his political opinion, and therefore reversed the BIA's deci-
sion with respect to both forms of relief.21 Id. at 918.


[12] In this case, the question whether Navas's persecution
was on account of imputed political opinion turns in part on
whether the persecution of other family members was politi-
cally motivated. The government concedes that the murder of
Navas's uncle was political, but disputes the fact that his
aunt's murder was. The circumstances of the latter murder
make it clear, however, that the killing of Navas's aunt, like
the killing of her husband, must be deemed political. Navas's
aunt had been married to a member of the FMLN who had
been murdered because of his opposition to the government.
She in turn was murdered by members of the government's
military forces--an action consistent with the country-wide
pattern of the Salvadoran military acting to punish civilians
for presumed guerilla sympathies. We have held that"[i]f
`there is no evidence of a legitimate prosecutorial purpose for
a government's harassment of a person . . . there arises a pre-
sumption that the motive for harassment is political.' " Singh
v. Ilchert, 63 F.3d 1501, 1509 (9th Cir. 1995). Here, there is

no suggestion in the record that there was any cause for the
murder of Navas's aunt by members of the military other than
her murdered husband's political activities and her relation-
ship to him. As a result, the logical inference to be drawn
from the circumstances is that the murder of Navas's aunt was
_________________________________________________________________
21 We have also found persecution to be on account of imputed political
opinion in three recent cases. See Yazitchian v. INS, 207 F.3d 1164 (9th
Cir. 2000) (finding persecution on account of imputed political opinion
where the Yazitchians' persecutors accused them of being Dashnak sup-
porters and Yazitchian's father and father-in-law had fought for the Dash-
nak party); Chanchavac v. INS, 207 F.3d 584 (9th Cir. 2000) (finding
persecution on account of imputed political opinion where the Guatemalan
military accused Chanchavac of being a guerilla when beating him);
Cordon-Garcia v. INS, 204 F.3d 985, 991 (9th Cir. 2000) (finding perse-
cution on account of imputed political opinion where exclusive reason

why guerillas pursued Cordon-Garcia was that she taught literacy for the
government).


                               6613


also politically motivated--that the soldiers presumed sympa-
thy for the FMLN's position on her part and that they killed
her for that reason. See Sangha, 103 F.3d at 1487.


[13] Navas himself had distributed political materials, and
the soldiers who murdered his aunt knew of his political activ-
ity. Those soldiers went to his house on the day after the mur-
der and when he could not be found, they attacked his mother.
Typically, where killings and other acts of violence are
inflicted on members of the same family by government
forces, "the inference that they are connected and politically
motivated is an appropriate one." Hernandez-Ortiz v. INS,
777 F.2d 509, 517 (9th Cir. 1985). Thus, where two members
of Navas's family were the victims of politically-motivated
murders, and where Navas's political activities were known to
his persecutors, the inference must be that Navas's persecu-
tion was, at least in part, on account of political opinion.


[14] We have held that " `[t]he 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.' " Borja, 175 F.3d at 734 (quoting Osorio v.
INS, 18 F.3d 1017, 1028 (2d Cir. 1994)) (emphasis added).
Rather, "[p]ersecutory conduct may have more than one
motive, and so long as one motive is one of the statutorily
enumerated grounds, the requirements have been satisfied."
Singh v. Ilchert, 63 F.3d 1501, 1509--10 (9th Cir. 1995).
Accordingly, because the persecution of Navas was motivated
at least in part by his (imputed) political opinions, he has
established persecution on account of those opinions.


[15] In its decision, however, the BIA found that the sol-
diers' actions were motivated solely by the desire to avoid
prosecution. That conclusion is patently erroneous, as any rea-
sonable factfinder would be compelled to conclude. The BIA
portrayed the soldiers' actions in attacking Navas's mother
and threatening Navas with death as simply attempts to elimi-


                               6614


nate a witness to the murder.22 The BIA erred in four respects
in reaching this conclusion: first, by attacking the mother and
threatening the son, the murderers did not eliminate a witness
to their earlier crime. Instead, they committed another crime
and created another witness in the process. Second, the mur-
derers did not threaten retaliation if Navas went to the police,
nor did they demonstrate any concern that he might do so.
Rather, they made their ultimatum quite clear--leave the
country or die. Third, Navas introduced substantial evidence
into the administrative record that showed that well after the
peace accord was reached in 1992 (the same year as his
departure from El Salvador), the police and soldiers continued
to violate human rights with impunity. Prosecution of the sol-
diers for their actions was, therefore, highly unlikely in any
event. Finally, as we have stated earlier, Navas's evidence
regarding the historical background to the threats against his
life establishes that at least one of the reasons for the soldiers'

actions was his family's political associations, as well as his
own, and the soldiers' imputation of a political opinion to
him. Accordingly, any reasonable factfinder would be com-
pelled to conclude that Navas's persecution was, at least in
part, on account of imputed political opinion. See, e.g., Rat-
nam v. INS, 154 F.3d 990, 995-96 (9th Cir. 1998) (finding that
torture was conducted at least in part on account of imputed
political opinion, even though it also served intelligence gath-
ering purposes).
_________________________________________________________________
22 Similarly, in Chanchavac , the INS argued that the military's motive
for persecuting Chanchavac was to punish his failure to join the military's
ranks, not to punish him for an imputed political opinion, even though the
Guatemalan military accused Chanchavac of being a guerilla when beating
him. 207 F.3d at 592. However, as the majority put it, "[t]here [was] abso-
lutely no evidence that the military's motive for beating him was to punish

him for not joining their ranks and it would be improper for us to speculate
about this possibility. Even if this theory had support in the evidence, it
would only prove that the Guatemalan military had two motives when it
persecuted Chanchavac." Chanchavac, 207 F.3d at 592.


                               6615


3. Country Conditions

Because Navas has established past persecution on account
of political opinion, the INS bears the burden of demonstrat-
ing by a preponderance of the evidence that changed country
conditions rebut the presumption of a well-founded fear of
future persecution. 8 C.F.R. S 208.13(b)(1)(i). In order to
rebut that fear, the INS must introduce evidence that, on an
individualized basis, rebuts a particular applicant's specific
grounds for his well-founded fear of future persecution.
Osorio, 99 F.3d at 932-33. Here, however, the BIA did not
consider the country conditions issue. Accordingly, the ques-
tion with respect to the asylum claim is whether to remand to
allow the BIA to consider country conditions or simply to
reverse on the question of eligibility and remand so that the
Attorney General may exercise her discretion.23


In general, we do not remand a matter to the BIA if, on the
record before us, it is clear that we would be compelled to
reverse its decision if it had decided the matter against the
applicant. See Aguilera-Cota v. INS; 914 F.2d 1375, 1384 (9th
Cir. 1990) (citing Blanco-Comarribas v. INS, 830 F.2d 1039,
1043 (9th Cir. 1987)); Kotasz v. INS, 31 F.3d 847, 851 (9th
Cir. 1994); Fergiste v. INS, 138 F.3d 14 (1st Cir. 1998); see
also Akinmade v. INS, 196 F.3d 951, 958 (9th Cir. 1999);
Chanchavac, 207 F.3d at 591.24 Nor is it consistent with
sound principles of administrative law for an agency to
resolve a case on one ground and subsequently, if that ground
is held erroneous, assert that it could have reached the same
_________________________________________________________________
23 In three recent cases, we have determined the issue of eligibility and
remanded solely for the Attorney General's exercise of her discretionary
authority, even though the BIA had not considered the question of
changed country conditions. Maini v. INS, _______ F.3d _______ (9th Cir. 2000);

Prasad v. INS, 101 F.3d 614, 617 (9th Cir. 1996); Vallecillo-Castillo v.
INS, 121 F.3d 1237, 1240 (9th Cir. 1996).
24 As we noted above, we cannot affirm the BIA's decision on a basis
on which it did not rely. Martinez-Zelaya, 841 F.2d at 296; Menezes v.
INS, 601 F.2d 1028, 1033n.7 (9th Cir. 1979).


                               6616


result on the basis of one or more alternative grounds. Such
a practice would lead to incremental decision-making and
result, in some cases, in a series of unnecessary and inefficient
remands, to the detriment of the party seeking relief.


With respect to country conditions, however, it is reason-
able for the IJ and the BIA not to reach that issue, if they con-
clude that the applicant has not shown past persecution. In
such case, no presumption of a well-founded fear arises and
there is thus no reason for the IJ or BIA to consider whether
the presumption has been rebutted. Nevertheless, because the
INS is required to make a complete record during the admin-
istrative proceedings, we review that record to determine
whether there is room for doubt as to the proper result with
respect to the country conditions issue.


[16] Where, as here, we conclude that past persecution has
been established, but the INS has failed to introduce the requi-
site country conditions information and thus has failed to
meet its evidentiary burden on that issue, we do not remand,
because the ultimate outcome is clear. See Aguilera-Cota, 914
F.2d at 1384. In this case, the reports in the record all note the
continuing immunity enjoyed by the police and military, as
well as the persistence of politically-motivated violence, not-
withstanding the peace accords. We emphasize, however, that
the presence of evidence favorable to the petitioner is not
what is determinative here; rather, the basis for our decision
is the absence of evidence refuting the regulatory presump-
tion. In view of the above, we hold that Navas is statutorily
eligible for asylum. Maini, _______ F.3d at _______; Valecillo-Castillo
v. INS, 121 F.3d 1237, 1240 (9th Cir. 1996).


4. Withholding of Deportation

[17] While the standard for withholding of deportation is
more stringent than for eligibility for asylum, the finding of
past persecution in this case also triggers a presumption that
Navas has shown a clear probability of future persecution


                               6617


with respect to his withholding claim--a presumption that the
INS may also rebut by an individualized showing of changed
country conditions. See 8 C.F.R. S 208.16(b)(2); Vallecillo-
Castillo v. INS, 121 F.3d 1237, 1240 (9th Cir. 1996). Again,
there is nothing in the record that would serve to rebut that
presumption. Accordingly, we find that Navas is entitled to
withholding of deportation.


Petition for review GRANTED; REMANDED for the exer-
cise of the Attorney General's discretion with respect to the
asylum claim, and for the grant of withholding of deportation.


                               6618


Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here: