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Case Name:AGBUYA V INS
Case Number:	Date Filed:
98-70965	07/18/00
 

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ESTHER JOSEPHINE BUNUAN AGBUYA,
Petitioner,                                           No. 98-70965

v.                                                    I&NS No.
                                                     A-70-541-362
IMMIGRATION AND NATURALIZATION
SERVICE,                                              OPINION
Respondent.

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

Argued and Submitted
June 16, 1999--San Francisco, California

Memorandum Disposition and Dissent
Filed September 2, 1999
Withdrawn: July 12, 2000

Opinion Filed: July 18, 2000

Before: Mary M. Schroeder, Betty B. Fletcher, and
Cynthia Holcomb Hall, Circuit Judges.

Opinion by Judge B. Fletcher;
Dissenting Opinion by Judge Hall

_________________________________________________________________


COUNSEL

Raquel M. Perez, Encino, California, for the petitioner.

Donald E. Keener, Washington, D.C., Office of Immigration
Litigation, United States Department of Justice, Washington,
D.C., for the respondent.

_________________________________________________________________

OPINION

B. FLETCHER, Circuit Judge:

Esther Josephine Bunuan Agbuya, a citizen of the Philip-
pines, petitions for review of the Board of Immigration
Appeals' (BIA) dismissal of her appeal from an Immigration
Judge's (IJ) denial of her application for asylum and with-
holding of deportation pursuant to 8 U.S.C. SS 1158(a) and
1253(h). Agbuya argues that she has a well-founded fear that
the New People's Army (NPA) will persecute her if she

                               8388


returns to the Philippines, and that such persecution will be
"on account of" her political opposition to the NPA's commu-
nist cause. We have jurisdiction to entertain a petition for
review of the BIA's decision pursuant to section 106(a) of the
Immigration and Nationality Act (INA), 8 U.S.C.S 1105a(a).1
We grant the petition for review, find petitioner eligible for
asylum and grant her application for withholding of deporta-
tion.

I.

Esther Agbuya lived in northern Luzon, the Philippines,
and had worked since 1980 for the Benguet Mining Company
in the personnel department. She was responsible for termi-
nating employees or notifying individuals that they were
being disciplined for various infractions and employment-
related difficulties. From 1985-1991, the company imple-
mented a series of retrenchments. During this period, Agbuya
had serious problems with the union of miners, who disagreed
with the retrenchment policy and the order in which workers
were being dismissed. On one occasion, the miners rallied
against her, displaying signs that called for her firing. Agbuya
learned that the union had been infiltrated by members of the
New People's Army ("NPA"), an armed communist guerilla
group responsible for numerous deaths and kidnappings. She
began to receive telephone calls demanding her resignation
and threatening her family if she failed to comply. Afraid of
retaliation by the NPA, she resigned on July 12, 1991.
_________________________________________________________________
1 The Illegal Immigration Reform and Immigrant Responsibility Act of
1996 (IIRIRA) was enacted on September 30, 1996. See Pub. L. No. 104-
208 (Division C), 110 Stat. 3009-546. IIRIRA repealed section 106(a) of
the INA, and replaced it with a new judicial review provision at section
242 of the INA. This repeal became effective on April 1, 1997. See
IIRIRA S 309(a). However, for cases where, as here, deportation proceed-
ings began before April 1, 1997, and where the final order of deportation
was issued after October 30, 1996, IIRIRA's "transitional rules" provide
that, with certain exceptions not relevant to this case, the court of appeals
has jurisdiction under old section 106(a) of the INA. See IIRIRA
SS 309(c)(1) and (4), 110 Stat. 3009-625-26.

                               8389


On September 1, 1991, almost two months after her resig-
nation, Agbuya was waiting for her husband to pick her up in
Baguio City, fourteen kilometers from the mine, when she
was abducted by three heavy-set men whom she did not
know. They forced her into a car and drove her to a house
over an hour away. They held her captive for one week, keep-
ing her blindfolded the entire time and subjecting her to phys-
ical abuse. On one occasion, they placed a gun in her mouth.
During the course of her captivity, Agbuya's kidnappers iden-
tified themselves as NPA members sympathetic to the plight
of the Benguet miners. The NPA kidnappers told her they
would try her in a kangaroo court for her abuse and mistreat-
ment of the workers. Agbuya was extremely frightened to say
anything about her view of the labor situation, so she simply
told the men that they should sit down and present their ideas
to the government. Agbuya was afraid for her own life, and
for the welfare of her youngest child who was still nursing at
the time.

The guerillas demanded a ransom of 150,000 pesos from
her family. She was released on September 8 after her family
paid the full ransom. But the guerillas warned Agbuya that
wherever she worked, they would keep her under surveil-
lance. Following the abductors' instructions and afraid of fur-
ther reprisal, Agbuya and her family never reported the
kidnapping to the police or to the mining company. Agbuya
was too frightened to return home for several months. On
April 25, 1992, she came to the United States and later
applied for asylum. During her absence, her family has
received several phone calls checking on her whereabouts.

II.

On October 17, 1995, an Immigration Judge denied
Agbuya's application for asylum and withholding of deporta-
tion, but granted voluntary departure. Although the IJ had "no
difficulty with her credibility," she concluded that Agbuya
had not established a well-founded fear of persecution. The

                               8390


BIA affirmed, concluding that any persecution Agbuya had
previously suffered was not on account of her political opin-
ion. The BIA found that "[t]he direct and circumstantial evi-
dence does not support an inference that the miners' threats
and actions against her were motivated by anything other than
their anger at adverse personnel actions . . . which they con-
sidered to be unfair or in violation of their contract." Agbuya
timely petitioned this court for review of the BIA's decision.

A. General Standards for Asylum Eligibility 

[1] To be eligible for asylum, Agbuya must show that she
is "unwilling or unable" to return to her home country "be-
cause of persecution 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) (defining "refugee"). To establish a well-founded fear
of persecution, Agbuya must show her fear to be both objec-
tively reasonable and subjectively genuine. See Fisher, 79
F.3d at 960. The objective component of this test requires
showing "by credible, direct, and specific evidence in the
record, that persecution is a reasonable possibility." Meza-
Manay v. INS, 139 F.3d 759, 763 (9th Cir. 1998) (quoting
Singh v. Ilchert, 63 F.3d 1501, 1506 (9th Cir. 1995)). This
showing may be made "by the production of specific docu-
mentary evidence or by the credible and persuasive testimony
of the applicant." Id. "[P]ersecutory conduct may have more
than one motive, and so long as one motive is one of the statu-
tory grounds, the requirements have been satisfied. " Singh v.
Ilchert, 63 F.3d at 1509; see Briones v. INS, 175 F.3d 727,
729 (9th Cir. 1999); Borja v. INS, 175 F.3d 732, 735 (9th Cir.
1999); Ratnam, 154 F.3d at 994; Rodriguez-Roman v. INS, 98
F.3d 416, 430 n.23 (9th Cir. 1996).

[2] Evidence of past persecution alone can establish a well-
founded fear. See id. Establishing past persecution triggers a
rebuttable presumption of a well-founded fear of future perse-
cution. See 8 C.F.R. S 208.13(b)(1)(i). The INS can rebut this

                               8391


presumption by showing by a preponderance of the evidence
that conditions "have changed to such an extent that the appli-
cant no longer has a well-founded fear of being persecuted if
he or she were to return." Id.

[3] Where an asylum applicant relies on past persecution on
account of political opinion to establish a rebuttable presump-
tion of a well-founded fear of future persecution, she must
show that (1) she was a victim of persecution, (2) she holds
a political opinion or has had one imputed to her, (3) her
political opinion was known to or imputed by her persecutors,
and (4) the persecution was on account of her actual or
imputed political opinion. Sangha v. INS, 103 F.3d 1482,
1487 (9th Cir. 1997). When an applicant has been persecuted
because of an opinion imputed to her, our analysis focuses on
how the persecutor perceived the applicant's actions and alle-
giances, and what motivated their abuse. In Sangha, we held
that:

      In establishing an imputed political opinion, the
      focus of inquiry turns away from the views of the
      victim to the views of the persecutor. We consider,
      however, not the persecutor's own political opinions,
      but rather the political views the persecutor rightly or
      in error attributes to his victims. If the persecutor
      attributed a political opinion to the victim, and acted
      upon the attribution, this imputed view becomes the
      applicant's political opinion as required under the
      Act.

Id. at 1489 (internal citation omitted). In Desir v. Ilchert, 840
F.2d 723 (9th Cir. 1988), we examined the case of a Haitian
man who was arrested, threatened, and assaulted by the Ton
Ton Macoutes because he refused to pay bribes. We examined
Desir's refusal in the context of the Haitian political system
as a whole and concluded that "Desir's refusal to accede to
extortion in a political system founded on extortion resulted
in his classification and treatment as a subversive. " Id. at 727.

                               8392


B. Analysis

In this case, the IJ found Agbuya's testimony to be credible
and worthy of full weight as evidence, and the BIA did not
find otherwise. Accordingly, we accept Agbuya's testimony
as true. See Singh v. INS, 94 F.3d 1353, 1356 (9th Cir. 1996).
The point of contention is over the reason for the NPA's per-
secution of Agbuya. In the BIA's view, Agbuya failed to
show that the kidnapping was motivated by any political
opinion--imputed or actual--or by "any position of political
neutrality which she may have had."

[4] We disagree. There is little doubt that Agbuya was sin-
gled out by the guerillas for persecution because of the unpop-
ular actions she took while an employee of Benguet. In the
context of the communist guerilla insurgency in the Philip-
pines, however, Agbuya's personnel actions took on an
importance beyond their impact on the miners. The evidence
shows that the communist NPA interpreted Agbuya's actions
as an affront to their cause: Agbuya was viewed as politically
aligned with the mining company and the government, and
against the NPA. Indeed, the fact that Agbuya was kidnapped
and threatened only after she had resigned her position and
that the NPA threatened to monitor her activities in the future
indicates that she was identified by the NPA as an enemy for
more than simply the job she held. Further, Agbuya's NPA
captors explained that they objected not only to the specific
employment-related actions she took at the mine, but also to
her "wrongdoings to the laborers of the Philippines," a state-
ment demonstrating the content of the opinion imputed to
Agbuya. Once she was perceived as an enemy of a particular
group of workers -- those at the Benguet Corporation -- the
NPA targeted her as an enemy of the "laborers " of the whole
country and thus as an opponent of the guerilla group. This
link was made explicitly by Agbuya's NPA persecutors, who
berated her for opposing their egalitarian ideology by acting
unfairly toward the miners, with whom they sympathized.

                               8393


We have found an imputed political opinion in situations
where it is "likely that the persecutors will attribute the politi-
cal views of others to the applicants." Sangha, 103 F.3d at
1489; see also Briones, 175 F.3d at 729 (finding petitioner
had a hostile political opinion imputed to him by his NPA
persecutors). The NPA kidnapped and threatened Agbuya
because she was perceived to be pro-government and there-
fore an enemy of the miners and the NPA. Just as the refusal
to pay the Ton Ton Macoutes gave rise to an imputed political
opinion in Desir, here Agbuya's identification with Benguet
management as a result of her job led to her classification and
treatment as an opponent of the communist NPA. See Desir
v. Ilchert, 840 F.2d 723 (9th Cir. 1988).

The dissent argues that Agbuya's persecution amounted to
"economically-motivated persecution." Dissent at 8396. The
dissent stresses that Agbuya did not make any political state-
ments or consciously side with anyone in the struggle. As dis-
cussed above, such purported silence and neutrality does not
decide the matter. Instead, we must look at how she was
viewed in the eyes of the persecutors. Here, the guerilla NPA
viewed Agbuya as an enemy of the miners, the NPA, and the
communist cause. Agbuya need not identify herself in this
way to qualify for political asylum.2 She was abducted, falsely
_________________________________________________________________
2 The dissent finds Desir inapposite, stating that "it is utterly implausible
that labor-management relations is as central to the underpinnings of the
Philippines' political system as extortion was to the Haitian political sys-
tem under Duvalier." Dissent at 8404. However, the State Department
Report on Human Rights Practices for 1994 makes clear that the govern-
ment of the Philippines is engaged in an ongoing violent struggle with the
communist NPA, and the record demonstrates that central to the guerillas'
advocacy of communism is the belief in more egalitarian labor-
management relations. In fact, in 1990 the NPA raided Benguet Mining
Corp., stealing millions in cash and gold and silver bars, and taking two
of the company's executives hostage. A newspaper article on the incident
suggested that the NPA was using the hostages and valuables to negotiate
the settlement of a long-standing labor dispute. The NPA's active involve-
ment in the labor dispute illustrates that it regarded the miners' plight as
one of its causes. It follows that Agbuya's perceived opposition to this
cause was regarded as opposition to the NPA itself.

                               8394


imprisoned for a week, hit, threatened with a gun, and told she
would be tried in a kangaroo court because of a political opin-
ion imputed to her by her persecutors. All of this happened
after she left her job, indicating that the NPA was after
Agbuya for what they perceived to be her political views. She
was not, as the dissent indicates, persecuted because she was
rich or middle class. Instead, she was persecuted, like so
many refugees who seek safe haven in the United States,
because she was identified as an opponent of communism. As
such, she is entitled to political refugee status. 3

[5] Our finding that Agbuya has established past persecu-
tion entitles her to a rebuttable presumption of a well-founded
fear of future persecution. 8 C.F.R. S 208.13(b)(1)(i). This
presumption may be overcome by evidence "that since the
time the persecution occurred conditions in [the Philippines]
have changed to such an extent that [Agbuya] no longer has
a well-founded fear of being persecuted if she were to return."
Id.; see also Matter of Chen, 20 I. & N. Dec. 16 (BIA 1989).

[6] The INS in this case failed to rebut the presumption by
showing the effect of changed country conditions. The BIA
_________________________________________________________________
3 The dissent's reading of our decision as "essentially conflat[ing] an
economic motivation with a political one," dissent at 8405, misapprehends
our opinion. We believe that the record clearly establishes that while
Agbuya's initial threats by Benguet miners were economically motivated,
the NPA's later involvement on behalf of its laborers and in furtherance
of its own egalitarian labor-management relations agenda establishes the
political nature of her later persecution.

We also disagree with the dissent's claim that our finding of past perse-
cution conflicts with the Seventh Circuit's decision in Cuevas v. INS, 43
F.3d 1167 (7th Cir. 1995). In Cuevas, the asylum applicants testified that
land squatters associated with the NPA persecuted them because they
refused to sell them land so that they could grow rice. See id. at 1171.
There was no indication that the feud between the NPA squatters and the
applicants was based on anything other than both parties' desire to take
advantage of the land's economic value. See id.  Here, in contrast, Agbuya
was persecuted because she was viewed as an enemy of laborers and the
communist cause.

                               8395


itself noted that according to the State Department's report on
country conditions in the Philippines in 1994, kidnappings by
the NPA continue to be a problem in the Philippines. The
report also states that the government has not been successful
at curbing continued human rights abuses committed by the
NPA. The INS presented no evidence to overcome the pre-
sumption that Agbuya has a well-founded fear of persecution
if she were to return to the Philippines.

Because the INS did not rebut the presumption that Agbuya
had a well-founded fear of persecution on account of political
opinion, the BIA erred by denying that Agbuya was eligible
for asylum. See 8 C.F.R. S 208.13(b); Singh v. Ilchert, 63 F.3d
1501, 1510 (9th Cir. 1995). In addition, because the INS did
not rebut the presumption that it is more likely than not that
Agbuya's life or freedom would be threatened upon returning
to the Philippines, the BIA erred by denying her application
for withholding of deportation. See 8 C.F.R.S 208.16(b)(2);
Singh, 63 F.3d at 1510.

We remand this case to the BIA with instructions to grant
petitioner's application for withholding of deportation and to
present this matter to the Attorney General as eligible for the
exercise of her discretion as to asylum under 8 U.S.C.
S 1158(b).

PETITION GRANTED.

_________________________________________________________________

HALL, Circuit Judge, dissenting:

The majority opinion in this case stretches the meaning of
political persecution to cover those aliens who are persecuted
on purely economic grounds. Because I believe that only Con-
gress has the authority to re-write our immigration laws in this
manner, I dissent.

                               8396


I.

The majority opinion's recitation of the facts glosses over
in a few sentences a sequence of events that the BIA thought
pivotal in explaining why Petitioner was abducted. Petitioner
began working for the Benguet Mining Company as a person-
nel clerk in 1980. Petitioner was rapidly promoted within the
Company's personnel department. Petitioner was responsible
for the unenviable tasks of terminating workers and notifying
workers when they were being disciplined for habitual
absences, theft of company property, or inefficient work prac-
tices.

In 1985, when the Company began a series of downsizing
programs that sparked much hostility among the Company's
unionized miners, Petitioner became a lightning rod for union
members' fierce criticism of company policies. At one heated
meeting, Petitioner was assaulted by the local union president.
After a second round of downsizing in 1989, the union mem-
bers petitioned management, seeking Petitioner's discharge.
The union also staged a rally at the company's main gate
demanding that she be removed from office. The Company
again downsized its workforce in 1990 and 1991, making
Petitioner the target of even more scorn from angry laborers.
At work, Petitioner received telephone calls threatening her
and her family if she did not resign. Petitioner was also sub-
jected to other harassment from workers: At one point a dis-
gruntled worker swung a chair at her, and union members
even called her a terrorist. In addition, her children had to be
escorted to their school buses because of concerns about their
safety. Fed up with this union harassment, and also harboring
concerns about the propriety of some of her supervisor's
actions, Petitioner resigned in July of 1991. Approximately
two months after her resignation, three individuals identifying
themselves as NPA members abducted Petitioner.

The important question in this case is not whether what
happened to Petitioner was persecution. Rather, the panel here

                               8397


must focus on why Petitioner was abducted and abused. Peti-
tioner described her captors' motivations at great length in her
hearing before the Immigration Judge:

      They wanted me to accept the faults that I'd been
      doing during my work or during my tenure in that
      Benguet gold operation to accept that I'd been doing,
      that I have had wrongdoings to the laborers of the
      Philippines . . . . Yeah, they told me that they
      belonged to the NPA group and they sympathized
      with the workers of Benguet Corporation because
      they claimed that we had been so abusive and we'd
      been threatening them to be discharged.

Administrative Record at 57. On cross-examination, INS
Counsel asked further questions to probe Petitioner's views
regarding why she was abducted:

      Q. During the time that you were being held by
      these individuals, what did they tell you? Did
      they say anything to you or ask you any ques-
      tions?

        . . .

      A. They told me that I had been abusive, that I had
      been coercing the employees of Benguet Corpo-
      ration and I'd been doing unlawful termination
      to the employees.

      Q. So, they were primarily interested in your
      alleged injustices that you committed to the
      workers while you were employed?

      A. Uh-huh.

      Q. Is that yes?

                               8398


      A. Yes sir.

      Q. So, their main problem with you was the fact
      that they didn't think that you were being fair
      when you were employed with Benguet Corpo-
      ration?

      A. Yes sir.

        . . .

      Q. [D]id the rebels express any other problems
      with you other than those that stemmed from
      your employment?

      A. Yeah, they told me that it's my personality in
      dealing with the workers.

      Q. You were too harsh on them.

      A. They think I was too strict on them.

      Q. Was anything else discussed?

      A. Nothing more, sir.

Administrative Record 67-69. This was followed by further
questioning on re-direct. Trying to elicit testimony to estab-
lish political persecution, Petitioner's counsel initiated the fol-
lowing exchange about her captors:

      Q. Did you ever state your position as to the NPA
      or to the Philippine government?

      A. What position are you referring to as, sir?

      Q. Your political opinion. In other words, did you
      ever discuss what side you were on?

                               8399


      A. No, I didn't side anybody.

Administrative Record at 71. Petitioner then stated that she
was afraid to make any political statements because she
believed that doing so would antagonize her captors.

In short, this record clearly establishes that Petitioner was
singled out by the NPA because of her unpopular actions in
a bitter conflict between Company management and labor.
Petitioner's abduction was the culmination of a lengthy cam-
paign by union members to harass and intimidate Petitioner
and to force her discharge. Petitioner was plainly identified as
the human face of a mining company's downsizing program,
and was subjected to inhumane harassment as a result. Like
the majority, I find the harassment Petitioner had to endure
quite disturbing. But my personal feelings aside, I can find
nothing in this record that comes close to indicating that Peti-
tioner was ever persecuted on account of imputed political
opinion.

II.

After an unusually thorough review of the evidence that
prompted the Immigration Judge to deny Petitioner's asylum
application, the Board of Immigration Appeals dismissed her
appeal on the grounds that she had failed to prove that she had
been persecuted on account of her political opinion. In
reviewing that finding, we must defer to the BIA's expertise.
"To reverse the BIA finding we must find that the evidence
not only supports [a contrary] conclusion, but compels it."
INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). More-
over, the applicant has the burden of establishing a "causal
connection" between the persecution and the political opinion.
Sangha v. INS, 103 F.3d 1482, 1486-87 (9th Cir. 1997).

In Petitioner's case, there is simply no evidence that poli-
tics ever entered into the NPA's persecution calculus. This is
a straightforward case of persecution on exclusively economic

                               8400


grounds. As her own testimony reveals, when NPA guerrillas
asked Petitioner whose side she was on in the political dis-
putes gripping the Philippines, Petitioner responded "I didn't
side [with] anybody." Petitioner unambiguously and repeat-
edly testified that she was abducted and abused because her
captors viewed her actions, all of which were made within the
scope of her employment with the Company, as unduly harsh.

In viewing Petitioner's persecution as political in nature,
the majority places great emphasis on the facts that Petitioner
"was kidnapped and threatened only after she had resigned
her position and that the NPA threatened to monitor her activ-
ities in the future." From this fact the majority concludes that
"she was identified by the NPA as an enemy for more than
simply the job she held." This conclusion simply does not fol-
low. The NPA may have continued to persecute Petitioner
even after her resignation for any number of reasons stem-
ming from sheer vindictiveness to a desire to make an exam-
ple of her in order to deter other company employees from
disciplining union members in the future. Or they may have
felt that by kidnapping her after her resignation, they would
encounter less "heat" from the Company and the authorities.
Perhaps the NPA found itself in desperate need of cash on the
day of the abduction, and targeted Petitioner as someone
whose relatives were likely to come up with 150,000 pesos in
ransom. For all we know, her captors may have mistakenly
believed that Petitioner was still working for the Company on
the day they abducted her -- she had resigned less than two
months previously. Unlike the majority, I'd prefer not to
decide this case on the basis of speculation not articulated in
the record. The BIA examined the record and drew a reason-
able conclusion:

      [H]er disputes with the miners stemmed from the
      respondent's performance of her job duties by imple-
      menting company personnel policies in a way which
      the union, rightly or wrongly, perceived as unjust.
      The direct and circumstantial evidence does not sup-

                               8401


      port an inference that the miners' threats and actions
      against her were motivated by anything other than
      their anger at adverse personnel actions, including
      disciplinary actions and layoffs which they consid-
      ered to be unfair or in violation of their contract.

I am profoundly troubled that the majority effectively ignores
the substantial evidence standard by disregarding this BIA
conclusion on the basis of far-fetched speculation about the
chronology of events.

The majority's second justification for reversing the BIA's
determination stems from a single out-of-context quote about
Petitioner's "wrongdoings to the laborers of the Phillippines."
The majority concludes that this quote demonstrates that the
kidnappers imputed to Petitioner some vague ideological
opposition to the rights of workers everywhere in the country.
The majority then leaps to the conclusion that this opposition
obviously rendered Petitioner "an opponent of the guerilla
group" in the minds of her captors. The extensive transcript
quotations I reproduce above demonstrate that such a reading
of Petitioner's testimony is implausible. Her captors quite
obviously objected to the employment actions Petitioner had
taken at a single mine. When her captors asked Petitioner
about her views toward the NPA, she told them that she did
not side with anybody. There is no evidence in the record that
the NPA kidnappers viewed Petitioner as an ideological per-
son. The majority's conclusion that the BIA lacked substantial
evidence to support its conclusion is puzzling, given the pages
of Petitioner's testimony where she unambiguously stated that
she was singled out because of unpopular employment actions
and perceived harshness in dealing with union members.

Even under this court's most expansive interpretations of
the "on account of political opinion" language, Petitioner can-
not prevail. Briones v. INS, 175 F.3d 727, 728 (9th Cir. 1999)
(en banc), involved an alien who had worked as a confidential
informer for the government of the Philippines, supplying it

                               8402


with information that the government used to apprehend and
eliminate NPA operatives and defeat NPA guerrillas in com-
bat. This court held that Briones's "active involvement in a
fiercely ideological dispute between the government of the
Philippines and the Communist NPA" raised a likelihood that
the NPA imputed certain political views to Briones. Briones
was employed by the government in a civil war against the
NPA. By contrast, Petitioner was employed by a private firm
involved in a labor dispute with its employees. It is therefore
not difficult to characterize Briones's activity as political and
Petitioner's as nonpolitical.

Similarly, in Vera-Valera v. INS, 147 F.3d 1036 (9th Cir.
1998), this court held that Vera-Valera's prominent, publicly-
articulated support for a Peruvian government project
designed to weaken the Sendero Luminoso, and his subse-
quent persecution at the hands of Sendero Luminoso members
who "accused him of being a spy for the government,"
amounted to persecution on account of his political opinions.
Id. at 1038-39. Petitioner never mentioned supporting the
government of the Philippines, nor did the NPA ever accuse
her of being a government supporter.

In Borja v. INS, 175 F.3d 732, 734 (9th Cir. 1999) (en
banc), this court determined that an alien who was persecuted
after she told armed NPA operatives that she would not join
their organization because she was "pro-government," had
indeed been persecuted "on account of her political opinions."
The court went to great lengths to note Borja's "outspoken
political opinion," and her drawing of "a political line in the
sand." Id. at 736. This outspokenness is in sharp contrast to
Petitioner's silence.

Finally, the majority cites Desir v. Ilchert, 840 F.2d 723
(9th Cir. 1988). In Desir, this court held that the petitioner's
refusal to pay extortion money to the Haitian Ton Ton Mac-
outes was an expression of political opposition only because
the Haitian political system was founded on extortion. See id.

                               8403


at 727 ("To challenge the extortion is to challenge the under-
pinnings of the political system."). Outside of a political envi-
ronment as unique as the Haitian "kleptocracy " that prevailed
under Duvalier, refusing to pay extortion money is not an
expression of political opposition. Cf. Elias-Zacarias, 502
U.S. at 481 (holding that refusing to join a guerilla group is
not political expression). Moreover, it is utterly implausible
that labor-management relations is as central to the underpin-
nings of the Philippines' political system as extortion was to
the Haitian political system under Duvalier. Certainly nothing
in the record suggests as much.1 In any event, even if Desir
is read most expansively, it does not support the proposition
that Petitioner's employment actions resulted in an imputation
of anti-NPA political opinions to her: That question is factual,
not legal; and the analogy between refusing to pay a bribe and
holding down a job is something of a stretch.

In holding that an alien who is persecuted based purely on
economic actions taken in the private sector is eligible for
asylum, the majority creates a split among the circuits. The
majority's holding is inconsistent with the Seventh Circuit's
opinion in Cuevas v. INS, 43 F.3d 1167 (7th Cir. 1995). In
Cuevas, the petitioners were absentee landlords who were
harassed and threatened after they refused to sell their agricul-
tural land to squatters who were acting on behalf of the NPA.
The Court noted that regardless of the squatters' political ori-
entation, the fact remained that they were interested in pur-
_________________________________________________________________
1 Footnote 2 of the majority opinion states that "the record demonstrates
that central to the guerillas' advocacy of communism is the belief in more
egalitarian labor-management relations." I remain unsure what, precisely,
in the record demonstrates that trend. To the contrary, my reading of the
record suggests that the NPA seeks only power itself. For example, page
99 of the Administrative Record, which is a copy of a 1991 Amnesty
International Report, documents numerous instances in which the NPA
has assassinated mainstream labor union activists because of their refusal
to acquiesce in the NPA's violent, revolutionary tactics. When it comes to
labor-management disputes, the NPA's egalitarianism appears limited to
ensuring that both workers and managers live in a state of fear.

                               8404


chasing the land simply "in order to grow rice. " Id. at 1171.
The Seventh Circuit wisely determined that whatever harass-
ment petitioners endured as a result of their failure to sell the
land was economic intimidation, and not political persecution.
The court therefore held that the petitioners had failed to dem-
onstrate persecution on the basis of a protected ground. I
would follow Cuevas and deny the petition in the case at bar.

By holding that Petitioner was persecuted on the basis of
her political beliefs, the majority essentially conflates an eco-
nomic motivation with a political one. But in writing the
Immigration and Nationality Act, Congress did not intend to
provide those persecuted on economic grounds with refugee
status. Given that decision by Congress, the courts must not
do what the majority has done here: collapse economic and
political persecution into the same category. All over the
world, individuals are persecuted because they are rich or
poor. Workers are oppressed by management in nations
across the globe and, as we see in this case, workers some-
times persecute managers as well. Congress might one day
decide to protect all these victims of economic persecution
with refugee status. But that is a decision for Congress to
make; and the courts must not usurp that congressional pre-
rogative. I respectfully dissent.

                               8405


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