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Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit  
Case Name:
Case Number: Date Filed: 
99-70150 11/15/00 



EGOAVIL-VALENZUELA, and SERGIO                        No. 99-70150
                                                     INS Nos.
v.                                                    A29-277-726
SERVICE,                                              OPINION

Petition for Review of a Decision of the Immigration and Naturalization Service

Argued and Submitted
October 12, 2000--Pasadena, California

Filed November 15, 2000

Before: Robert Boochever, A. Wallace Tashima, and
Richard Tallman, Circuit Judges.

Opinion by Judge Tashima

Karla L. Kraus, San Diego, California, for the petitioners.

William J. Howard, U.S. Department of Justice, Washington,
D.C., for the respondent.

TASHIMA, Circuit Judge:

Miguel Cruz-Navarro ("Cruz"), a native and citizen of
Peru, with his family,1 petitions for review of an order of the
Board of Immigration Appeals ("BIA"). The BIA affirmed
the decision of the Immigration Judge ("IJ"), denying Cruz
both asylum and withholding of deportation underSS 208(a)
and 243(h) of the Immigration and Nationality Act ("INA").
1 Cruz's wife, Graciela Egoavil-Valenzuela, and their son, Sergio Brian
Cruz-Egoavil, are dependent asylum applicants; thus, disposition of Cruz's
asylum claim is dispositive as to his family as well.


The BIA found that Cruz had not established that he was per-
secuted "on account of" a category protected under the INA
when members of a guerilla group attempted to kill him.

We have jurisdiction under S 106(a)(1) of the INA, 8
U.S.C. S 1105a(a)(1), as amended by the transitional rules for
judicial review under the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L.
104-208, 110 Stat. 3009 (Sept. 30, 1996).2  We deny the peti-


Petitioners are citizens and natives of Peru.3 Cruz was a
member of the Peruvian Marines from 1976 to 1977. After his
service with the Marines, Cruz joined the Peruvian Civil
Guard, which later became the National Police, serving from
1980 to 1989. While a member of the National Police, Cruz
served in Iquitos, Ayucucho, and Lima.

Throughout his tenure with the National Police, Cruz often
arrested and searched the homes of members of terrorist
groups, such as the Sendero Luminoso ("Shining Path"), an
anti-government guerilla organization.4  The Sendero
2 Because the BIA issued its decision in this case on January 14, 1999,
and Cruz's deportation proceedings began on November 1, 1991, S 106 of
the INA, as amended by IIRIRA's transitional rules, applies. See IIRIRA
S 309(c)(4); Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir. 1997) (applying
transitional rules to all final orders of deportation issued by the BIA on or
after October 31, 1996, in cases where the applicant was placed in pro-
ceedings before April 1, 1997). Under the transitional rules, IIRIRA
S 309(c)(4)(C) provides that "the petition for judicial review must be filed
not later than 30 days after the date of the final order of exclusion or
deportation." The BIA entered its final order on January 14, 1999. Cruz's
petition for review was timely filed on February 12, 1999, within the 30-
day period.
3 Cruz also has an eight-year-old son, who was born two years after the
family entered the United States, and who is a United States citizen.
4 Sendero Luminoso is a Maoist guerilla organization, founded around
1980, that opposes the current Peruvian government. Sendero Luminoso


Luminoso was especially active in Ayucucho, the town where
Cruz was stationed from 1986 to 1987. Because police offi-
cers serving in Ayucucho were specifically targeted by the
Sendero Luminoso, and a large proportion of them died or
disappeared at the hands of the group,5  such officers were
popularly referred to as "dead men."

In April 1989, while stationed in Lima, Cruz encountered
three men outside a telephone booth. Cruz knew one of the
men and suspected that the three were Sendero Luminoso
guerillas. His suspicions were further piqued when he
observed that one man held two or three hand grenades and
another carried a cloth bag, which Cruz suspected contained
weapons. Although Cruz was dressed in civilian clothing and
unarmed, his acquaintances among the guerillas knew he was
a member of the National Police. This man made eye contact
with Cruz and smiled. Afraid of the armed men, Cruz hurried

After Cruz arrived at his home, he was notified by his
brother that three terrorists had been arrested near the pay
phone where Cruz saw the three armed men. Cruz later dis-
covered that the three terrorists escaped. A few weeks later,
Cruz's mother was warned that Sendero Luminoso believed
Cruz "ratted" on the three men he encountered, leading to
their subsequent arrest. She also heard that the Sendero
Luminoso guerillas wanted to retaliate against Cruz for his
supposed role as an informant.
commits terrorist acts against both government officials and civilians. See
Gonzales-Neyra v. INS, 122 F.3d 1293, 1295 (9th Cir. 1997) (recognizing
the extensive and ongoing impact of Sendero Luminoso); Velarde v. INS,
140 F.3d 1305 (9th Cir. 1998); Meza-Manay v. INS , 139 F.3d 759 (9th Cir.
5 Cruz testified that approximately 80 percent of the National Police offi-
cers stationed in Ayucucho were either killed by Sendero Luminoso gue-
rillas or disappeared under mysterious circumstances.


On May 12, 1989, at approximately 10:00 p.m., while
dressed in civilian clothes, Cruz noticed two men following
him. Cruz saw one of the men reach into his coat as if he was
about to draw a weapon. When Cruz ran, the two men began
to fire their weapons at him shouting, "Policeman, you're
going to die!" and "you're going to die, you informant, you're
going to die." Cruz, however, was able to outrun the guerillas
and escaped without harm.

Cruz reported the incident to his command post the next
day. He asked the commanding officer for protection against
the Sendero Luminoso. The officer informed him that the
force would not be able to protect him because he did not hold
a high enough rank. Indeed, the officer told him he "would
have to protect [his] own life." Cruz then requested that he be
allowed to retire from the force, but the request was denied.
Fearing for his life, Cruz and his family fled Peru.

Cruz and his family entered the United States without
inspection on or about May 30, 1989. The Immigration and
Naturalization Service issued orders to show cause to
petitioners on November 11, 1991, charging them with
deportability pursuant to INA S 142(a)(1)(B), 8 U.S.C.
S 1251(a)(1)(B) (renumbered as INA S 237(a)(1)(B), 8 U.S.C.
S 1227(a)(1)(B)). Petitioners admitted the charges against
them, conceded deportability, and applied for political asylum
and withholding of deportation pursuant to SS 208(a) and
243(h) of the INA, and, in the alternative, for voluntary depar-
ture pursuant to S 244(e).

The IJ denied Cruz's application for asylum and withhold-
ing of deportation, finding that Cruz's testimony was credible,
but that he failed to show he was persecuted "on account of"
a category protected under the INA. The BIA affirmed, stat-
ing that Cruz did not fall under a category protected by the
INA because "[i]t is well established that policemen or mem-
bers of the military are not considered a social group eligible
for asylum."



We review de novo determinations by the BIA of purely
legal questions concerning requirements of the INA. See Vang
v. INS, 146 F.3d 1114, 1116 (9th Cir. 1998). We examine the
BIA's factual findings under the substantial evidence stan-
dard. See Marcu v. INS, 147 F.3d 1078, 1082 (9th Cir. 1998)
("Our task is to determine whether there is substantial evi-
dence to support the BIA's finding, not to substitute an analy-
sis of which side in the factual dispute we find more
persuasive."), cert. denied, 119 S. Ct. 1496 (1999). Review
under the substantial evidence standard allows this court to
reverse the BIA's decision only if the evidence "was so com-
pelling that no reasonable factfinder could fail to find the req-
uisite fear of persecution." INS v. Elias-Zacarias, 502 U.S.
478, 483-84 (1992); see also Borja v. INS, 175 F.3d 732, 735
(9th Cir. 1999) (en banc).

Moreover, where, as here, "the BIA conducts a de novo
review of the record and makes an independent determination
about whether relief is appropriate," we review the BIA's
decision, rather than the IJ's decision.6   De Leon-Barrios v.
INS, 116 F.3d 391, 393 (9th Cir. 1997); see Gonzalez v. INS,
82 F.3d 903, 907 (9th Cir. 1996); Yepes-Prado v. INS, 10 F.3d
1363, 1366-67 (9th Cir. 1993).

Finally, "where the IJ expressly finds certain testimony to
be credible, and where the BIA makes no contrary finding, we
`accept as undisputed' the testimony given at the hearing
before the IJ." Singh v. INS, 94 F.3d 1353, 1356 (9th Cir.
1996) (quoting Singh v. Ilchert, 63 F.3d 1501, 1506 (9th Cir.
6 The BIA also "agree[d] with the [IJ] that the respondent's fear is not
well-founded." The IJ's decision, however, was based solely on the find-
ing that Cruz's persecution was not "on account of" a protected category.
Thus, the BIA's decision went beyond a "review " of the IJ's decision. We
need not, however, reach this portion of the BIA's decision because we
base our opinion on other grounds.


1995)). Because the testimony presented by Cruz was deemed
credible by the IJ, and that credibility finding was not dis-
turbed by the BIA, we accept his testimony as true.


Under S 101(a)(42)(A) of the INA, 8 U.S.C.S 1158(b), the
Attorney General may, in her discretion, grant asylum to an
applicant determined to be a "refugee." See Korablina v. INS,
158 F.3d 1038, 1043 (9th Cir. 1998). Refugee status is estab-
lished by evidence that an applicant is unable or unwilling to
return to his or her home country because of past persecution
or a well-founded fear of future persecution "on account of
race, religion, nationality, membership in a particular social
group, or political opinion." 8 U.S.C. S 1101(a)(42)(A); see
Korablina, 158 F.3d at 1043; Singh v. Ilchert, 63 F.3d at

A. Persecution "On Account of" a Protected Category

The BIA determined that Cruz's persecution by Sendero
Luminoso guerillas was not "on account of race, religion,
nationality, membership in a particular social group, or politi-
cal opinion." 8 U.S.C. S 1101(a)(42)(A). Cruz does not claim
persecution on account of his race, religion, or nationality.
Rather, he claims he was persecuted on account of his mem-
bership in a particular social group and his political opinion.

      1. Membership in a Protected Social Group

[1] The BIA stated that "[i]t is well established that police-
men or members of the military are not considered a social
group eligible for asylum," citing Matter of Fuentes, 19 I. &

N. Dec. 658, 1988 WL 235456 (BIA 1988). In Fuentes, the
BIA refused to grant asylum to an El Salvadoran police offi-
cer because he made no showing that he was persecuted "on
account of" a protected category. The BIA there stated, how-
ever, that "[i]t is possible that mistreatment occurring because


of such a status in appropriate circumstances could be found
to be persecution on account of political opinion or member-
ship in a particular social group." Id. at 662. Fuentes, there-
fore, does not flatly preclude "police officers and soldiers
from establishing claims of persecution or fear of persecu-
tion." Velarde v. INS, 140 F.3d 1305, 1311 (9th Cir. 1998).
Rather, Fuentes suggests that persecution resulting from
membership in the police or military is insufficient, by itself,
to establish persecution on account of membership in a partic-
ular social group or political opinion.

[2] Our cases have also drawn a distinction between cur-
rent and former military or police service when determining
the scope of a cognizable social group under the INA. Persons
who are persecuted because of their status as a former police
or military officer, for example, may constitute a cognizable
social group under the INA. See Velarde, 140 F.3d at 1305
(persecution of a woman because of her former job as the
bodyguard to the daughters of then-President Alan Garcia was
on account of her membership in a particular social group as
well as her political opinion); Chanco v. INS , 82 F.3d 298,
302 (9th Cir. 1996) ("reprisals against former military officer
can provide a basis for granting asylum"); Montecino v. INS,
915 F.2d 518, 520 (9th Cir. 1990).7

[3] Persecution occurring because a person is a current
member of a police force or the military, however, is "not on
account of one of the grounds enumerated in the Act. (Race,
religion, nationality, membership in a particular social group,
or political opinion)." Aguilar-Escobar v. INS, 136 F.3d 1240,
1241 (9th Cir. 1998) (holding that persecution of a woman
because of her government job or her husband's position as
a police officer was not on account of a particular social
group) (footnote omitted); Arriaga-Barrientos v. INS, 937
7 Cruz does not contend on appeal that former members of the National
Police, as a class, are a social group subject to persecution by the Sendero


F.2d 411 (9th Cir. 1991) (persecution of a member of the
Guatemalan military because of such status was not on
account of his membership in a particular social group under
the INA). Substantial evidence, therefore, supports the BIA's
finding that Cruz was not persecuted on account of his mem-
bership in a particular social group.

      2. Political Opinion

[4] Cruz also claims that Sendero Luminoso guerillas per-
secuted him "on account of" his political opinion. In Sangha
v. INS, 103 F.3d 1482, 1488-90 (9th Cir. 1997), we held that
there are three ways that an applicant can establish a "political
opinion." An applicant may show (1) "affirmative political
beliefs," (2) "political neutrality in an environment in which
political neutrality is fraught with hazard, from governmental
or uncontrolled anti-government forces;" or (3)"an imputed
political opinion." Id. at 1488-89. Cruz contends that he was
persecuted on account of his affirmative political opinion and
an imputed political opinion.

[5] There is little or no evidence in the record that compels
a finding that Cruz held an affirmative political belief, much
less that he was persecuted for it. Cruz did not testify that he
had particular political beliefs or opinions, much less political
motives for joining either the marines, the Civil Guard, or the
National Police. Indeed, Cruz asked his employer for permis-
sion to retire from the National Police. Moreover, Cruz did
not choose to be stationed in Ayucucho or work on cases
involving the arrest of Sendero Luminoso guerillas. Further,
Cruz did not testify that he expressed any of his political
beliefs to his persecutors. Substantial evidence, therefore, sup-
ports the BIA's finding that Cruz failed to establish persecu-
tion on the basis of "affirmative political opinion." See
Gonzales-Neyra v. INS, 122 F.3d 1293, 1296 (9th Cir. 1997)
(finding affirmative political opinion where applicant pro-
vided evidence that (1) he had a political opinion, (2) he


expressed the opinion to his persecutors, and (3) the persecu-
tors threatened him after he expressed his opinion).

Cruz also claims he was persecuted on account of a politi-
cal opinion imputed to him by the Sendero Luminoso. He
argues that Sendero Luminoso terrorists attempted to assassi-
nate him because they imputed pro-government, anti-
communist political beliefs to him. He reasons that the
Sendero Luminoso identified him as such because he: (1) was
a known police officer who regularly arrested and searched
Sendero Luminoso members in dangerous zones, such as
Lima and Ayucucho; and (2) was believed to have informed
the authorities regarding an incident leading to the arrest of
three heavily-armed Sendero Luminoso guerillas. 8
8 Respondent contends that Cruz failed explicitly to raise the argument
before the BIA that Sendero Luminoso guerillas imputed a political opin-
ion to him because they perceived him to be an informer, thereby waiving
his right to argue this issue before this court. Although the failure to raise
an issue below typically "constitutes a failure to exhaust remedies with
respect to that question and deprives this court of jurisdiction to hear the
matter," Vargas v. United States Dep't of Immigration and Naturalization,
831 F.2d 906, 907-08 (9th Cir. 1987), the issue in question may have been
argued in a slightly different manner in the lower court and still be pre-
served for appeal. See Jordan v. Clark, 847 F.2d 1368 (9th Cir. 1988)
(deciding the issue on appeal, although it was not clearly framed at trial
as a separate theory of recovery, because the record was fully developed
below); Puerta v. United States, 121 F.3d 1338, 1341-42 (9th Cir. 1997).
Moreover, in Aronson v. RTC, 38 F.3d 1110, 1114 (9th Cir. 1994), we
considered a defense based upon a regulation where, even if the defendant
had not raised it below, the law in the area was clear and the issue was
briefed by both parties. In this case, Cruz argued before the BIA that he
should be protected under the political opinion category because of his sta-
tus as a former member of the National Police. Before the IJ, Cruz testi-
fied that Sendero Luminoso guerillas attacked him because they perceived
him to be an informant. He argued before the BIA that this perception con-
tributed to his persecution by the group, although not explicitly in the "im-
puted political opinion" category. We consider the argument because the
law surrounding this issue is clear, the issue was briefed by both sides, the
record has been adequately developed, and the argument is presented in
only a slightly different form than it was to the BIA.


[6] "An imputed political opinion is a political opinion
attributed to the applicant by his persecutors." Sangha, 103
F.3d at 1489. We consider, however, "not the persecutor's
own political opinions, but rather the political views the per-
secutor rightly or in error attributes to his victims. If the per-
secutor attributed a political opinion to the victim, and acted
upon the attribution, this imputed view becomes the appli-
cant's political opinion as required under the [INA]." Id.

[7] There is no evidence that suggests the Sendero
Luminoso persecuted Cruz on account of an imputed political
opinion. Indeed, Cruz fails to link his persecution to anything
other than his status as a police officer. During their attack,
the guerillas referred to Cruz as a "policeman " and "inform-
er." Neither of these references implies that the guerillas
believed Cruz to hold political beliefs contrary to their own,
much less that they attacked him because of such beliefs.
While the guerillas may have regarded Cruz as an informant,
this is not akin to imputing a political belief to him. See id.
at 1489-90 (holding that applicant failed to establish imputed
political opinion where he presented no evidence that an anti-
governmental guerilla group imputed his father's political
beliefs to him).

[8] Substantial evidence therefore supports the BIA's find-
ing that Cruz was not persecuted "on account of " an imputed
political opinion.

B. Withholding of Deportation

Because Cruz has failed to establish eligibility for asylum,
he "necessarily fails to establish eligibility for withholding of
deportation." Singh-Kaur v. INS, 183 F.3d 1147, 1149 (9th
Cir. 1999).9
9 Cruz also argues that because he, more likely than not, will be tortured
by Sendero Luminoso guerillas if he returns to Peru, he should be given
relief under Article 3 of the Convention Against Torture. This argument,



For the foregoing reasons, the petition for review is


however, was not raised before the BIA; therefore, we cannot consider it.
See Khourassany v. INS, 208 F.3d 1096, 1099 (9th Cir. 2000)
("consideration of claims under the Convention on Torture may not be
urged in the first instance before our court; an applicant must first exhaust
his or her administrative remedies before the BIA").