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Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit  
 Case Name:
Case Number: Date Filed: 
98-71410 01/19/01 



Petitioner,                                           No. 98-71410

v.                                                    INS No.
SERVICE,                                              OPINION

Petition to Review a Decision of
the Immigration and Naturalization Service

Argued and Submitted
August 9, 2000--Seattle, Washington

Filed January 19, 2001

Before: Betty B. Fletcher, Cynthia Holcomb Hall, and
A. Wallace Tashima, Circuit Judges.

Opinion by Judge Tashima;
Dissent by Judge B. Fletcher

Manuel Rios, Seattle, Washington, for the petitioner.

Norah Ascoli Schwarz, U.S. Department of Justice, Washing-
ton, D.C., for the respondent.


TASHIMA, Circuit Judge:

Carlos Molina-Morales ("Molina"), a native and citizen of
El Salvador, petitions for review of an order of the Board of
Immigration Appeals ("BIA"), affirming an Immigration
Judge's ("IJ") decision, denying him both asylum and with-
holding of deportation. The BIA held that Molina had not
established that he was persecuted on account of any
statutorily-protected ground. We have jurisdiction under
S 106(a) of the Immigration and Nationality Act ("INA"), 8
U.S.C. S 1105a(a)(1), "as it was codified prior to the passage
of [the Illegal Immigration Reform and Immigrant Responsi-
bility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (Sept.
30, 1996) (`IIRIRA')]."1Kalaw v. INS, 133 F.3d 1147, 1150
(9th Cir. 1997). We deny the petition for review.


Molina is a 31-year-old unmarried male from Metapan, El
Salvador. In February 1989, Molina's 18-year-old aunt2 and
her children were living with Molina and his grandmother in
Metapan. For extra money, his aunt baby-sat for the family of
Carmen Salazar. Salazar, a wealthy livestock trader, was a
leader of the local ARENA party, and was running for mayor
of Metapan. One night when his aunt came home from baby-
sitting, she told Molina and his grandmother "that Carmen
Salazar had forced her to have sex with him. Afterwards, he
told her that if she told anyone that he would kill her and the
1 Because the BIA issued its decision in this case on November 4, 1998
and Molina's deportation proceedings began on November 19, 1992,
S 106 of the INA applies. See IIRIRAS 309(c)(4); Kalaw v. INS, 133 F.3d
1147, 1150 (9th Cir. 1997) (applying IIRIRA's transitional rules for judi-
cial review to all final orders of deportation issued by the BIA on or after
October 31, 1996, in cases in which the alien was placed in proceedings
before April 1, 1997).
2 The record does not reflect the name of Molina's aunt.

person that she told." The grandmother suggested that they
speak with Father Baria, a priest in the Catholic church, but
Molina and his aunt went to the police station the next day.
The aunt told a detective her story and he said there would be
a wait for the court papers.

A week after they went to the police, Molina's aunt "left
for school and she didn't come back. We looked for her
everywhere, but we couldn't find her." Four men then came
to Molina's home and asked if he could accompany them to
the station so that the sergeant could ask him questions. At the
station, Molina was questioned about his family until his
grandmother arrived with Father Baria, who requested to
remain with Molina during the questioning. The police
stopped their questioning but retained Molina's travel docu-
ments and his voter identification card.

Three or four days later, a man came to the home to tell
Molina that there was a young woman's cadaver at the
morgue that may be his aunt. Molina felt uneasy because "I
had never seen that man before and it seemed strange to me
that he was telling me that." As Molina walked toward the

      a truck stopped by and four men came out of the
      truck and one of them put a pistol against my head
      and they put a bag over my head and they threw me
      on the truck's bed, and they started stepping on my
      fingers, but [at that point] they weren't asking any
      questions they were just torturing me. They put their
      boots on top of my face.

They then started beating Molina, asking "if anybody knew
about the claim [of rape] that we made."

Molina left El Salvador, going across the border to Guate-
mala. His grandmother visited him twice, and told him that
Salazar was mayor of Metapan, "and that the men working for

Carmen Salazar continue to search for the respondent." His
grandmother did not visit again because on the second visit,
"someone followed her."

Molina entered the United States without inspection on or
about September 1, 1989, at San Ysidro, California. He then
went to Canada to seek asylum. From Canada, he spoke with
his grandmother who "would cry and tell me that men were
still looking for me and that I could never return[to El Salva-
dor]." According to Molina, men go to his grandmother's
home "all the time. They keep asking her where I am --
where do I live." He testified that Salazar's people would kill
him if he returned to El Salvador because "they think I would
denounce them."

After living in Canada for about three years, Molina
returned to the United States without inspection because his
asylum application was denied in Canada. Molina purchased
forged immigration papers and false identification in the
United States, which he used to procure a U.S. passport.3

On November 19, 1992, the Immigration and Naturaliza-
tion Service issued an Order to Show Cause, charging Molina
with entering the United States without inspection in violation
of INA S 241 (a)(1)(B), 8 U.S.C. S 1251(a)(1)(B) (recodified
at INA S 237, 8 U.S.C. S 1227). In 1997, the IJ denied Moli-
na's application for asylum and withholding of deportation,
and ordered him deported to El Salvador. The IJ found that
Molina was not credible, and that, even if he were, he failed
to show that he was persecuted "on account of " political opin-
ion, or any other ground protected under the INA.

Molina appealed to the BIA, which dismissed his appeal in
3 On November 27, 1996, in the United States District Court for the
Western District of Washington, Molina was convicted of making a false
statement in an application for a passport, in violation of 18 U.S.C.
S 1542.

a 2-1 decision. The BIA did not find it necessary to make a
credibility determination, because it found that even if Moli-
na's testimony were credible, he failed to meet his burden of
proving eligibility for asylum. The BIA noted that Molina
"provided no evidence that he opposed the ARENA party or
that he was in any way involved with a political party or in
political activities in El Salvador." The BIA also asserted that
Molina's "attackers did not mention the ARENA party, or
anything else of a political nature during the attack." The BIA
concluded that Molina's "attackers were [not ] in any way
motivated by the respondent's political opinion or an opinion
they imputed to him. . . . Rather, the evidence suggests that
he fears harm because of a personal matter between him and
Carmen Salazar." The BIA found that Molina failed to estab-
lish either past persecution or a well-founded fear of future
persecution "on account of" any of the statutory grounds, and
thus did not qualify for either asylum or withholding of depor-
tation. Molina filed a timely petition for review.

Standard of Review

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, 526 U.S. 1087 (1999). We must
uphold findings by the BIA "unless the evidence compels a
contrary conclusion." Prasad v. INS, 101 F.3d 614, 617 (9th
Cir. 1996) (citing INS v. Elias-Zacarias, 502 U.S. 478, 483-84
(1992)). We review the BIA's decision, rather than the IJ's
decision, because "the BIA conduct[ed] a de novo review of
the record and ma[de] an independent determination about
whether relief is appropriate." De Leon-Barrios v. INS, 116
F.3d 391, 393 (9th Cir. 1997); see also Ghaly v. INS, 58 F.3d

1425, 1430 (9th Cir. 1995) (stating that we can only review
the BIA's decision when it conducts a de novo review, "ex-
cept to the extent that the IJ's opinion is expressly adopted by
the Board").


[1] The Attorney General may, in her discretion, grant asy-
lum to an applicant determined to be a refugee, within the
meaning of INA S 101(a)(42)(A), 8 U.S.C. S 1101(a)(42)(A).
An alien establishes refugee status if he is unable or unwilling
to return to his country of nationality or residence either
because (1) he was persecuted in the past, or (2) he has a
well-founded fear of future persecution "on account of race,
religion, nationality, membership in a particular social group,
or political opinion." INA S 101(a)(42)(A), 8 U.S.C.
S 1101(a)(42)(A); see INS v. Cardoza-Fonseca, 480 U.S. 421,
423 (1987); Korablina v. INS, 158 F.3d 1038, 1043 (9th Cir.
1998). In this case, Molina argues that he is eligible for asy-
lum because he was persecuted on account of an imputed
political opinion.

The Attorney General must withhold deportation of any
asylum applicant who establishes a "clear probability of per-
secution," which is a stricter standard than the "well-founded
fear" standard for asylum. INS v. Stevic, 467 U.S. 407, 430
(1984). An alien who fails to establish eligibility for asylum
"necessarily fails to establish eligibility for withholding of
deportation." Singh-Kaur v. INS, 183 F.3d 1147, 1149 (9th
Cir. 1999). The applicant has the burden of proving his eligi-
bility with "credible, direct, and specific evidence." Prasad v.
INS, 47 F.3d 336, 338 (9th Cir. 1995) (quoting Shirazi-Parsa
v. INS, 14 F.3d 1424, 1427 (9th Cir. 1994), overruled on other
grounds by Fisher v. INS, 79 F.3d 955 (9th Cir. 1996) (en

[2] In Sangha v. INS, 103 F.3d 1482 (9th Cir. 1997), we
held that there are three ways that an applicant can establish

a "political opinion" claim. See id. at 1488-90. An applicant
can show: (1) "affirmative political beliefs; " (2) "political
neutrality in an environment in which political neutrality is
fraught with hazard, from governmental or uncontrolled anti-
governmental forces;" or (3) "an imputed political opinion."
Id. at 1488-89. The BIA concluded that Molina's "attackers
were [not] in any way motivated by the respondent's political
opinion or an opinion they imputed to him."

There is no evidence in the record, nor does Molina assert,
that he was persecuted on account of his affirmative political
beliefs. Rather, Molina argues that his report of the rape was
construed by Salazar and his supporters as "an act against the
ARENA party," and that he was therefore persecuted on
account of an imputed political opinion. We agree with the
BIA, however, that Molina was not persecuted on account of
any political opinion, actual or imputed.

[3] "An imputed political opinion is a political opinion
attributed to the applicant by his persecutors." Sangha, 103
F.3d at 1489. Under this analysis, "the focus of inquiry turns
away from the views of the victim to the views of the persecu-
tor," and the court examines "the political views the persecu-
tor rightly or in error attributes to his victims. " Id. In order to
establish an imputed political opinion, "the applicant must
show that his persecutors actually imputed a political opinion
to him." Id.

[4] Molina has not presented any evidence that supports,
much less compels, a conclusion that his persecutors attri-
buted a political opinion to him. Rather, as the BIA stated,
"the evidence suggests that he fears harm because of a per-
sonal matter between him and Carmen Salazar." There is no
evidence that Molina's attackers thought that he was aligned
with any opposition to the ARENA party. See, e.g., Cordon-
Garcia v. INS, 204 F.3d 985, 992 (9th Cir. 2000)
("Petitioner's `presumed affiliation' with the Guatemalan
government -- an entity the guerrillas oppose -- is the func-

tional equivalent of a conclusion that she holds a political
opinion opposite to that of the guerrillas, whether or not she
actually holds such an opinion."); Sangha, 103 F.3d at 1489
(noting that an imputed political opinion may be found where
one party to a conflict insists to the victim that the victim is
aligned with the other side, citing, inter alia, Singh v. Ilchert,
63 F.3d 1501, 1509 (9th Cir. 1995)). Molina does not assert
that he ever expressed views that might have been construed
as "political opposition to [ARENA]'s goals." Vera-Valera v.
INS, 147 F.3d 1036, 1039 (9th Cir. 1998). Nor is Molina "a
member of a large, politically active family many of whom
have already been persecuted for their political beliefs."
Sangha, 103 F.3d at 1489 (citing Ramirez Rivas v. INS, 899
F.2d 864, 865-66 (9th Cir. 1990)).

[5] This case is unlike Navas v. INS, 217 F.3d 646 (9th Cir.
2000), in which the only reason for the murder of the petition-
er's aunt was "her murdered husband's political activities and
her relationship to him." Id. at 660-61. In Navas, the "logical
inference to be drawn from the circumstances" was that the
aunt was murdered because her persecutors "presumed sym-
pathy for the [opposing] position on her part. " Id. at 661. By
contrast, the evidence before us indicates that the disappear-
ance of Molina's aunt was due solely to her report of the rape
by Salazar. There is no evidence that Salazar's supporters pre-
sumed sympathy on her part or Molina's part for an opposing
political view. The mere fact that Salazar was a politician
does not compel a conclusion that Molina was persecuted on
account of any political opinion his persecutors imputed to
him. Salazar's part-time profession as a politician is merely
incidental. Even if Salazar had a personal vendetta against
Molina, "[p]urely personal retribution is, of course, not perse-
cution on account of political opinion." Grava v. INS, 205
F.3d 1177, 1181 n.3 (9th Cir. 2000). We therefore hold that
Molina has failed to establish his eligibility for asylum
because he has not shown that he was persecuted on account
of imputed political opinion.

[6] Because Molina has not met the lesser burden of estab-
lishing his eligibility for asylum, he necessarily has failed to
meet the more stringent "clear probability" burden required
for withholding of deportation. Singh-Kaur, 183 F.3d at 1149.

The petition for review is DENIED.
B. FLETCHER, Circuit Judge, dissenting:

I respectfully dissent. While I acknowledge that this is a
close case, I believe that Molina-Morales has alleged facts
that are sufficiently compelling to support a claim of persecu-
tion on account of imputed political opinion and to require a
remand back to the BIA for a credibility determination.

As an initial matter, not mentioned in the majority's recital
of the facts is the fact that after being severely beaten,
Molina-Morales was also thrown unconscious into a river and
presumably left for dead by his armed attackers. It was only
after these attackers had departed that a nearby farmer felt it
was safe enough to come over, "saw that [Molina-Morales]
was still breathing," and then rescued him. The only reason-
able inference to be drawn from this account is that the attack
by Salazar's henchmen constituted nothing short of attempted

Most important, I find incredible the majority's (and the
BIA majority's) characterization of these attacks as"[not] in
any way motivated by [Molina-Morales]'s political opinion or
an opinion [his attackers] imputed to him. " To be accused of
rape clearly imperiled Salazar's impending mayoral candi-
dacy, as well as his status as local ARENA leader. Most
likely, some combination of both personal and political moti-
vations played a role in Salazar's actions in the aftermath of
the alleged rape. As we stated in Navas v. INS , 217 F.3d 646,
658 (9th Cir. 2000), "this court has made clear[that] the stat-

ute 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 persecution in question; it need not be the sole motive."
See also Borja v. INS, 175 F.3d 732, 734 (9th Cir. 1999) (en
banc) ("the plain meaning of the phrase `persecution on
account of the victim's political opinion,' does not mean per-
secution solely on account of the victim's political opinion")
(internal quotations omitted). Moreover, the fact that Salazar
was able to enlist the services of the police leads me to con-
clude that the political component outweighed any personal
motivations in the persecution that Molina-Morales under-

Indeed, the majority's conclusion can only be believed if
one turns a blind eye to the recent political and socioeconomic
history of El Salvador. In 1989, when these incidents took
place, El Salvador was engaged in a lengthy, devastating and
highly polarizing civil war. In such a divided society, it would
be unreasonable to presume that the rape accusation against
Salazar would not also be construed as an overtly political act,
posing a direct threat to the established political order. Simply
put, parties to ordinary, apolitical "personal vendettas" nor-
mally do not and cannot enlist the organs of the state to carry
out their aims. Thus, to characterize Salazar's political status
as local ARENA leader (and now mayor) as being "merely
incidental" to Molina-Morales's persecution completely mis-
reads the nature of El Salvadoran society at the time of these
events, and unreasonably downplays the likelihood that Sala-
zar and his ARENA supporters imputed inimical political
views to Molina-Morales.

This case is therefore much closer to Navas, in which we
held that an El Salvadoran refugee -- whose aunt and uncle
had been murdered by the Salvadoran military, whose mother
had been beaten and threatened with death, and whose own
life had been threatened -- qualified for withholding of
deportation (and not just for asylum) based on imputed politi-

cal opinion. To be sure, Navas's aunt had been married to a
member of the leftist guerilla group Frente Farabundo Marti
para la Liberacion Nacional ("FMLN"), and Navas himself
was known to have distributed political materials. Navas, 217
F.3d at 660-61. Critically, however, like this case, the out-
come in Navas also turned on the claim that the soldiers were
motivated not by imputed political opinion, but by a personal
vendetta to eliminate a witness to their crimes. The Navas
court flatly rejected this argument, stating that "the BIA found
that the soldiers' actions were motivated solely by the desire
to avoid prosecution. That conclusion is patently erroneous, as
any reasonable factfinder would be compelled to conclude."
Id. at 661; see also Yazitchian v. INS, 207 F.3d 1164 (9th Cir.
2000) (rejecting the BIA's conclusion that the persecution
suffered by Armenian petitioners accused of Dashnak party
affiliation was personal, and holding that extortion demanded
by the government arose in part because of imputed political
opinion); Grava v. INS, 205 F.3d 1177, 1181 & n.3 (9th Cir.
2000) (holding that "official retaliation against those who
expose and prosecute governmental corruption may . ..
amount to persecution on account of political opinion," and
noting that while "[p]urely personal retribution" is not cogni-
zable for asylum purposes, "many persecutors have mixed
motives"); Vera-Valera v. INS, 147 F.3d 1036 (9th Cir. 1999)
(finding imputed political opinion because Peruvian guerrillas
viewed a cooperative's president's support for a building proj-
ect to be against their political agenda, even though he sup-
ported the project for business, rather than political, reasons).
Notably, the acts of persecution in Navas also took place in
June 1992 -- after the signing of the peace accord between
the ARENA-dominated El Salvadoran government and the
FMLN. By contrast, the persecution suffered by Molina-
Morales took place while the civil war was still raging, and
when political and social polarization was presumably much
higher. Cf. Cordon-Garcia v. INS, 204 F.3d 985, 992
("Petitioner's `presumed affiliation' with the Guatemalan
government -- an entity the guerrillas oppose -- is the func-

tional equivalent of a conclusion that she holds a political
opinion opposite to that of the guerrillas, whether or not she
holds such an opinion.") (citing Briones v. INS, 175 F.3d 727,
729 (9th Cir. 1999) ("[D]eath threats by people on one side
of a civil war against a person suspected of being on the other
side constitute[s] persecution on account of political opin-

I respectfully dissent because Molina-Morales's treatment
in this case was at least in part on account of imputed political



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