923 F. 2d 861 - Gonzalez-Garcia v. United States Immigration and Naturalization Service

MEMORANDUM**

Gonzalez-Garcia entered the United States without inspection on June 14, 1986. At her deportation hearing, she conceded to the charge of deportability and applied for asylum under Section 208(a) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1158(a). She also sought a waiver of deportability under Section 244(e) of the Act. An immigration judge denied relief.

On appeal to the Board of Immigration Appeals, Gonzalez-Garcia contended that she had established a reasonable and well-founded fear of persecution necessary for asylum under 208(a). The BIA affirmed the immigration judge's decision. Because we conclude, to the contrary, that Gonzalez-Garcia established a well-founded fear of persecution, we hold that the BIA's decision lacked substantial evidence. See Beltran-Zavala v. I.N.S., 912 F.2d 1027, 1029 (9th Cir.1990). Accordingly, we reverse.

To become eligible for asylum, an alien must satisfy a two-step process. First, she must qualify as a "refugee" under 8 U.S.C. Sec. 1101(a)(42)(A) by showing that she is unable or unwilling to return to her country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Id. If statutory eligibility is established, the Attorney General may, as a matter of discretion, grant asylum. See Barraza-Rivera v. INS, 913 F.2d 1443, 1449 (9th Cir.1990).

To establish a well-founded fear of persecution, an alien need only show a "reasonable possibility" of persecution. Hernandez-Ortiz v. INS, 777 F.2d 509, 513 (9th Cir.1985). A well-founded fear may exist even when there is one-in-ten possibility of persecution. Beltran-Zavala, 912 F.2d at 1030. The record indicates that Gonzalez-Garcia satisfied both the subjective requirement of a showing of genuine fear, as well as the objective standard requiring that her fear be reasonable.

Gonzalez-Garcia testified that her common-law husband, Raoul Velazquez, with whom she lived from 1974 until 1979, disappeared in November 1979. His body, showing signs of torture, was found several days later. Gonzalez-Garcia attributed his death to his involvement in an anti-government guerrilla organization, the Guatemalan Work Party ("P.G.T."). After his death, Gonzalez-Garcia said she received eight or nine threatening letters signed by the P.G.T. They demanded that she turn over any materials including arms that her husband possessed. The last letter she received before she fled threatened her with the same fate as her husband.

The BIA did not question Gonzalez-Garcia's credibility, and once credibility has been accorded, corroborative evidence is not required. See id. Accordingly, we hold that her testimony establishes a well-founded fear of persecution. In previous cases, we have extended asylum to "aliens who can show political persecution based on abuses endured by family members and friends, even though the abuse has not yet reached the alien personally." Id. at 1031 (citing Ramirez-Rivas v. INS, 899 F.2d 864 (9th Cir.1990). The torture and murder of Gonzalez-Garcia's husband is evidence of such past abuse.

Moreover, in the context of the political climate in Guatemala1, the perceived political wrong-doing of one relative, which results in death, is often enough to place another relative in danger. As this court noted in Lazo-Majano v. INS, 813 F.2d 1432, 1435 (9th Cir.1987), "in deciding whether anyone has a well-founded fear of persecution ... one must continue to look at the person from the perspective of the persecutor. If the persecutor thinks the person guilty of a political opinion, then the person is at risk."

Gonzalez-Garcia's perceived unwillingness to cooperate with her persecutors by delivering the materials, including arms, they believed her husband had given her likely increased their suspicion of her. As we recognized in Beltran-Zavala, 912 F.2d at 1030, "political persecution may be based on a political opinion imputed to the alien." Such suspicion in the mind of a persecutor establishes at least a one-in-ten chance of persecution. See id.; see also Arteaga v. INS, 836 F.2d 1227, 1229 (9th Cir.1988).

The BIA's conclusion that because Gonzalez-Garcia received numerous threats over a four-year period without harm, her fear was not reasonable, is inconsistent with judicial precedent. We have held that a petitioner's ability to remain unharmed in a country for significant time periods was insufficient to defeat a claim of persecution. See Damaize-Job v. INS, 787 F.2d 1332, 1336 (9th Cir.1986) (two year stay without harm did not defeat persecution claim); Rodriguez v. INS, 841 F.2d 865 (9th Cir.1987) (six month stay without harm did not defeat persecution claim); Ramirez-Rivas, 899 F.2d at 871 (alien's unharmed stay of several months has only marginal probative value). Moreover, continued warnings are as likely to indicate mounting danger as they are to suggest its absence.

We also reject the BIA's conclusion that because Gonzalez-Garcia received no threats in Rio Bravo, she could return there, rather than Guatemala City, with no reasonable fear of persecution. In Quintanilla-Ticas v. INS, 783 F.2d 955, 957 (9th Cir.1986), our court held that because an alien could be deported to another part of El Salvador in safety, he did not have a reasonable fear of persecution. However, in rejecting such an analysis in Beltran-Zavala, 912 F.2d at 1030, we emphasized that the alien in Quintanilla-Ticas had been threatened by an individual, while the alien in Beltran-Zavala had been threatened by a death squad, which had the "power to enforce its will."

The facts in this case are closer to Beltran-Zavala than they are to Quintanilla-Ticas. Gonzalez-Garcia has not been threatened by an individual; she has received death threats signed by a major subversive group in Guatemala. As with the death squads in Beltran-Zavala, both the P.G.T. and the Guatemalan military have the power to enforce their will throughout the country. Gonzalez-Garcia's fear of persecution is therefore reasonable.

The BIA's conclusion that Gonzalez-Garcia has not established a well-founded fear "on account of" political opinion is likewise without merit. Her husband's apparent involvement in a subversive guerrilla group was, by definition, political. The political involvement of one family member may be imputed to another. See Beltran-Zavala, 912 F.2d at 1030-31. Her husband's death, coupled with the death threats she has received, indicate that her persecutors viewed her as hostile to their political cause. As the Lazo-Majano court recognized, 813 F.2d at 1435, an alien's "opinions have been politically unacceptable only because of the opposition and hostility the persecutors have read into their silence or noncommitment to the persecutors' opinions." Id.

Although this court must defer to the BIA's determinations, when, as here, they are not supported by substantial evidence they must be overturned. See Ramirez-Rivas, 899 F.2d at 873. Gonzalez-Garcia met the threshold test necessary to trigger the Attorney General's discretion as to whether to grant asylum.

REVERSED.

I respectfully dissent because the majority demonstrates a fundamental misunderstanding of our role as a reviewing court. We are not to substitute our judgment for that of the Board of Immigration Appeals (BIA). Rather

we must apply a deferential standard of substantial evidence to the BIA's conclusions based upon the evidence in the record. Consequently, "we may not reverse the BIA simply because we disagree with its evaluation of the facts, but only if we conclude that the BIA's evaluation is not supported by substantial evidence."

Sanchez-Trujillo v. INS, 801 F.2d 1571, 1579 (9th Cir.1986) (quoting Diaz-Escobar v. INS, 782 F.2d 1488, 1493 (9th Cir.1986)). Thus, if there is substantial evidence in the record to support the decision of the BIA, we must affirm its decision and subordinate our own personal beliefs to our duties as judges. Because there is substantial evidence in the record to support the finding of the BIA that Gonzalez-Garcia had not demonstrated she was unable to return to her native land "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion" (8 U.S.C. Sec. 1101(a)(42)(A)), I would affirm.

The facts in this case are not in dispute.1 From approximately 1976 through November 1979, Gonzalez-Garcia resided in Rio Bravo with Raul Velasquez in a common-law marriage relationship. Gonzalez-Garcia did not know much about Velasquez's activities except for the fact that he was frequently absent from their home at night. Additionally, she once found one piece of anti-government "propaganda" in his pants pocket. In November 1979, Velasquez was murdered. His body showed signs of torture. Gonzalez-Garcia does not know who murdered Velasquez or why.

In October 1980, Gonzalez-Garcia moved to Guatemala City and began working as a police officer. She shared a small apartment close to the police station with a female fellow officer. In April 1981, a note was slipped under her door demanding that she hand over documents and weapons which allegedly had been in the possession of Velasquez prior to his death. The note did not specifically describe the documents requested. It was signed by the PGT, the Guatemalan Work Party. By December 1983, Gonzalez-Garcia had received "more or less" seven more notes.

In April 1982, while Gonzalez-Garcia was working as a police officer in the city, a gun was fired approximately two feet away from her as she walked down a street. Gonzalez-Garcia testified that the street was "real busy" and there were "lots of cars going by." She also testified, however, that she thought that the shot "could" have been aimed at her as "the street was almost empty."

From sometime in 1982 through mid-1983, Gonzalez-Garcia resided in another apartment in Guatemala City. She received no threatening notes during this period. In January 1984, Gonzalez-Garcia left Guatemala City and moved to her parents home in Rio Bravo. She reports that she did not receive any threats and was not disturbed in any way during her stay in Rio Bravo.

In October 1984, Gonzalez-Garcia returned to Guatemala City. Upon her return she chose to reside in the same apartment where she had previously received the notes. She stated that she did so because it cost "less money" and because she believed that her association with the police would result in "maybe nothing" happening to her. In April 1985, Gonzalez-Garcia received a final note. This note threatened that if she failed to comply with the demands therein and surrender the unspecified documents, she would be subject to the "same risk or same luck" as Velasquez.

In June 1985, she returned to her parents' home in Rio Bravo where she resided, apparently unmolested, through May of 1986. She then left for the United States.

A decision of the BIA that a petitioner lacks a well-founded fear of persecution is reviewed under the substantial evidence standard. Turcios v. INS, 821 F.2d 1396, 1398 (9th Cir.1987); Chavez v. INS, 723 F.2d 1431, 1432 (9th Cir.1984). "Substantial evidence is more than a mere scintilla and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Turcios, 821 F.2d at 1398. Thus the standard might be described as requiring the conclusion of the BIA to be "substantially reasonable." Diaz-Escobar, 782 F.2d at 1493; Zacarias v. INS, 908 F.2d 1452, 1455 (9th Cir.1990).

The well-founded fear of persecution requirement has both a subjective and an objective component. Sanchez-Trujillo, 801 F.2d at 1579. The subjective requirement mandates that the petitioner possess genuine fear. Id. The objective element "requires a showing by credible, direct, and specific evidence in the record, of facts that would support a reasonable fear that the petitioner faces persecution." Diaz-Escobar, 782 F.2d at 1492.

I have no quarrel with Gonzalez-Garcia's testimony that she possessed genuine fear. Indeed, the BIA did not find her testimony incredible. But this is only part of the equation. The other part requires an objective showing of "credible, direct and specific evidence in the record, of facts that would support [Gonzalez-Garcia's] reasonable fear that [she] faces persecution." Id. On the evidence in the record, the BIA found this evidence lacking. I would not disturb this finding.

The primary focus of Gonzalez-Garcia's petition is the threatening letters she received. Except for the shooting incident on the street, the source of which is left wholly to speculation, there is no indication that Gonzalez-Garcia was actually persecuted in her native land. Although the last letter contained a reference to the murder of her common-law husband, the author of the note did not claim responsibility for Velasquez's death and there is no indication who tortured him or caused his death.

A threat of persecution can be enough to qualify a petitioner for asylum. Zacarias, 908 F.2d at 1456. In analyzing the threat, however, one must recognize that "[t]he probative value of a threat depends upon 'whether there is reason to take [it] seriously.' " Lazo-Majano v. INS, 813 F.2d 1432, 1439 (9th Cir.1987) (quoting Bolanos-Hernandez, 767 F.2d 1277, 1285 (9th Cir.1984)). To determine whether there was a "reasonable possibility" that the threats will be carried out, "we examine the ... will or ability [of its makers] to carry out the threat, not simply whether threats were made." Rodriguez-Rivera v. INS, 848 F.2d 998, 1006 (9th Cir.1988). Gonzalez-Garcia received a total of "more or less" nine notes over a six-year span. All of the notes were received when she resided in a particular apartment in Guatemala City. No threats were received when she resided in another location in the city or elsewhere in the country. Given that there was ample time and opportunity over a period of years to make good the threats, with nothing to indicate any attempt to do so except Gonzalez-Garcia's speculation about what she thought was a gunshot which "could" have been aimed at her in 1982, the record demonstrates that Gonzalez-Garcia was not in danger of the threats being carried out.

Additionally, it is significant that no notes were received in the thirteen months before Gonzalez-Garcia left Guatemala. When a similar situation arose in Rodriguez-Rivera we stated that

it is significant that Rodriguez-Rivera continued to live undisturbed from December 1981 until February 1982 and that there was no objective evidence that the guerrillas were still interested in him. The BIA legitimately considered this two-month period as undermining Rodriguez-Rivera's claim that he had a well-founded fear of persecution.

Id. The thirteen-month period involved here is significantly longer than two-month span which we considered so telling in Rodriguez-Rivera.

I would affirm.