Deloso v. Ashcroft ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESSIE AROMIN DELOSO,  No. 02-72317
Petitioner, Agency No.
v. A70-778-153
JOHN ASHCROFT, Attorney General,  AMENDED
Respondent. OPINION
DENYING
 REHEARING
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted
May 13, 2004—San Francisco, California
Opinion Filed August 2, 2004
Amended January 3, 2005
Before: Betty Binns Fletcher, Stephen S. Trott and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge Fisher
1
4 DELOSO v. ASHCROFT
COUNSEL
Lizbeth A. Galdamez and Michael P. Karr, Sacramento, Cali-
fornia, for the petitioner.
Jeffrey J. Bernstein and John M. McAdams, Jr., United States
Department of Justice, Office of Immigration Litigation,
Washington, D.C., for the respondent.
Beth Werlin and Trina Realmuto, Washington, D.C., for
amicus curiae American Immigration Law Foundation.
OPINION
FISHER, Circuit Judge:
Jessie Aromin Deloso, a native and citizen of the Philip-
pines, petitions for review of the denial of his request for asy-
lum and withholding of deportation. Deloso also challenges
the summary affirmance procedures of the Board of Immigra-
tion Appeals (“BIA”) and has moved for a stay of voluntary
departure pending judicial review.
Deloso unquestionably suffered what would appear to be
persecution: within the space of two years, he was shot at by
unknown gunmen, attacked by a group of men carrying
knives and set upon on another occasion by a man armed with
a pipe; he received death threats shortly after the assassination
of another member of his political party who held local office;
and, even after he relocated to another part of the Philippines,
he was followed by a man he identified as the son of his
DELOSO v. ASHCROFT 5
father’s political enemy such that he did not feel safe staying
in one location for very long. The question presented here,
however, is whether any of these actions were on account of
his political opinion.
Although the police never found out who was responsible
for these acts, Deloso believes that Apolino Advincula — the
head of a criminal organization and also a Communist party
member and hit man — was the most likely instigator.
Advincula had two potential motives. First, as a Communist
party henchman, he often did “favors” for Communist politi-
cians by ridding them of opposition party candidates. Delo-
so’s father, Sixto Deloso — who was elected as a councilor
of their hometown of Bacoor shortly before the incidents
affecting Deloso — was such a person, as a member of the
Strength of Democracy party and as a politician who was
interested in reforms that might have interfered with Commu-
nist party efforts to entice youths to join the party with the
lure of illicit drugs. Moreover, Deloso worked as the youth
leader of his father’s campaign. Advincula therefore could
have been asked to frighten Sixto Deloso and his politically
active son, causing the entire family to flee Bacoor.
On the other hand, Advincula could have been motivated
by a more personal desire: revenge. Sixto Deloso, before run-
ning for councilor, had served as the leader of a nonpartisan
neighborhood association and, in that role, had informed the
police about Advincula’s criminal enterprises. Consequently,
Advincula spent three weeks in jail.
The Immigration Judge (“IJ”) apparently assumed that
Advincula was responsible for the events but that he was
motivated only by vengeance. The IJ made this determination,
however, without the benefit of two en banc opinions that
clarified our law on cases involving mixed motives such as
those present here. See Borja v. INS, 175 F.3d 732, 736 (9th
Cir. 1999) (en banc); Briones v. INS, 175 F.3d 727, 729 (9th
6 DELOSO v. ASHCROFT
Cir. 1999) (en banc).1 These opinions held that an applicant
need only “produce evidence from which it is reasonable to
believe that the harm was motivated, at least in part,” by a
protected ground. Borja, 175 F.3d at 736 (emphasis added)
(quoting In re T-M-B-, Interim Dec. No. 3307 (BIA Feb. 20,
1997)). The record compels the conclusion that the harms
inflicted here were at least in part on account of Deloso’s
political opinion. There is no question that Advincula was a
hit man for the Communist party and thus could have been
acting at the behest of his political masters. Further, direct
evidence linked the attacks to the Communist party — the
party’s hammer-and-sickle emblem was left at two of the
locations where incidents occurred. In addition, the incidents
began shortly after Sixto Deloso was elected councilor and
occurred during the period in which another Strength of
Democracy member, the mayor of Bacoor, was assassinated.
Further, one attack occurred when Deloso and his father were
en route to a political meeting.
Because the Delosos’ unrefuted testimony and other record
evidence compel a finding that the harm Deloso suffered was,
at least in part, on account of his political opinion, we grant
the petition and remand for further proceedings.
I.
A. Factual Background
The following facts are drawn from the testimony of
Deloso and his father. Although the IJ noted several inconsis-
tencies between the testimony and Deloso’s written applica-
tion, he did not make an explicit credibility finding. We
therefore have to credit the testimony as true. See Lopez v.
Ashcroft, 366 F.3d 799, 802 (9th Cir. 2004).
1
The BIA’s summary affirmance occurred several years after Borja and
Briones were issued. The BIA’s decision did not refer to either opinion,
however, even though Deloso referred to both in his brief on appeal.
DELOSO v. ASHCROFT 7
Deloso lived with his parents and seven siblings in Bacoor
from 1974 until the spring of 1988. In 1988 all of Deloso’s
family — except for Deloso and one of his sisters who lived
in Manila — left the Philippines due to Sixto Deloso’s fears
for their safety. Sixto Deloso had good cause to be frightened:
shortly after he was elected as councilor of Bacoor as a candi-
date for the democratic party, “Strength of Democracy,” he
and his family were attacked, their store was ransacked and
they received death threats.
The campaign of terror apparently began in February 1987,
the same month in which Sixto Deloso was elected as coun-
cilor on a platform pledging, among other things, “total eradi-
cation of communism in the entire municipality.” On their
way to a political meeting, Deloso, his brother Marlon and
Sixto Deloso were ambushed. Their jeep was riddled with
bullets and flipped over due to the driver’s fright. The passen-
gers suffered a few bruises, but no other injuries. Although
Deloso and his father testified that they did not know who
was to blame, documents within the record implicate the
Communists. Deloso and his brother Marlon in their respec-
tive asylum applications blamed the attack on the military arm
of the Communist party, the New People’s Army, and Sixto
Deloso in an affidavit claimed that “communist gunmen”
were responsible.
The next month, in March 1987, an unknown person ran-
sacked and stole food from the family’s store, located in the
Queens Row neighborhood in which they lived. Deloso and
his father stated they believed that Communists were respon-
sible because the marauders left behind a calling card — a
Communist emblem, the hammer and sickle, drawn on the
wall of the store.
A few months later, in June 1987, unknown assailants
assassinated another Strength of Democracy party member,
the mayor of Bacoor, Lito Miranda. Deloso stated he believed
that one of the other political parties — and most likely the
8 DELOSO v. ASHCROFT
Communist party — was to blame for Miranda’s death. Sixto
Deloso testified that people suspected Advincula was to
blame, but that no one knew for sure. In an affidavit, he also
claimed that the Communists had assassinated Miranda.
After Miranda’s killing, Sixto Deloso started to think that
he should resign his political office. His worries were com-
pounded several months later, when he and his family began
to receive death threats. In August 1987, an unsigned letter
was found in the gate to the family’s yard, stating “beware
because you’re next.” The letter included 10 crosses that
Deloso’s father interpreted to represent himself, his wife and
their eight children.
Later that month, Sixto Deloso found a funeral garment,
called a barong tagalog, on the porch of the Deloso home. The
garment was covered with sand and stones, which Sixto
Deloso interpreted as suggesting that “you are dead, you will
wear the barong tagalog, and they will dig a hole and later . . .
your corpse will be . . . put there inside the hole, and then you
will be covered by sand and gravel.” Jessie Deloso confirmed
that leaving the garment was a “sign that you’re going to be
killed and you’re next.” Although the translation made his tes-
timony somewhat confusing, Sixto Deloso did state that a
hammer-and sickle emblem was also found with or near the
barong tagalog.2
Deloso and his father testified that they reported these inci-
dents to the police, even though they had to travel two hours
to reach the nearest police station. They also stated that,
because of the distance and lack of resources, they believed
that the police were unable or unwilling to provide much
long-term support to protect them from the people or groups
2
Deloso’s counsel stated at oral argument that no such emblem was
found with the barong tagalog. Because Sixto Deloso testified that there
was, however, we shall assume that counsel overlooked his testimony in
that regard.
DELOSO v. ASHCROFT 9
threatening them. Consequently, shortly after receiving the
barong tagalog, most of the family decided to relocate before
the threats could be carried out.
Deloso nonetheless remained in Bacoor until two further
incidents occurred. In July 1988, he was chased by men, who
appeared to be intoxicated and who were carrying knives and
a large pipe. One man was able to punch Deloso before he
could escape. Then, in late 1988, Deloso was assaulted one
evening by unknown persons, who were supposedly sent by
the Advincula family to kill him. A group of men followed
Deloso after he finished playing basketball, apparently with
one of the youth leagues he started as part of his father’s polit-
ical campaign. The men had knives and set upon him on a
dark street corner. The friends with whom Deloso had been
playing basketball came upon the melee, and the attackers
fled. Deloso’s father, who by that time was living in the
United States, then recommended that Deloso leave Bacoor.
Deloso took his father’s advice and moved to Manila,
which is about an hour away from Bacoor and home to one
of Deloso’s sisters. In Manila, he observed that he was being
followed by one of the Advincula brothers and so was con-
stantly on the move to avoid detection; he would only bide
approximately a week at the same location. He felt that he
would “definitely” be killed if the man following him ever
found him alone. Deloso soon thereafter enlisted in the Philip-
pines Merchant Marine, in part to elude the Advinculas. He
worked in the Merchant Marine from 1989 to 1992, when he
entered the United Sates.
Although Deloso and his father were not sure who was to
blame for these incidents, they both testified that either the
Communist party or Advincula, one of Deloso’s political ene-
mies, probably was at fault.
Advincula was the head of a criminal organization that sold
drugs in the Delosos’ neighborhood. He and his sons were
10 DELOSO v. ASHCROFT
members of the Communist party, and Advincula was paid by
Communist politicians to harass and kill political opponents.
Sixto Deloso testified that Advincula also trafficked in drugs
for the benefit of the party, contributing profits from his drug
sales to Communist party coffers and supplying drugs to the
party as a lure to get youths to join.
Sixto Deloso came into conflict with Advincula while serv-
ing as the president of the Queens Row Homeowners’ Associ-
ation, a position he held from about 1981 to 1986, before
running for councilor. During his tenure, he worked to
remove delinquents and other criminals from the neighbor-
hood and in particular to check the influence of the Advincula
crime family. As part of these efforts, he was instrumental in
getting Advincula arrested for drug crimes sometime between
1981 and 1985. Advincula was never brought to trial and was
released after three weeks. Sixto Deloso believed Advincula
escaped so lightly due to his political connections.
B. Procedural Background
Deloso entered the United States in 1992. On February 17,
1994, the INS charged Deloso with deportability under
§ 241(a)(1)(B) of the INA, 8 U.S.C. § 1251(a)(1)(B). On June
20, 1994, Deloso applied for asylum and withholding of
deportation under section 208(a) of the INA, 8 U.S.C.
§ 1158(a). His claim was based upon allegations that he was
persecuted on account of his political opinion and on account
of his membership in a social group, the Deloso family.
The IJ assumed that Advincula was responsible for the inci-
dents affecting Deloso, but found that Advincula was entirely
bent on revenge for Sixto Deloso’s efforts to inform on
Advincula and therefore denied Deloso’s asylum application
because “[t]here is no persecution in this case on one of the”
protected grounds. The BIA affirmed the IJ’s decision on June
27, 2002, and granted Deloso a 30-day voluntary departure
period. Deloso filed a timely appeal on July 24, 2002.
DELOSO v. ASHCROFT 11
II.
Where, as here, the BIA adopts the IJ’s decision, we review
the IJ’s decision as if it were that of the BIA. Wang v. Ash-
croft, 341 F.3d 1015, 1020 (9th Cir. 2003). In reviewing a
decision of the BIA to deny asylum and withholding of
removal, we examine whether the decision is supported by
substantial evidence. Halaim v. INS, 358 F.3d 1128, 1131 (9th
Cir. 2004). “We must uphold [factual] findings unless the evi-
dence compels a contrary result.” Id. Because neither the IJ
nor the BIA made an explicit adverse credibility finding as to
Deloso and his father, we must also accept their testimony as
true. See Lopez, 366 F.3d at 802.
[1] To be eligible for asylum, Deloso must show that he is
unwilling or unable to return to his country of origin because
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.
§ 1101(a)(42)(A). An applicant can make this showing, and
be eligible for asylum, in two ways. First, the applicant can
show past persecution on account of a protected ground. 8
C.F.R. § 208.13(b)(1). Once past persecution is demonstrated,
then fear of future persecution is presumed, and the burden
shifts to the government to show, by a preponderance of the
evidence, that “there has been a fundamental change in cir-
cumstances such that the applicant no longer has a well-
founded fear of persecution,” or “[t]he applicant could avoid
future persecution by relocating to another part of the appli-
cant’s country.” 8 C.F.R. § 208.13(b)(1)(i) & (ii). An appli-
cant may also qualify for asylum by actually showing a well-
founded fear of future persecution, again on account of a pro-
tected ground. 8 C.F.R. § 208.13(b)(2).
[2] In order to show past persecution, Deloso must demon-
strate that an incident (1) rises to the level of persecution; (2)
is on account of one of the five statutorily protected grounds;
and (3) is committed by the government or forces the govern-
12 DELOSO v. ASHCROFT
ment is either unable or unwilling to control. Knezevic v. Ash-
croft, 367 F.3d 1206, 1211 (9th Cir. 2004). The IJ denied
Deloso’s petition because he had not established that the per-
secution alleged was on account of one of the five statutorily
protected grounds. Deloso claims that he was persecuted on
account of his political opinion. Thus he must also establish
that he held an actual or implied political opinion and his per-
secutors knew of his political opinion or imputed a political
opinion to him. See Sangha v. INS, 103 F.3d 1482, 1487-89
(9th Cir. 1997).
[3] We conclude that the IJ incorrectly determined that the
harm Deloso suffered was not at least partly “on account of”
his political opinion — an error perhaps explained by the
decision being made prior to Borja and Briones. First, Deloso
clearly established that he had a political opinion and that his
tormentors would have been aware of it. See Sangha, 103
F.3d at 1488. Deloso spoke on approximately 50 occasions
over a four- or five-month period in support of his father’s run
for councilor as a Strength of Democracy candidate and in
opposition to the Communist party. Deloso stated in his asy-
lum application that he also “consistently pointed out to the
young generation . . . the evils of [C]ommunism and why
[C]ommunism should be condemned at all cost[s].” Conse-
quently, Deloso became well-known, in his own right, as a
strong anti-Communist. At the very least, Sixto Deloso’s
political opinion was imputed to Deloso, given his efforts on
behalf of his father’s candidacy.
The question of whether the persecution alleged was on
account of this political opinion is closer. Although the exact
identity of the Delosos’ tormentors is unclear, much of the
testimony suggests that Advincula and his followers were
responsible for the death threats and other harassment of the
Deloso family, and the IJ assumed that Advincula was respon-
sible. The evidence revealed that Advincula had two possible
motives: (1) Advincula wanted revenge on Sixto Deloso
because he had told the police about Advincula’s drug activi-
DELOSO v. ASHCROFT 13
ties, and, as a result, Advincula had spent three weeks in jail;
and (2) Sixto Deloso ran for and won the office of city coun-
cilor as a member of the Strength of Democracy party on an
anti-Communist platform, and Advincula was hired to
threaten Sixto Deloso and his politically active family as a
form of political opposition.
[4] “A persecutor may have multiple motives for inflicting
harm on an asylum applicant. As long as the applicant pro-
duces evidence from which it is reasonable to believe that the
persecutor’s action was motivated, at least in part, by a pro-
tected ground, the applicant is eligible for asylum.” Hoque v.
Ashcroft, 367 F.3d 1190, 1198 (9th Cir. 2004); see also Gaf-
oor v. INS, 231 F.3d 645, 650 (9th Cir. 2000); Borja 175 F.3d
at 736; Briones, 175 F.3d at 729. An applicant need not pres-
ent direct evidence of a persecutor’s motives if there is com-
pelling circumstantial evidence. Gafoor, 231 F.3d at 650.
[5] Assuming that Advincula was behind the violent actions
and threats, as the IJ did, compelling circumstantial evidence
establishes that he acted for political reasons as well as for
revenge. First, the testimony is uncontradicted that Advincula
was a hit man for the Communist party. He and his followers
were paid by Communist politicians to harass and kill their
political opponents, including candidates from the Strength of
Democracy party to which Deloso and his father belonged.
Moreover, Advincula spent only three weeks in jail when
Sixto Deloso reported his drug trafficking; Sixto Deloso attri-
buted this short period of incarceration to Advincula’s “very
close” relationship with the Communist politicians. Therefore,
he had the motive and opportunity to attack the Delosos for
his political cronies.
[6] Obvious signs also connected the violence and threats
to the Communist party and suggested the political impetus
behind the actions. When the Deloso family store was ran-
sacked in March 1987, a Communist hammer-and-sickle
emblem was left behind. Then, in August 1987, the same
14 DELOSO v. ASHCROFT
emblem was found with the funeral garment left on the Delo-
sos’ porch as a death threat.
Moreover, Deloso also submitted affidavits from three dif-
ferent people stating that his life was threatened by the Com-
munist party because he openly denounced Communism. One
of these affidavits is from the chief of police in Deloso’s
hometown, and another is from someone who appears to be
a police captain.3 The testimony of Deloso and his father also
suggested that they were afraid of the Communists. When
asked who he was afraid of in the Philippines, Deloso testified
that he was afraid of “the [C]ommunist people, the party what
they gonna do to me.” When asked why Deloso was threat-
ened, Sixto Deloso testified that, “my son was involved in
politics, and those youth, those young guys, . . . they try to
concentrate their [speeches against] Communists, regarding
Communism.” Sixto Deloso also stated that he feared for his
son’s life if Jessie Deloso returned to the Philippines because
the Communists likely could find out about his son’s return
and continue to torment him.
[7] The timing of the violent acts and threats against the
Deloso family also indicates that they were attacked for politi-
cal reasons. Sixto Deloso reported Advincula to the police,
and Advincula was jailed for three weeks, sometime between
1981 and 1985. It was not until at least two years later, how-
ever, after Sixto Deloso had been elected as councilor, that the
attacks on the Deloso family began. Indeed, the death threats
against the Delosos were much closer in time to the assassina-
3
We recognize that document fraud from Filipino asylum applicants is
“common.” State Department, 1997 Profile of Asylum Claims and Coun-
try Conditions for the Philippines (“To support [their] claims applicants
sometimes submit statements from police or government officials assert-
ing they are unable to protect claimants, and advising them to leave the
Philippines. Venality and document fraud are common and adjudicators
should exercise case in evaluating the authenticity of such evidence.”). We
nonetheless accept these documents as authentic in the absence of any
finding to the contrary by the IJ.
DELOSO v. ASHCROFT 15
tion of Mayor Lito Miranda, who was a member of the
Strength of Democracy party. Shortly after Miranda was
killed, the Deloso family received a death threat that the fam-
ily should “beware because you’re next.” That same month,
the Delosos found on their porch the death threat involving
the funeral garb. Even the one attack that happened before
Miranda’s death seems more connected to the family’s poli-
tics than to Advincula’s desire for revenge: someone shot at
Deloso and his father and brother when they were in the car
on the way to a political meeting. Finally, both attacks on
Deloso after his parents fled the country were close in time to
his political activity on behalf of his father and in organizing
youth basketball leagues for the Strength of Democracy party
— an activity he continued after his father’s departure.
[8] In short, it is “reasonable to believe that the harm was
motivated at least in part” by Deloso’s political opinion. See
Borja, 175 F.3d at 736.4 We therefore remand to the BIA for
further consideration of Deloso’s asylum petition in light of
the foregoing analysis. See INS v. Ventura, 537 U.S. 12, 16
(2002); Knezevic, 367 F.3d at 1212.5 For the same reasons, we
also remand to the BIA Deloso’s claim for withholding of
4
Because we conclude that Deloso has established that he was harmed
at least partly on account of his political opinion, we do not reach his argu-
ment that he was persecuted on account of his membership in a particular
social group, the Deloso family.
5
Although the IJ seems to have assumed the harm suffered by Deloso
rose to the level of “persecution” and was “committed by the government
or forces the government was either unable or unwilling to control,”
Knezevic, 367 F.3d at 1211, he did not explicitly so find; therefore, we
remand the case for determination of these issues as well.
In doing so, however, we underscore the credible evidence that Deloso
was attacked on several occasions, received death threats, was followed by
the son of a political assassin who wanted to harm Deloso and the family
store was ransacked. See, e.g., Baballah v. Ashcroft, 367 F.3d 1067, 1074
(9th Cir. 2004) (“There is no question that persistent death threats and
assaults on one’s life, family, and business rise to the level of persecution
within the meaning of the [Immigration and Nationality Act].”) (internal
quotation marks omitted); Ruano v. Ashcroft, 301 F.3d 1155, 1160 (9th
16 DELOSO v. ASHCROFT
removal. See 8 C.F.R. § 208.16(b). The BIA shall determine
whether Deloso qualifies for asylum and withholding of
removal and, if appropriate, shall exercise discretion on behalf
of the Attorney General with regard to asylum.
Deloso also claims that the BIA’s application of its stream-
lining procedures at 8 C.F.R. § 3.1(a)(7), deprived him of due
process. We deny this claim as foreclosed by Falcon Carriche
v. Aschcroft, 350 F.3d 845, 850-51 (9th Cir. 2003). We deny
as moot Deloso’s motion for a stay of his voluntary departure
pending judicial review. Elian v. Ashcroft, 370 F.3d 897, 898-
99 (9th Cir. 2004).
Respondent’s petition for panel rehearing filed October 18,
2004, is DENIED. No further petitions for rehearing will be
entertained.
Petition for Review GRANTED. REMANDED.
Cir. 2002) (finding past persecution where petitioner was “closely con-
fronted and put in harm’s way on numerous occasions by men he knew
to be armed and out to get him”) (internal quotation marks omitted).
Moreover, Deloso complained about these incidents to the police who
were unable or unwilling to prevent future attacks. Indeed, at the time
Deloso left Bacoor, attacks were escalating rather than waning. See Babal-
lah, 367 F.3d at 1078 (noting that “where non-governmental actors are
responsible for persecution . . . we consider whether an applicant reported
the incidents to police, because in such cases a report of this nature may
show governmental inability to control the actors”).