Canales-Vargas v. Gonzales ( 2006 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JACQUELINE CANALES-VARGAS, 
Petitioner, No. 03-71737
v.
 Agency No.
A72-136-915
ALBERTO R. GONZALES,* Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 9, 2004**
San Francisco, California
Filed March 21, 2006
Before: Harry Pregerson, Alex Kozinski, and
Michael Daly Hawkins, Circuit Judges.
Opinion by Judge Pregerson;
Dissent by Judge Kozinski
*Alberto Gonzales is substituted for his predecessor, John Ashcroft, as
Attorney General of the United States. See Fed. R. App. P. 43(c)(2).
**This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
2947
CANALES-VARGAS v. GONZALES 2951
COUNSEL
Rhoda Wilkinson Domingo, San Francisco, California, for the
petitioner.
Victor M. Lawrence, Office of Immigration Litigation, U.S.
Dept. of Justice, Civil Division, Washington, D.C., for the
respondent.
OPINION
PREGERSON, Circuit Judge:
An Immigration Judge (“IJ”) denied Petitioner Jacqueline
Canales-Vargas’ applications for suspension of deportation,
asylum, and withholding of deportation. The Board of Immi-
gration Appeals (“BIA”) affirmed without opinion. We have
jurisdiction under 8 U.S.C. § 1252. For the reasons set forth
below, we grant Canales-Vargas’s petition in part and remand
to the BIA for further proceedings.
BACKGROUND1
1
Our recitation of the facts is derived largely from Canales-Vargas’s tes-
timony. Because the IJ did not make an adverse credibility determination
against Canales-Vargas, her testimony must be taken as true. See Navas
v. INS, 217 F.3d 646, 652 n.3 (9th Cir. 2004) (“Where the BIA does not
make an explicit adverse credibility finding, we must assume that the
applicant’s factual contentions are true.”).
2952 CANALES-VARGAS v. GONZALES
Canales-Vargas is a native and citizen of Peru. She first
entered the United States in 1986 and stayed until May 1989,
when she then returned to Peru. She reentered the United
States in December 1990. She claims that in April 1990, while
she was in Peru, she attended a political rally where she gave
a speech denouncing the terrorist group Sendero Luminoso
(the “Shining Path”). After the rally, she began receiving
threatening notes and phone calls of escalating severity,
including some that threatened her with death if she did not
leave Peru.
Specifically, beginning two or three weeks after she spoke
at the political rally in April 1990, Canales-Vargas received
five or six threatening notes and various threatening phone
calls. The last threatening phone call came just before she left
Peru in November 1990. In addition to threats to harm only
her, Canales-Vargas also received a note threatening to place
a bomb in her house and kill her family if she failed to leave
Peru. According to Canales-Vargas, the letters and phone
calls became more aggressive and menacing over time. Origi-
nally, the threats told her to “shut up” and “not to speak about
things [she] did not know about.” Eventually, however, the
letters and phone calls threatened her and her family with
death if she did not leave Peru.2 The IJ concluded that
Canales-Vargas was statutorily ineligible for suspension of
deportation because she lacked continuous physical presence
2
Canales-Vargas also claims in her opening brief that she was shot four
times by members of the Shining Path. As both the Government and our
dissenting colleague properly note, see Dissent at 2964 n.1, these facts are
not in the record and appear to be a vestige from a different immigration
case that Canales-Vargas’ attorney cut-and-pasted into the brief in this
case. Of course, we do not hold the sloppiness of Canales-Vargas’ attor-
ney against Canales-Vargas herself. Cf. Escobar-Grijalva v. INS, 206 F.3d
1331, 1335 (9th Cir. 2000) (“The administrative record in this case . . . .
gives a picture of attorneys shuffling cases and clients, imposing on immi-
gration judges and on hapless petitioners alike. There is a need to clean
house, to get rid of those who prey on the ignorant. The starting point is
not to make the helpless the victims.”).
CANALES-VARGAS v. GONZALES 2953
in the United States. The IJ also concluded that Canales-
Vargas was not entitled to asylum or withholding of deporta-
tion because she failed to establish that she suffered past per-
secution or faced any threat of future persecution if returned
to Peru. The BIA affirmed the IJ’s decision without opinion.
Canales-Vargas petitions for review of her final order of
removal.
STANDARD OF REVIEW
Because administrative proceedings commenced before
April 1, 1997, and the final administrative order was issued
after October 30, 1996, the transitional rules of the Illegal
Immigration Reform and Immigrant Responsibility Act of
1996 (“IIRIRA”), Pub. L. No. 104-208, 110 Stat. 3009-546
(1996), apply to this case. See Kalaw v. INS, 133 F.3d 1147,
1150 (9th Cir. 1997). Where, as here, the BIA affirms the
decision of the IJ without opinion, we review the decision of
the IJ as the final agency decision. See Falcon Carriche v.
Ashcroft, 350 F.3d 845, 849 (9th Cir. 2003). We review the
BIA’s decision that Petitioner has not established entitlement
to suspension of deportation or eligibility for asylum or with-
holding of deportation for substantial evidence. See Lopez-
Alvarado v. Ashcroft, 381 F.3d 847, 850-51 (9th Cir. 2004);
Wang v. Ashcroft, 341 F.3d 1015, 1019-20 (9th Cir. 2003).
DISCUSSION
I. Suspension of Deportation
[1] To qualify for suspension of deportation under
IIRIRA’s transitional rules, Canales-Vargas must have been
in the United States continuously for seven (7) years before
being served with an Order to Show Cause (“OSC”) as to why
she should not be deported. See Lopez-Urenda v. Ashcroft,
345 F.3d 788, 791-792 (9th Cir. 2003) (applying the pre-
IIRIRA seven-year continuous presence requirement to transi-
tional rules cases); Jimenez-Angeles v. Ashcroft, 291 F.3d
2954 CANALES-VARGAS v. GONZALES
594, 598 (9th Cir. 2002) (applying IIRIRA’s “stop-clock”
provision, which ends an alien’s period of continuous pres-
ence upon being served an OSC, to transitional rules cases).
An applicant will fail to maintain continuous physical pres-
ence if she “has departed from the United States for any
period in excess of 90 days or for any periods in the aggregate
exceeding 180 days.” 8 U.S.C. § 1229b(d)(2); see also Lagan-
daon v. Ashcroft, 383 F.3d 983, 986 n.1 (9th Cir. 2004) (not-
ing that a twenty-day absence did not interrupt petitioner’s
period of continuous physical presence).
[2] Here, Canales-Vargas was served with an OSC on
November 9, 1993. Thus, to qualify for suspension of depor-
tation, Canales-Vargas must have been in the United States
continuously since November 9, 1986. Canales-Vargas does
not satisfy the seven-year continuous presence requirement,
however, because she admits that she took an eighteen-
month-long trip to Peru from May 1989 to December 1990.3
Accordingly, Canales-Vargas is ineligible for suspension of
deportation.
3
The IJ denied Canales-Vargas’ suspension application by applying the
pre-IIRIRA rule that “brief, casual, and innocent” departures are exempted
from the seven-year continuous presence requirement. See Aguilera-
Medina v. INS, 137 F.3d 1401, 1402 (9th Cir. 1998) (citing Rosenberg v.
Fleuti, 374 U.S. 449 (1963)). The 90/180 rule that we apply today
replaced the “brief, casual, and innocent” standard for determining when
a departure breaks continuous physical presence, see Mendiola-Sanchez v.
Ashcroft, 381 F.3d 937, 939 (9th Cir. 2004), and we have reluctantly con-
cluded that the 90/180 rule is not impermissibly retroactive when applied
to petitioners — like Canales-Vargas — who left the country for more
than 90 days before IIRIRA’s passage, see id. at 941 (“[W]e pause in rec-
ognition of the injustice of this result.”); see also Garcia-Ramirez v. Gon-
zales, 423 F.3d 935, 941 (9th Cir. 2005) (Fisher, J., concurring)
(“reluctantly” applying 90/180 rule).
CANALES-VARGAS v. GONZALES 2955
II. Asylum
A. Applicable Legal Standard
[3] To be eligible for asylum, Canales-Vargas must estab-
lish that she is a refugee — namely, that she is a person
unable or unwilling to return to Peru “because of persecution
or a well-founded fear of persecution on account of race, reli-
gion, nationality, membership in a particular social group, or
political opinion.” Sael v. Ashcroft, 386 F.3d 922, 924 (9th
Cir. 2004); 8 U.S.C. § 1101(a)(42)(A). The source of the per-
secution must be the government or forces that the govern-
ment is unwilling or unable to control. See Mashiri v.
Ashcroft, 383 F.3d 1112, 1119 (9th Cir. 2004).
[4] To be “well-founded,” an asylum applicant’s “fear of
persecution must be both subjectively genuine and objectively
reasonable.” Sael, 386 F.3d at 924. “An applicant ‘satisfies
the subjective component by credibly testifying that she genu-
inely fears persecution.’ ” Id. (quoting Mgoian v. INS, 184
F.3d 1029, 1035 (9th Cir. 1999)). An asylum applicant “gen-
erally satisfies the objective component in one of two ways:
either by establishing that she has suffered persecution in the
past or by showing that she has a good reason to fear future
persecution.” Id. (quoting Mgoian, 184 F.3d at 1035). While
a well-founded fear must be objectively reasonable, it “does
not require certainty of persecution or even a probability of
persecution.” Hoxha v. Ashcroft, 319 F.3d 1179, 1184 (9th
Cir. 2003). “Even a ten percent chance that the applicant will
be persecuted in the future is enough to establish a well-
founded fear.” Sael, 386 F.3d at 925 (quoting Knezevic v.
Ashcroft, 367 F.3d 1206, 1212 (9th Cir. 2004)).
B. Analysis
1. Past Persecution
[5] Canales-Vargas may demonstrate past persecution on
account of a political opinion with evidence that (1) she has
2956 CANALES-VARGAS v. GONZALES
been a victim of persecution; (2) she holds a political opinion;
(3) her political opinion was known to her persecutors; and
(4) the persecution has been on account of her political opin-
ion. See Gonzales-Neyra, 122 F.3d 1293, 1296 (9th Cir. 1997)
(citing Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997)).
Proof of past persecution gives rise to a presumption of a
well-founded fear of future persecution and shifts the eviden-
tiary burden to the government to rebut that presumption. See,
e.g., Popova v. INS, 273 F.3d 1251, 1259 (9th Cir. 2001).
[6] “In asylum and withholding of deportation cases, we
have consistently held that death threats alone can constitute
persecution.” Navas, 217 F.3d at 658; see also, e.g., Mashiri
v. Ashcroft, 383 F.3d 1112, 1119 (9th Cir. 2004); Siong v.
INS, 376 F.3d 1030, 1039 (9th Cir. 2004); Khup v. Ashcroft,
376 F.3d 898, 903 (9th Cir. 2004) (quoting Navas, 217 F.3d
at 658); Njuguna v. Ashcroft, 374 F.3d 765, 770 (9th Cir.
2004); Rios v. Ashcroft, 287 F.3d 895, 900 (9th Cir. 2002);
Lim v. INS, 224 F.3d 929, 935 (9th Cir. 2000); Del Carmen
Molina v. INS, 170 F.3d 1247, 1249 (9th Cir. 1999); Briones
v. INS, 175 F.3d 727, 729 (9th Cir. 1999); Garrovillas v. INS,
156 F.3d 1010, 1016 (9th Cir. 1998); Gonzales-Neyra, 122
F.3d at 1296; Gonzalez v. INS, 82 F.3d 903, 909-10 (9th Cir.
1996); Gomez-Saballos v. INS, 79 F.3d 912, 916 (9th Cir.
1996); Aguilera-Cota v. INS, 914 F.2d 1375, 1383-84 (9th
Cir. 1990).
Arguably, Canales-Vargas’s credible testimony did not
establish that the threats that she received “inflict[ed] suffi-
cient suffering or harm to compel a finding of past persecu-
tion.” Lim, 224 F.3d at 936 (internal quotation marks
omitted). But Canales-Vargas argues that the notes and calls,
in and of themselves, constitute persecution. While Navas
tells us that death threats alone can be persecution, it does not
specify if all threats — based on a protected ground — are
sufficient to establish persecution. Navas, 217 F.3d at 658.
[7] In Navas, the petitioner presented suffering in excess of
mere threats. See id. (“[Navas’s] case involves considerably
CANALES-VARGAS v. GONZALES 2957
more; here, Navas was not only threatened with death, but
two members of his family were murdered, he was shot at,
and his mother beaten.”). In contrast to the petitioner in
Navas, Canales-Vargas received written and telephone threats
that were never carried out. The record indicates that the
Shining Path neither confronted Canales-Vargas nor physi-
cally harmed her. For these reasons, among others, the IJ
found that Canales-Vargas did not suffer past persecution. We
uphold the IJ’s finding because the evidence does not compel
a contrary result. See Monjaraz-Munoz v. INS, 327 F.3d 892,
895 (9th Cir. 2003).
2. Future Persecution
[8] Although Canales-Vargas cannot demonstrate past per-
secution, she may be eligible for asylum relief if she can
prove a fear of future persecution. To demonstrate a fear of
future persecution on account of a political opinion, Canales-
Vargas must show that (1) she holds a political opinion; (2)
her political opinion is known to her persecutors; and (3) the
persecution will be on account of her political opinion. See
Gonzales-Neyra, 122 F.3d at 1296.
[9] Canales-Vargas satisfies the first and second Gonzales-
Neyra requirements because the death threats she received
were a direct consequence of the speeches she made at a polit-
ical rally in April 1990. It is obvious to us that she holds a
political opinion and that her persecutors are aware of her
opinion. Our dissenting colleague makes much of the fact that
the death threats received by Canales-Vargas were anony-
mous. See Dissent at 2962-64. Critically, however, our case
law does not require a victim of past persecution or an appli-
cant fearing future persecution to marshal direct evidence of
her persecutor’s (or would-be persecutor’s) identity or the
precise reason why she has been (or would be) a target of per-
secution. It is true that, in some cases, “isolated . . . acts per-
petrated by anonymous [individuals or groups] do not
establish [past] persecution” and will not establish a well-
2958 CANALES-VARGAS v. GONZALES
founded fear of future persecution. Gormley v. Ashcroft, 364
F.3d 1172, 1177 (9th Cir. 2004) (citing Rostomian v. INS, 210
F.3d 1088, 1089 (9th Cir. 2000)). But in other cases, “the fac-
tual circumstances alone” may constitute sufficient circum-
stantial evidence of a persecutor’s identity or motives. Navas,
217 F.3d at 657; see also Deloso v. Ashcroft, 393 F.3d 858,
865-66 (9th Cir. 2005) (holding that circumstantial evidence
of motive may include, inter alia, the timing of the persecu-
tion and signs or emblems left at the site of persecution). We
find that the timing of the threats received by Canales-Vargas,
which began two or three weeks after the April 1990 political
rally at which she publicly criticized the Shining Path, are suf-
ficient circumstantial evidence that the Shining Path was
responsible for the threats and that its motive was to retaliate
against Canales-Vargas for publicly criticizing it.4
[10] To satisfy the third requirement, Canales-Vargas testi-
fied that she received notes and phone calls of escalating
severity which eventually threatened her and her family with
death if she did not relinquish her political opinion and leave
Peru. These threats, made by a recognized terrorist organiza-
tion, create at least a one-in-ten chance that Canales-Vargas
would be severely harmed — if not, killed — if the Shining
Path discovered that she had returned to Peru.5 See Sael, 386
F.3d at 925.
4
Moreover, an applicant will be entitled to asylum if “there is a pattern
or practice in his or her country . . . of persecution of a group of persons
similarly situated to the applicant on account of . . . political opinion.” 8
C.F.R. § 1208.13(b)(2)(iii)(A). As our dissenting colleague properly notes,
the Shining Path is “ruthlessly efficient” at persecuting its political oppo-
nents when it wants to do so. Dissent at 2965.
5
The Government concedes that the Shining Path remains “a terrorist
group involved in numerous human rights abuses.” In light of the wealth
of evidence in the record that this is the case, the Government would be
hard pressed to contend otherwise. For example, on April 29, 1994, the
Latin America Institute of the University of New Mexico wrote that
“[g]uerrillas from Sendero Luminoso [Shining Path] have staged a series
of ambushes against the military, plus bloody attacks against civilians in
CANALES-VARGAS v. GONZALES 2959
The IJ gave two reasons as to why he believed that
Canales-Vargas’ fear of future persecution was not well
founded.6 First, the IJ found that during the seven months that
Canales-Vargas remained in Peru, “certainly, the Shining Path
could have reached her and punished her . . . . [but t]hey did
not do anything.” It is true that the Shining Path did not per-
sonally confront or physically harm Canales-Vargas in the
seven months that she remained in Peru. But over that period
of time, the threats that she received increased in severity, and
she left Peru for the United States promptly after receiving the
last threatening phone call in November 1990. We do not
fault Canales-Vargas for remaining in Peru until the quantity
recent weeks.” U.N.M. Latin Am. Inst., Peruvian Military Continues
Offensive Against Sendero Luminoso Amid Growing Charges of Human
Rights Abuses, NOTISUR-LATIN AM. POL. AFF. (April 29, 1994), available
at http://ssdc.ucsd.edu/news/notisur/h94/notisur.19940429.html. Accord-
ing to David Montoya, a terrorism expert at the Center for Development
Studies, a prestigious Lima-based think tank, the Shining Path is present
in fifteen of Peru’s twenty-four provinces. Allen Scrutton, Left for Dead,
Peru’s Rebels Regroup, S.F. CHRON., Aug. 14, 1995, at A6. A March 1995
State Department report noted that the “Sendero Luminoso continued to
assassinate civilians, including peasants, farmers, villagers, indigenous
people, civil authorities and public servants . . . .” 1995 U.S. Dep’t of
State, Peru: Country Reports on Human Rights Practices: 1994 (Mar.
1995). The same report says that “[t]here are credible accounts that
Sendero tortured people to death by means such as slitting throats, stran-
gulation, stoning, and burning. In August Sendero sympathizers tortured
four people they accused of cooperating with the police . . . for 3 days
before killing them.” Id.
6
Our dissenting colleague lauds the IJ’s “carefully considered . . .
thoughtful and well-reasoned opinion.” Dissent at 2964; see also id. at
2968 (“The IJ closely reviewed the record . . . .”). But that does not neces-
sarily mean that substantial evidence, when viewed through the proper
lens, will support an IJ’s decision. In political opinion cases like this, the
asylum applicant must show that he or she “faces the prospect of . . . per-
secution[ ] because of [his or her] political opinion.” Navas, 217 F.3d at
656 (emphasis in original); see also Njuguna, 374 F.3d at 770 (“He must
establish that the political opinion would motivate his potential persecu-
tors.”). Canales-Vargas’ testimony about the notes and phone calls she
received easily satisfy this requirement.
2960 CANALES-VARGAS v. GONZALES
and severity of the threats that she received eclipsed her
breaking-point. Indeed, our precedents tell us that we cannot.
See, e.g., Gonzalez v. INS, 82 F.3d 903, 909 (9th Cir. 1996)
(noting that there is no “rule that if the departure was a con-
siderable time after the first threat, then the fear was not genu-
ine or well founded”); Damaize-Job v. INS, 787 F.2d 1332,
1336 (9th Cir. 1986) (two-year stay in Nicaragua after release
from persecutors’ custody not determinative).
The IJ also found that “it is quite remote and quite unlikely
that, given the fact that [Canales-Vargas] has been away from
Peru for approximately six years, actually, more than six
years, that the Shining Path would be interested in her at this
point in time.” Our dissenting colleague echoes this concern
by stressing that, now, after this case has percolated up from
the IJ to the BIA and to this court, “the threats in this case are
almost fifteen years old.” Dissent at 2966. Certainly, the age
of the threats that Canales-Vargas received are relevant to our
evaluation of the reasonableness of Canales-Vargas’ fear. And
if we were required to find a “certainty of persecution or even
a probability of persecution,” Hoxha, 319 F.3d at 1184, our
conclusion might be different. But when evaluating an asylum
applicant’s future persecution claim, as we do here, we apply
a much lower standard, which requires us to find only a “ten
percent chance that the applicant will be persecuted in the
future.” Sael, 386 F.3d at 925. In light of the Shining Path’s
“ruthless[ ] efficien[cy]” in persecuting its political opponents
— to borrow our dissenting colleague’s words, Dissent at
2965 — we have no trouble concluding that Canales-Vargas
satisfies this low standard. See Cardenas v. INS, 294 F.3d
1062, 1064, 1067 (9th Cir. 2002) (finding well-founded fear
based on nine year-old Shining Path threats).
[11] In sum, reversal of the IJ’s denial of Canales-Vargas’s
asylum application is warranted because “the evidence would
compel any reasonable factfinder to conclude that the requi-
site fear of persecution has been shown.” Navas, 217 F.3d at
657; see also Kahssai v. INS, 16 F.3d 323, 329 (9th Cir. 1994)
CANALES-VARGAS v. GONZALES 2961
(per curiam) (Reinhardt, J., concurring) (“The fact that [peti-
tioner] did not suffer physical harm is not determinative of her
claim of persecution: there are other equally serious forms of
injury that result from persecution.”).
III. Withholding of Deportation
A. Applicable Legal Standard
[12] An applicant is entitled to withholding of deportation
if he or she can establish a “clear probability,” INS v.
Cardoza-Fonseca, 480 U.S. 421, 430 (1987), that his or her
“life or freedom would be threatened” upon return because of
his or her “race, religion, nationality, membership in a partic-
ular social group, or political opinion,” 8 U.S.C.
§ 1231(b)(3)(A); see also Thomas v. Gonzales, 409 F.3d
1177, 1182 (9th Cir. 2005) (en banc). This “clear probability”
standard, interpreted as meaning “more likely than not,” is
more stringent than asylum’s “well-founded fear” standard
because withholding of deportation is a mandatory form of
relief. Navas, 217 F.3d at 655. A petitioner who establishes
eligibility for asylum raises a presumption of entitlement to
withholding of deportation. See Salazar-Paucar v. INS, 281
F.3d 1069, 1077 (9th Cir.), amended by 290 F.3d 964 (9th
Cir. 2002); see also Cardoza-Fonseca, 480 U.S. at 430; INS
v. Stevic, 467 U.S. 407, 424 (1984).
B. Analysis
[13] While Canales-Vargas’s testimony “compel[s] any
reasonable factfinder to conclude” that she faces at least a ten
percent chance of future persecution, her testimony does not
establish that it is “more likely than not” that she will suffer
future persecution. Navas, 217 F.3d at 655, 657. That is,
although Canales-Vargas has demonstrated a well-founded
fear of future persecution, she has not shown that she faces a
“clear probability” of persecution if removed. Id. at 655. The
non-confrontational threats that Canales-Vargas received
2962 CANALES-VARGAS v. GONZALES
almost thirteen years ago establish a ten-percent possibility of
future persecution but not the clear probability of it. Without
proving a clear probability of persecution, and lacking suffi-
cient evidence of past persecution, Canales-Vargas is not enti-
tled to withholding of deportation. Thus, we affirm the IJ’s
conclusion that Canales-Vargas is not entitled to withholding
of deportation.
CONCLUSION
For the reasons set forth above, we grant the petition for
review in part and find that Canales-Vargas has established a
well-founded fear of future persecution and is therefore eligi-
ble for asylum. However, we deny the petition for review of
the IJ’s denial of withholding of deportation, as we do not
consider the evidence strong enough to meet the higher stan-
dard for that form of relief. We also find that Canales-Vargas
has failed to meet the “continuous presence” element required
for suspension of deportation.
PETITION GRANTED IN PART and REMANDED.
KOZINSKI, Circuit Judge, dissenting:
We have never before held that anonymous death threats,
without a scintilla of corroborating harassment, compel a
finding that an asylum seeker’s fear of persecution is well
founded, and I cannot join the majority in interfering, yet
again, with the ability of Immigration Judges to do their jobs.
Petitioner doesn’t allege she endured any harassment other
than anonymous threats—not beatings, not detention, not
face-to-face confrontation—to support her claim that she will
be persecuted if she returns to Peru. The majority nevertheless
holds not merely that a reasonable factfinder could have
determined that Canales-Vargas has a well-founded fear of
future persecution, but that a reasonable factfinder would be
CANALES-VARGAS v. GONZALES 2963
required to so find. See INS v. Elias-Zacarias, 502 U.S. 478,
481 & n.1 (1992). This conclusion contravenes both Supreme
Court and circuit precedent requiring deference to the admin-
istrative agency.
The majority concedes, as it must, that the handful of anon-
ymous threats petitioner received doesn’t amount to past per-
secution. See maj. at 2955-56. So our cases holding that
“death threats alone can constitute persecution,” Navas v.
INS, 217 F.3d 646, 658 (9th Cir. 2000), are entirely beside the
point. Navas stands for the unremarkable proposition that the
harm inflicted by living under threat of death can sometimes
be severe enough to constitute persecution. The majority thus
correctly notes that “[t]he fact that [petitioner] did not suffer
physical harm is not determinative of her claim of persecu-
tion.” Maj. at 2961 (second alteration in original) (quoting
Kahssai v. INS, 16 F.3d 323, 329 (9th Cir. 1994) (per curiam)
(Reinhardt, J., concurring)). And it cites other cases stating
that death threats alone can constitute persecution. See, e.g.,
Khup v. Ashcroft, 376 F.3d 898, 903 (9th Cir. 2004); Rios v.
Ashcroft, 287 F.3d 895, 900 (9th Cir. 2002). But all of these
authorities are irrelevant once the majority holds, as it must,
that petitioner hasn’t been persecuted.
The only remaining question is whether petitioner, who
was not persecuted in the past, nevertheless has a well-
founded fear of future persecution. Since the IJ found that she
had no well-founded fear, our role is a limited one: to exam-
ine the record and decide whether it compels the conclusion
that the IJ erred in this regard. See Elias-Zacarias, 502 U.S.
at 481. And what does the record show? Over fifteen years
ago, petitioner spoke out against the Shining Path in a five-to-
ten minute speech before a crowd of 250 people. A few weeks
later, an anonymous letter appeared under her door, warning
her to keep her mouth shut. Over the next seven months, the
harassment escalated—four or five more letters followed,
along with a number of threatening telephone calls. The most
menacing threatened to place a bomb in petitioner’s home and
2964 CANALES-VARGAS v. GONZALES
kill her family. The letters and callers never claimed to be
associated with the Shining Path, so petitioner can’t be sure
who made the threats.1 Throughout that period, the threats
never materialized—petitioner was never injured in any way,
or even confronted face to face, before she left for the United
States.
The Immigration Judge (IJ) carefully considered this evi-
dence, and rendered a thoughtful and well-reasoned opinion.2
The IJ gave two reasons that petitioner’s fear of future perse-
cution was not well founded: First, during the seven months
that she remained in Peru, “[c]ertainly, the Shining Path could
have reached her and punished her if they thought that’s what
they wanted, for her failure to leave promptly. They did not
do anything.” Second, “it is quite remote and quite unlikely
that, given the fact that she has been away from Peru for
approximately six years, actually, more than six years, that the
Shining Path would be interested in her at this point in time.”
The majority rejects the IJ’s reasons, and holds that “[t]hese
threats, made by a recognized terrorist organization, create at
least a one-in-ten chance that Canales-Vargas would be
severely harmed — if not, killed — if the Shining Path dis-
covered that she had returned to Peru.” Maj. at 2958. The
majority’s opinion can only be read to announce a per se rule
that any death threat from a group capable of carrying through
on it requires a finding that the petitioner’s fear of persecution
is well founded. The majority’s only authority for this dubious
proposition is Sael v. Ashcroft, 386 F.3d 922, 925 (9th Cir.
2004), which said nothing of the sort. Sael endured a lot more
1
Petitioner claims in her opening brief that she was shot four times by
Shining Path terrorists in Peru and that she identified her assailant. Were
these claims true, this would be a very different case. But as the govern-
ment noted in its brief, these facts are nowhere to be found in the record,
and probably come from a different case entirely.
2
Although he expressed some doubt as to petitioner’s credibility, he
made no express adverse credibility finding, so we accept her testimony
as true. See Kalubi v. Ashcroft, 364 F.3d 1134, 1137-38 (9th Cir. 2004).
CANALES-VARGAS v. GONZALES 2965
than threats to cause her to fear persecution: Her car tires
were slashed, her house was stoned, and a mob attempted to
break into her house. See id. at 927.
We have never held that anonymous threats, without more,
compel a finding that a fear is well founded. We have always
required the petitioner to demonstrate some corroborating
facts in addition to the threats to show that the threats should
be taken seriously. For example, in Marcos v. Gonzales, 410
F.3d 1112 (9th Cir. 2005), the petitioner joined a network of
amateur radio operators who reported guerilla group activity
to the Philippine Army. Id. at 1115-16. For several years, he
received ten death threats a month over the radio, and tele-
phone death threats three to five times daily at his house. Id.
at 1116. In addition, guerillas confronted him in person and
repeated the threats both at his house and at his office. Id. The
police took these threats seriously enough to provide him spe-
cial protection at work. Id. And in other threat cases, the
threats were also backed up by in-person confrontation, or
worse. See, e.g., Kaiser v. Ashcroft, 390 F.3d 653, 658 (9th
Cir. 2004) (family members followed by death squad); Siong
v. INS, 376 F.3d 1030, 1039 (9th Cir. 2004) (attacks on four
friends).
Had the majority analyzed the facts of Canales-Vargas’s
case under our caselaw, it would have been compelled to
affirm for the two reasons the IJ gave. First, the IJ noted that
“if the Shining Path really intended to harm her or her family,
they had plenty of time to do that.” As the majority empha-
sizes, when the Shining Path wants to persecute political
opponents, it is ruthlessly efficient at doing so. See maj. at
2958-59 n.5. But by petitioner’s own testimony, we know that
the rebels knew who she was and where she lived, yet they
never bothered to confront her directly, much less attempt to
act on their threats.
The majority nevertheless rejects the IJ’s reasoning, noting
that the threats increased in severity over time and that peti-
2966 CANALES-VARGAS v. GONZALES
tioner left Peru promptly after the last one. Neither observa-
tion undermines the IJ’s reasoning. The majority also cites
two cases, Gonazalez v. INS, 82 F.3d 903, 909 (9th Cir.
1996), and Damaize-Job v. INS, 787 F.2d 1332, 1336 (9th
Cir. 1986), for the proposition that a quiet period during
which the persecutors don’t act on their threats isn’t determi-
native. It’s true that the fact “that none of the threats against
Petitioners have yet to be carried out does not render their fear
unreasonable.” Kaiser, 390 F.3d at 658. Otherwise, death
threats could never support a future persecution finding.
“What matters is whether the group making the threat has the
will or the ability to carry it out.” Bolanos-Hernandez v. INS,
767 F.2d 1277, 1285 (9th Cir. 1985). Under Lim v. INS, 224
F.3d 929 (9th Cir. 2000), a period where rebels don’t make
good on their threats is “relevant,” see id. at 935, because a
lengthy period without harm suggests that the terrorists didn’t
have the will to carry through with their threats.
In the two cases that the majority cites, there wasn’t any
doubt that the government was willing to make good on its
threats: In Damaize-Job, the government threatened petitioner
with death after imprisoning and torturing him for three
months. Petitioner’s uncle and sister had disappeared, likely
murdered by the government. See Damaize-Job, 787 F.2d at
1334. Likewise, in Gonzalez, government soldiers personally
threatened the petitioner, and her family members were
imprisoned and beaten. See Gonzalez, 82 F.3d at 906. But
Canales-Vargas can’t point to anything in the record, much
less physical violence, corroborating willingness and ability to
carry out the threats.
This is reason enough to deny the petition, but the IJ gave
us more: The threats in this case are almost fifteen years old.
The older threats get, the more likely it is that the persecutors
have moved on to other targets. For example, in Prasad v.
INS, 47 F.3d 336 (9th Cir. 1995), we found the petitioner’s
fear of persecution wasn’t well founded in part because there
was no evidence that the government had any continuing
CANALES-VARGAS v. GONZALES 2967
interest in him. Id. at 339; see also Useinovic v. INS, 313 F.3d
1025, 1032-33 (7th Cir. 2002) (noting that petitioner “did not
suffer severe consequences for his actions at the time he
acted, and the passage of time since these activities only less-
ened the likelihood he would face any persecution”). Nor is
there any evidence that, as in other Shining Path cases, see,
e.g., Gonzales-Neyra v. INS, 122 F.3d 1293, 1295 (9th Cir.
1997), the guerillas have attempted to keep track of petition-
er’s whereabouts after she left Peru.
The majority concedes that “the age of the threats that
Canales-Vargas received are relevant to our evaluation of the
reasonableness of Canales-Vargas’ fear.” Maj. at 2960. And
then it concedes that the age of the threats may bring the like-
lihood that Canales-Vargas will be persecuted below fifty per-
cent. Id. But it can’t quite bring itself to admit that the age of
the threats would allow a reasonable IJ to conclude that the
likelihood of future persecution is below ten percent. The
majority doesn’t explain why not. Instead, it cites to Cardenas
v. INS, 294 F.3d 1062, 1064, 1067 (9th Cir. 2002), where we
found a well-founded fear based on threats from the Shining
Path that were nine years old. But in Cardenas, the Shining
Path suspected the petitioner of informing the government
about its activities, in part because his brother was a police-
man. The Shining Path responded by painting threats in public
view on Cardenas’s house. The petitioner, scared for his life,
agreed to help the Shining Path smuggle supplies, but he
reneged on the deal. Shining Path members were angry
enough to track him and his family throughout the country,
threatening them again after they moved from their hometown
in Lima to a smaller town, and still again when they returned
to Lima six months later. We concluded that the Shining
Path’s interest in Cardenas was so strong that it was unlikely
to have waned over time. There’s nothing like that here—no
public threats, no anger at broken deals, no stalking in another
Peruvian city. It wasn’t unreasonable for the IJ to look at the
evidence and conclude that lo these many years later, the
Shining Path is likely to have moved on to other targets.
2968 CANALES-VARGAS v. GONZALES
When we review an IJ’s findings, our job is to examine the
facts in light of the IJ’s reasoning and determine whether it is
supported by substantial evidence. The majority has substi-
tuted its own judgment for the IJ’s, and announced that
ancient death threats compel a finding that a petitioner’s fear
of persecution is well founded today. This approach finds no
support in our caselaw. The IJ closely reviewed the record,
and gave reasons for his decision that are supported by sub-
stantial evidence. We must affirm.