Esther Josephine Bunuan Agbuya v. Immigration and Naturalization Service ( 2001 )

Opinion by Judge BETTY B. FLETCHER; Dissenting Opinion by Judge CYNTHIA HOLCOMB HALL.

ORDER AND AMENDED OPINION AND DISSENT

BETTY B. FLETCHER, Circuit Judge:

ORDER

The opinion filed July 18, 2000 and published at 219 F.3d 962 (9th Cir.2000) is amended as follows:

1. On page 966, just before the subheading, “B. Analysis,” insert the following:

We review the BIA’s factual findings under the substantial evidence standard. The findings must be supported by reasonable, substantial, and probative evidence on the record considered as a whole. 8 U.S.C. § 1105(a)(4); INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Reversal should occur where the evidence is such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed. See Yazitchian v. INS, 207 F.3d 1164, 1168 (9th Cir.2000).

2. On page 966, in the paragraph beginning “We disagree.”, change the sentence beginning “The evidence shows that the communist NPA” to read: A reasonable factfinder would have to conclude that the communist NPA interpreted Agbuya’s actions as an affront to their cause:

3. On page 967, at the end of the paragraph beginning “The dissent argues,” replace the sentence that reads, “As such, she is entitled to political refugee status.” with the following sentences: The BIA erred because its determination was not supported by reasonable, substantial, and probative evidence on the record considered as a whole. Agbuya is entitled to political refugee status.

With these amendments made, a majority of the panel has voted to deny the petition for rehearing and petition for rehearing en banc. Judge Hall voted to grant the petition for rehearing and petition for rehearing en banc.

The full court received the petition for rehearing en banc. An active judge called for an en banc vote, and a majority of the active judges of the court, advised of the within amendments, has voted to deny the petition for rehearing en banc. Fed. R.App. P. 35(b).

The petition for rehearing and petition for rehearing en banc are DENIED.

OPINION

Esther Josephine Bunuan Agbuya, a citizen of the Philippines, petitions for review of the Board of Immigration Appeals’ (BIA) dismissal of her appeal from an Immigration Judge’s (IJ) denial of her application for asylum and withholding of deportation pursuant to 8 U.S.C. §§ 1158(a) and 1253(h). Agbuya argues that she has a well-founded fear that the New People’s Army (NPA) will persecute her if she returns to the Philippines, and that such persecution will be “on account of’ her political opposition to the NPA’s communist cause. We have jurisdiction to entertain a petition for review of the BIA’s decision pursuant to section 106(a) of the Immigration and Nationality Act (INA), 8 U.S.C. § llOSala).¹ We grant the petition for review, find petitioner eligible for asylum and grant her application for withholding of deportation.

I.

Esther Agbuya lived in northern Luzon, the Philippines, and had worked since 1980 for the Benguet Mining Company in the personnel department. She was responsible for terminating employees or notifying individuals that they were being disciplined for various infractions and employment-related difficulties. From 1985-1991, the company implemented a series of retrenchments. During this period, Ag-buya had serious problems with the union of miners, who disagreed with the retrenchment policy and the order in which workers were being dismissed. On one occasion, the miners rallied against her, displaying signs that called for her firing. Agbuya learned that the union had been infiltrated by members of the New People’s Army (“NPA”), an armed communist guerilla group responsible for numerous deaths and kidnappings. She began to receive telephone calls demanding her resignation and threatening her family if she failed to comply. Afraid of retaliation by the NPA, she resigned on July 12, 1991.

On September 1, 1991, almost two months after her resignation, Agbuya was waiting for her husband to pick her up in Baguio City, fourteen kilometers from the mine, when she was abducted by three heavy-set men whom she did not know. They forced her into a car and drove her to a house over an hour away. They held her captive for one week, keeping her blindfolded the entire time and subjecting her to physical abuse. On one occasion, they placed a gun in her mouth. During the course of her captivity, Agbuya’s kidnappers identified themselves as NPA members sympathetic to the plight of the Benguet miners. The NPA kidnappers told her they would try her in a kangaroo court for her abuse and mistreatment of the workers. Agbuya was extremely frightened to say anything about her view of the labor situation, so she simply told the men that they should sit down and present their ideas to the government. Agbuya was afraid for her own life, and for the welfare of her youngest child who was still nursing at the time.

The guerillas demanded a ransom of 150,000 pesos from her family. She was released on September 8 after her family paid the full ransom. But the guerillas warned Agbuya that wherever she worked, they would keep her under surveillance. Following the abductors’ instructions and afraid of further reprisal, Agbuya and her family never reported the kidnapping to the police or to the mining company. Ag-buya was too frightened to return home for several months. On April 25,1992, she came to the United States and later applied for asylum. During her absence, her family has received several phone calls checking on her whereabouts.

II.

On October 17, 1995, an Immigration Judge denied Agbuya’s application for asylum and withholding of deportation, but granted voluntary departure. Although the IJ had “no difficulty with her credibility,” she concluded that Agbuya had not established a well-founded fear of persecution. The BIA affirmed, concluding that any persecution Agbuya had previously suffered was not on account of her political opinion. The BIA found that “[t]he direct and circumstantial evidence does not support an inference that the miners’ threats and actions against her were motivated by anything other than their anger at adverse personnel actions ... which they considered to be unfair or in violation of their contract.” Agbuya timely petitioned this court for review of the BIA’s decision.

A. General Standards for Asylum Eligibility

To be eligible for asylum, Agbuya must show that she is “unwilling or unable” to return to her home 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.” 8 U.S.C. § 1101(a)(42)(A) (defining “refugee”). To establish a well-founded fear of persecution, Agbuya must show her fear to be both objectively reasonable and subjectively genuine. See Fisher, 79 F.3d at 960. The objective component of this test requires showing “by credible, direct, and specific evidence in the record, that persecution is a reasonable possibility.” Meza-Manay v. INS, 139 F.3d 759, 763 (9th Cir.1998) (quoting Singh v. Ilchert, 63 F.3d 1501, 1506 (9th Cir.1995)). This showing may be made “by the production of specific documentary evidence or by the credible and persuasive testimony of the applicant.” Id. “[P]ersecutory conduct may have more than one motive, and so long as one motive is one of the statutory grounds, the requirements have been satisfied.” Singh v. Ilchert, 63 F.3d at 1509; see Briones v. INS, 175 F.3d 727, 729 (9th Cir.1999); Borja v. INS, 175 F.3d 732, 735 (9th Cir.1999); Ratnam, 154 F.3d at 994; Rodriguez-Roman v. INS, 98 F.3d 416, 430 n. 23 (9th Cir.1996).

Evidence of past persecution alone can establish a well-founded fear. See id. Establishing past persecution triggers a rebuttable presumption of a well-founded fear of future persecution. See 8 C.F.R. § 208.13(b)(l)(i). The INS can rebut this presumption by showing by a preponderance of the evidence that conditions “have changed to such an extent that the applicant no longer has a well-founded fear of being persecuted if he or she were to return.” Id.

Where an asylum applicant relies on past persecution on account of political opinion to establish a rebuttable presumption of a well-founded fear of future persecution, she must show that (1) she was a victim of persecution, (2) she holds a political opinion or has had one imputed to her, (3) her political opinion was known to or imputed by her persecutors, and (4) the persecution was on account of her actual or imputed political opinion. Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir.1997). When an applicant has been persecuted because of an opinion imputed to her, our analysis focuses on how the persecutor perceived the applicant’s actions and allegiances, and what motivated their abuse. In Sangha, we held that:

In establishing an imputed political opinion, the focus of inquiry turns away from the views of the victim to the views of the persecutor. We consider, however, not the persecutor’s own political opinions, but rather the political views the persecutor rightly or in error attributes to his victims. If the persecutor attributed a political opinion to the victim, and acted upon the attribution, this imputed view becomes the applicant’s political opinion as required under the Act.

Id. at 1489 (internal citation omitted). In Desir v. Ilchert, 840 F.2d 723 (9th Cir.1988), we examined the case of a Haitian man who was arrested, threatened, and assaulted by the Ton Ton Macoutes because he refused to pay bribes. We examined Desir’s refusal in the context of the Haitian political system as a whole and concluded that “Desir’s refusal to accede to extortion in a political system founded on extortion resulted in his classification and treatment as a subversive.” Id. at 727.

We review the BIA’s factual findings under the substantial evidence standard. The findings must be supported by reasonable, substantial, and probative evidence on the record considered as a whole. 8 U.S.C. § 1105(a)(4); INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Reversal should occur where the evidence is such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed. See Yazitchian v. INS, 207 F.3d 1164, 1168 (9th Cir.2000).

B. Analysis

In this case, the IJ found Agbuya’s testimony to be credible and worthy of full weight as evidence, and the BIA did not find otherwise. Accordingly, we accept Agbuya’s testimony as true. See Singh v. INS, 94 F.3d 1353, 1356 (9th Cir.1996). The point of contention is over the reason for the NPA’s persecution of Agbuya. In the BIA’s view, Agbuya failed to show that the kidnapping was motivated by any political opinion-imputed or actual-or by “any position of political neutrality which she may have had.”

We disagree. There is little doubt that Agbuya was singled out by the guerillas for persecution because of the unpopular actions she took while an employee of Benguet. In the context of the communist guerilla insurgency in the Philippines, however, Agbuya’s personnel actions took on an importance beyond their impact on the miners. A reasonable factfinder would have to conclude that the communist NPA interpreted Agbuya’s actions as an affront to their cause: Agbuya was viewed as politically aligned with the mining company and the government, and against the NPA. Indeed, the fact that Agbuya was kidnapped and threatened only after she had resigned her position and that the NPA threatened to monitor her activities in the future indicates that she was identified by the NPA as an enemy for more than simply the job she held. Further, Agbuya’s NPA captors explained that they objected not only to the specific employment-related actions she took at the mine, but also to her “wrongdoings to the laborers of the Philippines,” a statement demonstrating the content of the opinion imputed to Agbuya. Once she was perceived as an enemy of a particular group of workers — those at the Benguet Corporation— the NPA targeted her as an enemy of the “laborers” of the whole country and thus as an opponent of the guerilla group. This link was made explicitly by Agbuya’s NPA persecutors, who berated her for opposing their egalitarian ideology by acting unfairly toward the miners, with whom they sympathized.

We have found an imputed political opinion in situations where it is “likely that the persecutors will attribute the political views of others to the applicants.” Sangha, 103 F.3d at 1489; see also Briones, 175 F.3d at 729 (finding petitioner had a hostile political opinion imputed to him by his NPA persecutors). The NPA kidnapped and threatened Agbuya because she was perceived to be pro-government and therefore an enemy of the miners and the NPA. Just as the refusal to pay the Ton Ton Macoutes gave rise to an imputed political opinion in Desir, here Agbuya’s identification with Benguet management as a result of her job led to her classification and treatment as an opponent of the communist NPA. See Desir v. Ilchert, 840 F.2d 723 (9th Cir.1988).

The dissent argues that Agbuya’s persecution amounted to “economically-motivated persecution.” Dissent at 3052. The dissent stresses that Agbuya did not make any political statements or consciously side with anyone in the struggle. As discussed above, such purported silence and neutrality does not decide the matter. Instead, we must look at how she was viewed in the eyes of the persecutors. Here, the guerilla NPA viewed Agbuya as an enemy of the miners, the NPA, and the communist cause. Agbuya need not identify herself in this way to qualify for political asylum.² She was abducted, falsely imprisoned for a week, hit, threatened with a gun, and told she would be tried in a kangaroo court because of a political opinion imputed to her by her persecutors. All of this happened after she left her job, indicating that the NPA was after Agbuya for what they perceived to be her political views. She was not, as the dissent indicates, persecuted because she was rich or middle class. Instead, she was persecuted, like so many refugees who seek safe haven in the United States, because she was identified as an opponent of communism. The BIA erred because its determination was not supported by reasonable, substantial, and probative evidence on the record considered as a whole. Agbuya is entitled to political refugee status.³

Our finding that Agbuya has established past persecution entitles her to a rebutta-ble presumption of a well-founded fear of future persecution. 8 C.F.R. § 208.13(b)(l)(i). This presumption may be overcome by evidence “that since the time the persecution occurred conditions in [the Philippines] have changed to such an extent that [Agbuya] no longer has a well-founded fear of being persecuted if she were to return.” Id.-, see also Matter of Chen, 20 I. & N. Dec. 16 (BIA 1989).

The INS in this case failed to rebut the presumption by showing the effect of changed country conditions. The BIA itself noted that according to the State Department’s report on country conditions in the Philippines in 1994, kidnappings by the NPA continue to be a problem in the Philippines. The report also states that the government has not been successful at curbing continued human rights abuses committed by the NPA. The INS presented no evidence to overcome the presumption that Agbuya has a well-founded fear of persecution if she were to return to the Philippines.

Because the INS did not rebut the presumption that Agbuya had a well-founded fear of persecution on account of political opinion, the BIA erred by denying that Agbuya was eligible for asylum. See 8 C.F.R. § 208.13(b); Singh v. Ilchert, 63 F.3d 1501, 1510 (9th Cir.1995). In addition, because the INS did not rebut the presumption that it is more likely than not that Agbuya’s life or freedom would be threatened upon returning to the Philippines, the BIA erred by denying her application for withholding of deportation. See 8 C.F.R. § 208.16(b)(2); Singh, 63 F.3d at 1510.

We remand this case to the BIA with instructions to grant petitioner’s application for withholding of deportation and to present this matter to the Attorney General as eligible for the exercise of her discretion as to asylum under 8 U.S.C. § 1158(b).

PETITION GRANTED.

1 . The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) was enacted on September 30, 1996. See Pub.L. No. 104-208 (Division C), 110 Stat. 3009-546. IIRIRA repealed section 106(a) of the INA, and replaced it with a new judicial review provision at section 242 of the INA. This repeal became effective on April 1, 1997. See IIRIRA § 309(a). However, for cases where, as here, deportation proceedings began before April 1, 1997, and where the final order of deportation was issued after October 30, 1996, IIRIRA's “transitional rules” provide that, with certain exceptions not relevant to this case, the court of appeals has jurisdiction under old section 106(a) of the INA. See IIRI-RA §§ 309(c)(1) and (4), 110 Stat. 3009-625-26.

2 . The dissent finds Desir inapposite, stating that "it is utterly implausible that labor-management relations is as central to the underpinnings of the Philippines' political system as extortion was to the Haitian political system under Duvalier.” Dissent at 3059. However, the State Department Report on Human Rights Practices lor 1994 makes clear that the government of the Philippines is engaged in an ongoing violent struggle with the communist NPA, and the record demonstrates that central to the guerillas' advocacy of communism is the belief in more egalitarian labor-management relations. In fact, in 1990 the NPA raided Benguet Mining Corp., stealing millions in cash and gold and silver bars, and taking two of the company's executives hostage. A newspaper article on the incident suggested that the NPA was using the hostages and valuables to negotiate the settlement of a long-standing labor dispute. The NPA’s active involvement in the labor dispute illustrates that it regarded the miners' plight as one of its causes. It follows that Agbuya's perceived opposition to this cause was regarded as opposition to the NPA itself.

3 . The dissent’s reading of our decision as "essentially conflat[ing] an economic motivation with a political one,” dissent at 3060, misapprehends our opinion. We believe that the record clearly establishes that while Agbu-ya’s initial threats by Benguet miners were economically motivated, the NPA’s later involvement on behalf of its laborers and in furtherance of its own egalitarian labor-management relations agenda establishes the political nature of her later persecution.

We also disagree with the dissent’s claim that our finding of past persecution conflicts with the Seventh Circuit’s decision in Cuevas v. INS, 43 F.3d 1167 (7th Cir.1995). In Cuevas, the asylum applicants testified that land squatters associated with the NPA persecuted them because they refused to sell them land so that they could grow rice. See id. at 1171. There was no indication that the feud between the NPA squatters and the applicants was based on anything other than both parties' desire to take advantage of the land's economic value. See id. Here, in contrast, Ag-buya was persecuted because she was viewed as an enemy of laborers and the communist cause.