Guerrero de Brenner v. Ashcroft

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 03-2818
___________
Thays Xinia Guerrero De Brenner; *
Roberto Leonardo Brenner-Galarza; *
Romina Mariana Brenner-Guerrero, *
*
Petitioners, * Petition for Review of an
* Order of the Board of
v. * Immigration Appeals.
*
John Aschcroft, Attorney General of *
the United States of America, *
*
Respondent. *
___________
Submitted: June 14, 2004
Filed: November 10, 2004
___________
Before LOKEN, Chief Judge, HEANEY and MELLOY, Circuit Judges.
___________
MELLOY, Circuit Judge.
Petitioners appeal the Board of Immigration Appeals’s (“BIA”) reversal of an
immigration judge’s decision to grant asylum. The immigration judge found that the
petitioners were credible and subject to past persecution in their home country of
Peru. The immigration judge further found that evidence of changed country
conditions did not overcome the presumption of a well-founded fear of future
persecution. The BIA, however, concluded that the immigration judge failed to
determine if the past persecution occurred due to a protected statutory basis. The BIA
proceeded to determine that any past persecution occurred due to the petitioners’
wealth rather than a protected statutory basis such as political opinion. The BIA also
made an alternative finding that, even if persecution occurred due to a statutory basis,
changed country conditions removed any objectively reasonable fear of future
persecution.
Regarding the issue of past persecution, we reverse. The administrative record
compels the conclusion that the petitioners suffered persecution due at least in part
to a statutory basis, namely, imputed political opinion. Further, in reaching its
alternative finding on the issue of changed country conditions, the BIA failed to place
the burden of proof on the Immigration and Naturalization Service (“INS”) (now the
Department of Homeland Security, “DHS”) to show that changed country conditions
overcame the presumption of a well-founded fear of future persecution. Accordingly,
we remand to the BIA for reconsideration on the issue of changed country conditions.
I.
The immigration judge specifically found the petitioners credible. He based
his decision to grant asylum, in part, on his credibility determination. Although the
BIA reversed the immigration judge’s ultimate conclusions, it did not reject his
credibility findings. Accordingly, we review the record and set forth our detailed
recitation of the facts in a light that reflects these credibility findings.
Lead petitioner Thays Xinia Guerrero De Brenner (“Ms. De Brenner”) was
born in 1966 and comes from a Peruvian family of eight that was wealthy by local
standards. Her mother was a professor of nursing, and her family owned a cocoa
plantation and local shoe store in the city of Ayacucho. They also owned a hotel in
the nearby coastal city of Ica.
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In 1982, guerrillas with a Marxist, revolutionary, terrorist group known as
Sendero Luminoso (“Shining Path”) targeted her family. The Shining Path originated
near Ayacucho around 1980. Ms. De Brenner described the Shining Path as a group
whose goal was to take from the rich and give to the poor. From 1982 until as late
as 1997, Ms. De Brenner’s family received direct threats, some of which were
extortionate demands, from Shining Path guerrillas. Some of the threats were notes
signed by Abimael Guzman, leader of the Shining Path. Strangers followed and
monitored the family, and the threats described the family’s activities and movements
with great detail. In the demands, the guerrillas sought financial and material
assistance (food, medicine, shoes). For a time, the family complied. When the family
refused to comply, the guerillas threatened to “disappear” the family’s children. Ms.
De Brenner’s mother resigned from her position as a nursing professor because of the
threats. In some of the threats the Shining Path guerillas mentioned Ms. De Brenner,
the oldest daughter of the family, by name. In other threats, they claimed the family
was associated with the then-ruling party in Peru.
Also in 1982, the guerrillas published Ms. De Brenner’s parents’ names along
with the names of approximately thirty other business or property owners on a
“blacklist” posted throughout Ayacucho. According to Ms. De Brenner, the blacklist
stated “death to the traitors” and “death to those who don’t cooperate.” In addition,
the blacklist stated that the Shining Path deemed the persons on the list to be “not
advancing the lives of the masses or merely as being uncooperative.”
Even before the guerillas published the blacklist, they had murdered numerous
people in Ayacucho. After Ms. De Brenner’s family saw the list, they were afraid to
leave their home. They frequently sought, and sometimes received, police protection.
Police protection was often unavailable, however, because the police were occupied
fighting the Shining Path guerrillas. Eventually, Shining Path guerrillas infiltrated
the ranks of the army and the police and confusion reigned. The guerrillas murdered
some of the people named on the blacklist. In 1989, the guerrillas published another
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blacklist that contained Ms. De Brenner’s parents’ names. Ms. De Brenner’s name
was not on either the 1982 or 1989 blacklists.
Although the guerrillas did not physically harm Ms. De Brenner or her
immediate family, they burned her family’s cocoa plantation and turned it into a
cocaine plantation, destroyed a lumber business that her family had tried to develop,
tortured and killed her mother’s cousins, and tortured, raped and killed a number of
family friends and acquaintances in and around Ayacucho. In the affidavit that
accompanied her application for asylum, Ms. De Brenner reported the details
surrounding much of the Shining Path’s savagery towards her family and friends in
Ayacucho. She described the torture, castration, and murder by skinning of
prominent Ayacucho citizens in front of their families as well as crucifixions and less
dramatic assassinations.
In 1983, Ms. De Brenner left the family home in Ayacucho because of the
threats and violence and moved to Arequipa, Peru, to live with other relatives for five
months. When the situation temporarily settled down in Ayacucho, she returned
home. After three months, however, because of escalating violence, she moved to
Lima to live with family friends. Eventually, all members of the family moved away
from Ayacucho. The threats continued, however, as the Shining Path movement
expanded from Ayacucho to encompass more of Peru.
While in Lima, Ms. De Brenner maintained a low profile and met few people.
She did, however, meet and marry Roberto Leonardo Brenner-Galarza (“Mr.
Brenner”), a close friend of the family that hosted her in Lima. Ms. De Brenner and
Mr. Brenner had their first child, Romina Mariana Brenner-Guerrero (“Romina”).1
1
Mr. Brenner and Romina are the other petitioners in this case. Under the
Immigration and Nationality Act, “[a] spouse or child . . . of an alien who is granted
asylum . . . may, if not otherwise eligible for asylum . . . be granted the same status
as the alien if accompanying, or following to join, such alien.” 8 U.S.C. § 1158
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Mr. Brenner does not claim that he received any threats from Shining Path guerrillas
before he married Ms. De Brenner. He did lose a job when a hotel/casino that he
worked for suffered a loss of business due to Shining Path threats and bomb scares.
He later worked as a sales representative for Pepsico, Co. For Pepsico, Co., he had
to travel with police protection to areas of Peru that the government labeled “red
zones” based on high levels of Shining Path activity. He stated that Shining Path
guerrillas targeted employees of Pepsico, Co. because it was a corporation with ties
outside Peru, and the Shining Path was opposed to corporations with ties outside
Peru.
While still in Lima, Ms. De Brenner began work as a secretary in a state-owned
bank. She eventually became the executive secretary to the General Manager. The
General Manager was an active, senior member of the APRA, the party in power.
The APRA opposed the Shining Path. Shining Path guerrillas targeted bank
employees and members of the APRA in particular.
Ms. De Brenner claimed that “the frequency and tenor of the threats escalated
because of my career with the state-owned bank, Banco Minero de Peru, and my
husband’s career with Pepsico Co., an American-owned (“Imperialist”) corporation.”
She claimed that, after she began her work at the bank and Mr. Brenner began his
work at Pepsico, Co., the Shining Path guerillas more frequently directed their threats
towards her and her husband rather than her parents. She stated in her affidavit:
Sendero Luminoso’s threats stated that they knew where I was working,
what position I held. They stated that I was working for the APRA
(b)(3)(A). For the purposes of that section, a child is, inter alia, a person under
twenty-one years old. 8 U.S.C. § 1101(b)(1). Classification as a child continues if
the person remains unmarried, was a child when his or her parent filed for asylum,
and reached the age of twenty-one while the application was pending. 8 U.S.C. §
1158(b)(3)(B). Romina is still younger than twenty-one.
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(Aprista), the party in power. They spoke badly about the government
and wrote that Roberto and I were guilty of the same “misdeeds” as the
government . . . “exploiting the poor and promoting a capitalist,
imperialistic society.”
...
Sendero Luminoso also insisted that I was actually working for the party
as the personal secretary to [the APRA member and Banco Minero de
Peru General Manger] Mr. Rivas. They went so far as to charge that I
was appointed to my job because of my social standing. I was his
secretary but of the bank, not his personal secretary and not a secretary
for the party.
In 1994, Ms. De Brenner, Mr. Brenner, and Romina left Peru and came to the
United States under visas that listed them as nonimmigrant visitors for pleasure.
Their visas authorized a one-year stay in the United States. They joined Mr.
Brenner’s cousin, who lived in Minneapolis. After Ms. De Brenner, Mr. Brenner, and
Romina arrived in the United States, they remained until the present time with no
departures. Ms. De Brenner and Mr. Brenner had a second child in 1997, Daniel,
who was born in the United States.
The INS instituted removal proceedings against the petitioners—Ms. De
Brenner, Mr. Brenner and Romina—on December 14, 1998. The petitioners
conceded removability, but applied for asylum, withholding of removal, and relief
under the Convention Against Torture. An immigration judge received extensive
documentation regarding the country conditions in Peru and affidavits from the adult
petitioners. In addition, the immigration judge held an evidentiary hearing on April
12, 2000. Ms. De Brenner provided extensive and detailed testimony, Mr. Brenner
testified, and the attorney for the INS chose not to cross-examine either witness.
Ms. De Brenner explained that some members of her family still live in Peru,
and have received no threats since approximately 1997. In the last threat, Shining
Path guerrillas sought aid, but her family ignored the request with no adverse
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consequences. Other members of her family left Peru and sought asylum in other
countries.
As noted above, the immigration judge found Ms. De Brenner and Mr. Brenner
credible. He stated:
The Court has no real reason to dispute the credibility of the
respondents. Their testimony throughout their dealings with the
Immigration Service and this Court has been consistent. The bulk of the
testimony comes from the female respondent, detailing her own family’s
history of problems starting in Ayacucho in the early 1980s and
continuing up to the time that the family left Peru in 1994. The Court
finds this testimony credible, based on the observation of the witnesses,
and also based on the consistency of the respondents’ stories with the
well-documented conditions in Peru. The Court will accordingly find
the witnesses credible. . . .
Her testimony is clear that her family was wealthy by Peruvian
standards. As a result of the family being well-to-do and owning several
businesses, they were targeted for threats of violence by the Shining
Path. The Court feels that the evidence is overwhelming that the
Shining Path is one of the most violent terrorist organizations in the
world in the last 25 years. The fact that the respondent’s family was
targeted because of their wealth and business activities is not surprising
in light of the documented activities of Shining Path. Shining Path was
a Marxist revolutionary organization seeking to overthrow the
government and economy of Peru to replace it with a revolutionary
peasant states [sic]. It is very credible that the respondent and her family
would have received the threats she describes.
The immigration judge went on to find that the family experienced past
persecution and therefore, held a well-founded fear of future persecution. He also
found that country conditions were not sufficiently changed to rebut the presumption
of a well-founded fear of future persecution that arises from a showing of past
persecution. The immigration judge discussed changed country conditions at length.
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The record before the immigration judge included material from a 1998 Human
Rights Watch World Report, a 1997 State Department Country Profile on Peru, a
1999 State Department Country Report on Peru, a 2000 State Department Country
Report on Peru and various other articles and reports dated through April 11, 2000.
The immigration judge noted that these sources agreed generally that the Peruvian
government under President Fujimori had captured Abimael Guzman, leader of the
Shining Path, and greatly reduced the ranks of Shining Path rebels. In fact, President
Fujimori’s campaign against the Shining Path resulted in a dramatic decrease in the
number of emergency or “red” zones and a partially successful containment of
remaining Shining Path members in rural areas. The immigration judge found,
however, that the documentary evidence still showed substantial Shining Path activity
as well as uncertainty surrounding ongoing presidential elections that raised the
possibility of instability and a renewal of power for the Shining Path. The
immigration judge noted in particular several murders by Shining Path guerrillas in
1999, an attack by a group of forty rebels in 1999, and the assassination of thirty-six
low level community officials and leaders of social movements in the first half of
1998. The immigration judge noted that some attacks occurred in the month before
he rendered his opinion.
Because the immigration judge ultimately determined that the petitioners held
a well-founded fear of future persecution based on their past persecution and
insufficiently changed country conditions, he granted asylum. He did not address the
alternative forms of relief of withholding removal or relief under Article III of the
Convention Against Torture.
The INS appealed to the BIA. The BIA accepted the immigration judge’s
findings regarding credibility and regarding the petitioners’ unrebutted assertions
about the acts of past persecution. The BIA found, however, that the immigration
judge’s finding of past persecution was based on wealth rather than a statutorily
protected basis such as imputed political opinion. The BIA also determined in the
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alternative that changed country conditions overcame the presumption of an
objectively reasonable, well-founded fear of future persecution.
In reaching this conclusion regarding changed country conditions, the BIA
noted several factors. First, the BIA emphasized that several members of Ms. De
Brenner’s family remained in Peru and were not harmed by the Shining Path. Second,
the BIA emphasized that the last threat members of Ms. De Brenner’s family received
in Peru was a 1997 threat and demand letter from the Shining Path. This threat
resulted in no harm to the family even after the family refused to comply with the
demands. Third, the BIA emphasized the general success that President Fujimori’s
regime enjoyed in its fight against the Shining Path. Finally, the BIA explained that
President Fujimori’s regime diminished remaining Shining Path forces to such an
extent that ongoing acts of violence were limited to attacks on persons considered key
targets or attacks in remote areas of the country.
The petitioners filed a motion to reconsider in which they asked the BIA to
reopen the case and reconsider its position. The petitioners argued that the BIA
committed legal error when it failed to apply a mixed-motive analysis and consider
the possibility that Shining Path guerrillas persecuted the petitioners due to both their
wealth and their imputed political opinions. The petitioners also urged the BIA to
examine additional evidence regarding changed country conditions. The BIA
considered the new evidence but rejected the motion, stating, “[e]ven though the
Shining Path members may have believed that the respondent was affiliated with the
then-governing party in Peru, we believe that the impetus for her difficulties with the
guerrillas was her alleged wealth, as we stated in our opinion.” This appeal followed.
II.
To be eligible for asylum, an applicant must show that he or she is a “refugee.”
A refugee is an alien who is unable or unwilling to return to her country of origin
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“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). Where there has been persecution on account of political
opinion, it does not matter if the applicant actually holds the political opinion that the
persecutor attributes to her. Rather, we consider “the political views the persecutor
rightly or in error attributes to [a] victim[]. 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.” Sangha v. INS, 103 F.3d
1482, 1489 (9th Cir. 1997); see also, Vera-Valera v. INS, 147 F.3d 1036, 1039 (9th
Cir. 1998) (finding that Shining Path guerillas imputed a political opinion to a leader
of a street vendors association and based their persecution of the street vendor on this
imputed opinion); Ravindran v. INS, 976 F.2d 754, 760 (1st Cir. 1992) (“An imputed
political opinion, whether correctly or incorrectly attributed, may constitute a reason
for political persecution within the meaning of the Act.”).
Further, persecution due to a statutorily protected ground may provide a basis
for a finding of refugee status even though other, nonprotected criteria might have
provided additional motivation for the persecutor’s actions. See Tarubac v. INS, 182
F.3d 1114, 1119 (9th Cir. 1999) (“[T]he presence of a nonpolitical motive for
persecution does not, without more, prove the absence of a political motive.”); Borja
v. INS, 175 F.3d 732, 735 (9th Cir. 1999) (“The plain meaning of the phrase
persecution on account of the victim’s political opinion, does not mean persecution
solely on account of the victim’s political opinion.”) (internal quotations omitted).
Accordingly, where a communist regime that seeks to overthrow the current
economic and political infrastructure of a nation and install an agrarian peasant state
targets wealthy individuals, it is not sufficient merely to label the past persecution as
nonpolitical extortion or persecution “on account of wealth.” Rather, it remains
necessary to carefully examine the record to determine whether the evidence shows
that the persecution also occurred on account of a protected ground.
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If an applicant demonstrates past persecution based upon a statutorily protected
ground, such as actual or imputed political opinion, a presumption arises that she
holds “a well-founded fear of persecution on the basis of the original claim.” 8
C.F.R. § 208.13(b)(1). The DHS may rebut this presumption through showing by
preponderant evidence that country conditions in the country of origin have
undergone a “fundamental change” from the time of the persecution and that the
fundamental change is sufficient to eliminate the basis for the applicant’s fear of
future persecution. 8 C.F.R. §§ 208.13 (b)(1) and 208.13(b)(1)(i)(A). If the DHS
does not satisfy this burden of rebuttal, the applicant is eligible for asylum.
We affirm the BIA’s “decision if it is supported by substantial evidence on the
administrative record considered as a whole.” Awale v. Aschroft, 384 F.3d 527, 530
(8th Cir. 2004); INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). We have held this
to mean that we may not overturn the BIA’s denial of relief “unless ‘the evidence [is]
so compelling that no reasonable fact finder could fail to find the requisite fear of
persecution.’” Perinpanathan v. INS, 310 F.3d 594, 597 (8th Cir. 2002) (quoting
Feleke v. INS, 118 F.3d 594, 598 (8th Cir. 1997)). We review the BIA’s legal
determinations de novo, but afford the BIA deference in the interpretation of
ambiguous statutory terms if the “interpretation is reasonable and consistent with the
statute.” Corado v. Ashcroft, 384 F.3d 945, 947 (8th Cir. 2004).
Applying these principles to the facts of the present case, we find that the
administrative record compels a finding of past persecution on account of imputed
political opinion. The BIA’s decision to the contrary lacks the support of substantial
evidence. With little analysis, and no recognition of the undisputed evidence that the
Shining Path imputed political opinion to Ms. De Brenner, the BIA declared that
economic rather than political criteria served as the “impetus” for the Shining Path’s
actions. In reaching this conclusion, the BIA failed to acknowledge that Shining Path
guerrillas expressly named Ms. De Brenner as a member and supporter of the APRA,
accused her family of supporting the government, and mistakenly singled her out as
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an actual worker for the APRA (alleging that she was employed as the personal
secretary of the Director of the Mineral Bank who was a senior, active member of the
APRA). In addition, the record contained numerous references to the fact that the
Marxist revolutionary Shining Path guerrillas targeted bank employees and
employees of “imperialist” multinational corporations in particular. The guerillas,
therefore, effectively singled out certain members from wealthy sectors of the
Peruvian economy or people associated with the economic infrastructure of the nation
and labeled them as political enemies due to their participation in the capitalist
economy. See, e.g., Vera-Valera, 147 F.3d at 1039 (“Conflating his position with that
of the government, Sendero Luminoso members accused him of being a spy for the
government, a capitalist bureaucrat and a traitor.”).
The BIA itself, in its denial of the petitioners’ motion to reconsider, stated,
“[e]ven though the Shining Path members may have believed that the respondent was
affiliated with the then-governing party in Peru, we believe that the impetus for her
difficulties with the guerrillas was her alleged wealth, as we stated in our opinion.”
This statement make clear that the BIA in this instance improperly demanded that
persecution occur solely due to a protected basis. There is no such requirement in the
statute and the BIA’s insertion of such a requirement is not the type of reasonable
agency interpretation that demands our deference. See Osorio v. INS, 18 F.3d 1017,
1028 (2nd Cir. 1994) (“[T]he conclusion that a cause of persecution is economic does
not necessarily imply that there cannot exist other causes of the persecution.”);
Shoafera v. INS, 228 F.3d 1070, 1075 (9th Cir. 2000) (stating that mixed motives do
not preclude a finding of refugee status). Given the overwhelming evidence of an
imputed political opinion in this case, and given the BIA’s apparent imposition of a
single motive requirement, we do not find substantial evidence to support the BIA’s
conclusion.
Our decision is also based on the BIA’s failure to acknowledge the relationship
between the Shining Path’s economic and political agendas. In this case, there is a
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strong argument that the Shining Path imputed certain political opinions to all
wealthy Peruvians. Of course, we do not hold today that all threats or attacks upon
wealthy individuals by radical communist insurgents amount to politically motivated
persecution. We do note, however, that in a case such as this, where an insurgent
group’s known goal is to replace the economic and political institutions of a country
with a peasant state, and where it is also known that the insurgents, in their written
threats, singled out Ms. De Brenner as the purported member of a specific political
party, it is an oversimplification to label the threats as simple extortion without
carefully examining the record for particularized evidence of imputed political
opinion.
The DHS relies on Elias-Zacharias, 502 U.S. 478, to support its position. In
Elias Zacharias, the Supreme Court held that attempts by guerillas to recruit an
asylum applicant, and attacks on the applicant for not joining their cause, did not
amount to politically motivated persecution. Id. at 483. The Court found that
resistance to recruitment might have been motivated by any of a number of
nonpolitical reasons. See id. at 482 (“Even a person who supports a guerilla
movement might resist recruitment for a variety of reasons–fear of combat, a desire
to remain with one’s family and friends, a desire to earn a better living in civilian life,
to mention only a few.”). The Court concluded simply that retaliation for non-
cooperation does not necessarily mean that insurgents believed an applicant resisted
on political grounds. In Elias-Zacharias, then, the record did not compel the
conclusion that imputed or actual political opinion motivated the insurgents’ actions.
The DHS argues that the extortionate demands upon Ms. De Brenner and her
family were analogous to the recruitment efforts in Elias-Zacharias—efforts by
insurgents to further their cause without reference to the political views of the victim.
We disagree. Unlike Elias-Zacharias, the record in the present case contains
undisputed evidence that the insurgents labeled Ms. De Brenner a political enemy.
Elias- Zacharias simply did not involve this type of undisputed evidence of political
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motivation.2 The BIA’s decision to isolate the Shining Path’s extortionate demands
and threats from the balance of the evidence in this case led to the insupportable
conclusion that the threats were non-political demands for financial and material
support.
Regarding changed country conditions, the BIA committed legal error in the
apportionment of the burden of proof. The petitioners were entitled to a presumption
of refugee status upon a showing of past persecution due to a protected basis. 8
C.F.R. § 208.13 (b)(1). Although the BIA did not find past persecution due to a
protected basis, the BIA did purport to set forth an alternative basis for relief.
Accordingly, the BIA’s analysis of changed country conditions should have
proceeded on the assumption that the petitioners had established past persecution on
account of a protected basis. This would have placed the burden of rebuttal on the
DHS. When the BIA presented its alternative basis for denying relief, however, it
placed the burden on the petitioners. The BIA stated in its order denying relief,
2
Our conclusion is consistent with many cases in which courts refused to read
Elias-Zacharias as having established a bright line rule for the exclusion of instances
of extortion or recruitment as bases for finding past persecution. These cases, like our
opinion above, show that careful attention to the particular circumstances surrounding
the alleged persecution remains necessary even if the persecution is generally
categorized as extortion or recruitment. Compare Boyarintsev v. Ashcroft, No. 02-
4213, 2004 WL 627009 at *3 (7th Cir. Mar. 25, 2004) (unpublished) (denying asylum
where an applicant failed to show that extortionate demands were on account of
“political beliefs, rather the prospect of personal economic gain”), and Orobio v.
Ashcroft, No. 02-2841, 2003 WL 21853240 at *2 (3d Cir. July 24, 2003) (denying
asylum where a Philippino businessman failed to show that extortionate demands and
threats of retaliation from an insurgent communist regime were linked to the
businessman’s political opinions) with Agbuya v. INS, 241 F.3d 1224, 1229-1230
(9th Cir. 2001) (finding past persecution on account of imputed political opinion and
rejecting arguments that persecution was merely extortion where communist
insurgents targeted an employee of a mining company who had taken actions in the
course of her employment that the communists viewed as contrary to the benefit of
laborers).
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“Based on this evidence, and in light of the fact that the lead respondent has provided
neither testimony nor independent evidence contradicting the Department of State’s
evaluation of the current conditions in Peru, we conclude that she did not establish
her eligibility for asylum.” (emphasis added). Because the BIA did not conduct the
proper analysis to establish a truly alternative basis for relief, we cannot rely upon the
BIA’s determination as to changed country conditions.
“When the BIA applies an incorrect legal standard, the proper remedy typically
is to remand the case to the agency for further consideration in light of the correct
standard.” Corado, 384 F.3d at 948 (8th Cir. 2004); see also, Hagi-Salad v. Ashcroft,
359 F.3d 1044, 1049 (8th Cir. 2004) (“In these circumstances, our proper disposition
is to remand.”). Accordingly, in light of our disposition of the issue of past
persecution, we remand to the BIA for a determination of whether country conditions
in Peru are sufficiently changed to overcome the presumption that exists in
petitioners’ favor. On remand, the BIA may reopen the record to consider more
recent evidence of country conditions. See INS v. Orlando Ventura, 537 U.S. 12, 18
(2002) (holding that well-established principles of administrative law required
remand to the BIA for consideration of changed country conditions and stating that
“remand could lead to the presentation of further evidence of current circumstances
in [the petitioners’ country of origin] — evidence that may well prove enlightening
given the five years that have elapsed since the report was written.”)
We reverse and remand to the BIA for further proceedings consistent with this
opinion.
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