Benito Eusebio CHANCHAVAC, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 98-71195.
United States Court of Appeals, Ninth Circuit.
Filed March 27, 2000
As Amended on Denial of Rehearing June 9, 2000.
Argued and Submitted Nov. 5, 1999
CONCLUSION
We affirm the district court‘s holding prohibiting the introduction of extrinsic evidence unless an ambiguity already exists on the face of a contract. Additionally, the court‘s award of attorneys’ fees to American Eagle fell within its discretion: insurers are not prohibited from receiving such awards, and the motives behind American Eagle‘s action are the same ones that
AFFIRMED. Costs and attorneys’ fees to Appellee.
Marion E. Guyton, United States Department of Justice, Office of Immigration Litigation, Washington, D.C., for the respondent.
Before: PREGERSON, NOONAN, and O‘SCANNLAIN, Circuit Judges.
Opinion by Judge PREGERSON; Dissent by Judge O‘SCANNLAIN.
PREGERSON, Circuit Judge:
Benito Eusebio Chanchavac is a citizen of Guatemala and a Quiche Mayan Indian. He petitions for review of a decision of the Board of Immigration Appeals (“BIA“) affirming the Immigration Judge‘s denial of his application for asylum and withholding of deportation. The Immigration Judge found that Chanchavac‘s testimony was not credible and denied his application on that basis. On appeal, the BIA reversed the Immigration Judge‘s adverse credibility finding, but decided that Chanchavac failed to establish his eligibility for asylum and withholding of deportation.1 We have jur
I
During the 1980s, the Guatemalan military fought a civil war against guerrilla organizations in the country‘s rural highlands which include the department of El Quiche. Throughout the war, the military accused the Mayan Indians, who populate the besieged region, of supporting the guerrillas and of being guerrilla combatants. The petitioner in this case, Benito Eusebio Chanchavac, is a Quiche Mayan Indian from Primer Centro Xatinap (“Xatinap“), a rural hamlet in El Quiche. He does not support the guerrillas and professes to hold no political opinion.
In the early 1980s, the Guatemalan military surrounded the town of Xatinap and searched homes without warrants. On one occasion, the military entered Chanchavac‘s home, took him outside, and made him lie on the ground at gunpoint. During this period, many Quiche residents of Xatinap were killed, disappeared, abducted by the military, or went into hiding. Among those killed were two of Chanchavac‘s relatives. His brother, Vicente Chanchavac Benito, was shot in the head, chest, and arm. His grandfather, Emilio Benito Chavez, was shot in the stomach. Chanchavac believes that the military killed his brother and grandfather. On another occasion, Xatinap church leaders were killed and the church was vandalized. Chanchavac and his neighbors believed that the military was also responsible for that crime.
Fearing that it was not safe to remain in Xatinap, Chanchavac moved to Guatemala City in 1987. Guatemala City is located 167 kilometers from Xatinap. Because the military required him to serve in the civil patrol—a counter-insurgency patrol that guarded Xatinap at night—Chanchavac commuted to Xatinap biweekly to fulfill his service obligation. In 1988, when Chanchavac was traveling between Guatemala City and Xatinap on a bus, guerrillas stopped the bus, ordered the passengers to get off, struck the passengers, killed the driver, and burned the bus. As a result, Chanchavac decided that commuting was not safe. He returned to live in Xatinap because he feared that the military would conscript him if he abandoned the civil patrol.
In 1990, the military sent Chanchavac an induction notice, but Chanchavac did not report for duty. The military never contacted Chanchavac about his failure to report for duty.
In August 1992, ten government soldiers broke down the door of Chanchavac‘s home in Xatinap. Three or four of the soldiers threw Chanchavac on the ground, aimed their weapons at him, and kicked him all over his body, causing bleeding in his mouth, nose, and on one leg. During the beating, they asked him where his “guerrilla friends” were and accused him of being a guerrilla. The soldiers then searched his house and demanded to see his papers. When Chanchavac showed them his birth certificate, they copied down his name. The soldiers also beat Chanchavac‘s father. The interrogation, beating, and search lasted about one hour. Chanchavac‘s mother treated his injuries with herbal remedies and he remained in bed for two days to recover. There is no hospital, doctor, or any other medical facility in Xatinap.
In December 1992, a group of armed men broke into Chanchavac‘s home around midnight. Identifying themselves as guerrillas, they asked Chanchavac to leave with them. Chanchavac told them that he could not leave because his family depend
Following these incidents, Chanchavac fled Guatemala. He traveled through Mexico and entered the United States near Douglas, Arizona on or about December 25, 1992, without inspection. Chanchavac‘s parents and sister also fled Xatinap, relocating in another town in the department of El Quiche. Two of Chanchavac‘s relatives who remained in Xatinap were killed. One was shot and the other was tortured. The government did not investigate their deaths. A friend informed Chanchavac that after Chanchavac left Guatemala, the military compiled lists of people who relocated away from Xatinap.
II
Credibility of Chanchavac‘s Testimony
We begin with the question of credibility. The BIA stated that it “[did] not conclude that this is a case in which an adverse credibility finding would be sustained under the controlling precedent of the Ninth Circuit.” We read this statement as an implicit finding of credibility because concluding that an adverse credibility finding would not be sustained is tantamount to finding that Chanchavac‘s testimony was credible. We agree with the BIA‘s credibility determination because the record contains no materially inconsistent testimony at all.2 Thus, we do not remand to the BIA for a credibility determination.
III
Statutory Eligibility for Asylum
The Attorney General has discretion to grant asylum to an alien who is a “refugee.” See
We review the BIA‘s factual findings, including credibility determinations, under the deferential “substantial evidence” standard. See INS v. Elias-Zacarias, 502 U.S. 478, 480-81, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). We may only reverse the BIA‘s factual determinations if “the evidence ... presented was so compelling that no reasonable fact finder could fail to find the requisite fear of persecution.” Id. at 483-84. We reverse the BIA‘s finding as to Chanchavac‘s statutory eligibility for asylum because the evidence in the record compels us to conclude that Chanchavac has a well-founded fear of persecution by the Guatemalan military on account of imputed political support for the guerrillas.
A
Well-Founded Fear of Persecution
An asylum applicant has a “well-founded fear of persecution” if his fear is subjectively genuine and objectively reasonable. See Fisher v. INS, 79 F.3d 955, 960 (9th Cir.1996) (en banc). An applicant who demonstrates that he suffered past persecution is entitled the legal presumption that he has well-founded fear of future persecution. See Borja v. INS, 175 F.3d 732, 737 (9th Cir.1999) (en banc);
The BIA decided that Chanchavac was afraid, but that his fear was not objectively reasonable. Specifically, the BIA held that Chanchavac “suffered an insufficient level of harm to support a factual finding of past persecution based on this incident.” We disagree. Chanchavac‘s personal experiences at the hands of the Guatemalan military, coupled with the evidence of violence against Chanchavac‘s family and community, clearly constitute persecution as that term is defined.3 As a result, he is entitled to a legal presumption of a well-founded fear of persecution.
The Immigration and Nationality Act,
Chanchavac‘s persecutors engaged in repeated violent attacks against Chanchavac‘s family and community, and violently attacked Chanchavac himself on one occasion. In August 1992, the military broke into his home and beat him so severely that he was bedridden for two days.4 The
In addition, Chanchavac presented extensive evidence of political and social turmoil in Guatemala. Numerous reports by nongovernmental organizations document the brutal military violence centered in the rural highlands where Xatinap is located and targeted at Mayan Indians. For instance, on one occasion, the Guatemalan military threatened and attacked members of an Indian village who refused to report which villagers had family members who were killed by the guerrillas. On another, Indians were violently attacked in Guatemala City and accused of being guerrillas because they wore Indian clothing. Forensic experts have exhumed clandestine graves in El Quiche that were filled with Indian corpses. The military also attacked Guatemalan Indians who fled to refuge camps across the Guatemala-Mexico border. According to Amnesty International, “[l]eaving one‘s community is too frequently taken by the military and their agents as a sign of links with the guerrilla.” Amnesty also reports that “[t]hose refusing to take part in [civil patrols] have been branded ‘guerrillas’, and many have been subjected to human rights violations, including harassment and attacks, ‘disappearance’ and extrajudicial execution.” These reports bolster Chanchavac‘s account.5
It is also irrelevant that the attempted guerrilla recruitment was what prompted Chanchavac to flee Guatemala. Chanchavac proved that the military persecuted him and consistently testified that he fears both the military and the guerrillas. Nor does the fact that Chanchavac did not flee until four months after the military broke into his home and beat him make his fear any less well-founded. See Gonzalez v. INS, 82 F.3d 903, 909 (9th Cir.1996) (finding that the asylum applicant had a well-founded fear where death threats began three years before applicant fled and applicant received no death threats during the last five months in her country); Ramirez Rivas v. INS, 899 F.2d 864, 871 (9th Cir.1990) (“Unless it is the case that the security forces in El Salvador strike rapidly or not at all, the fact that [the petitioner] remained unharmed for a few months while she prepared to leave the country has only marginal probative value.“).
B
The Guatemalan Military‘s Motive
Having concluded that the Guatemalan military persecuted Chanchavac, we turn to the second requirement for statutory asylum eligibility. The persecution must occur “on account of” a protected ground.
An asylum applicant may prevail on a theory of “imputed political opinion” if he shows that the “[p]ersecutor falsely attribute[d] an opinion to [him], and then persecute[d][him] because of that mistaken belief about [his] views.” Canas-Segovia v. INS, 970 F.2d 599, 601-02 (9th Cir.1992). The Guatemalan military believed that Chanchavac sympathized with and participated in a guerrilla organization. While beating Chanchavac in August 1992, the military accused Chanchavac of being a guerrilla and demanded information about his “guerrilla friends.” No reasonable fact finder could fail to find that the military persecuted Chanchavac on account of this imputed political opinion.6
The INS concedes in its brief that the Guatemalan military imputed guerrilla sympathies to Chanchavac, but it hypothesizes that “Chanchavac‘s own refusal to fulfill a [military] service obligation may have been the catalyst” for the beating. There is absolutely no evidence that the military‘s motive for beating him was to punish him for not joining their ranks and it would be improper for us to speculate about this possibility. See Del Valle, 776 F.2d at 1413 (conclusions must be based on substantial evidence, not conjecture). Even if this theory had support in the evidence, it would only prove that the Guatemalan military had two motives when it persecuted Chanchavac. This court, sitting en banc, recently held that evidence of a mixed motive does not defeat an asylum claim, so long as one of the motives is a protected ground. See Borja, 175 F.3d at 736.
C
Conditions in Guatemala
The INS may rebut the presumption, arising from proof of past persecution, that the petitioner has a well-founded fear of future persecution on account of a protected ground by showing that conditions in the applicant‘s home country have changed. See Singh v. Ilchert, 69 F.3d 375, 379 (9th Cir.1995); Tarubac v. INS, 182 F.3d 1114, 1120 (9th Cir.1999). We find that the INS failed to carry its burden.
The INS introduced into evidence the 1995 State Department Country Report for Guatemala. It points to statements in the report that guerrilla strength has declined, that guerrilla recruitment is confined to the rural highlands, and that persons who fail to report for military service are inducted into the army, not prosecuted. None of this information rebuts the presumption that Chanchavac has a well-founded fear of persecution if he returns to Guatemala. Chanchavac does not fear military induction; he served in the civil patrol, a substitute for military service. He fears being beaten and killed by the military on account of imputed sympathy for the guerrillas. Moreover, Xatinap is located in the rural highlands where, according to the report, the guerrillas remains active and where military counter-insurgency activity continues.
The State Department Report also declares that human rights “violations continue at an alarming rate,” that the number of political killings increased, and that the government failed adequately to investigate most of the political killings. Far from demonstrating that Chanchavac‘s fears are excessive, this report gives us further reason to believe that Chanchavac‘s fears are warranted. Cf. Duarte de Guinac, 179 F.3d at 1163 (finding that the same report was insufficient to rebut a presumption of a Quiche Indian‘s well-founded fear of persecution on account of his race).
IV
Withholding of Deportation
An asylum applicant is entitled to withholding of deportation if he shows that the evidence in the record demonstrates a clear probability of persecution. See Korablina v. INS, 158 F.3d 1038, 1045 (9th Cir.1998). There is a clear probability of persecution if “it is more likely than not that the alien would be subject to persecution.” Stevic, 467 U.S. at 424. “A key factor in finding evidence sufficient for withholding of deportation is
V
We grant the petition for review and reverse the BIA‘s denial of Chanchavac‘s application for asylum and withholding of deportation. We remand to the BIA so that the Attorney-General may exercise her discretion to grant asylum. The application for withholding of deportation shall be granted.
PETITION GRANTED. REVERSED AND REMANDED.
O‘SCANNLAIN, Circuit Judge, dissenting:
Here, the court reverses the BIA‘s determination that the petitioner, Benito Eusebio Chanchavac (“Chanchavac“), has failed to demonstrate either that he has been persecuted in the past or that his fear of future persecution in Guatemala is otherwise objectively reasonable. Because substantial evidence supports the BIA‘s determination, I must respectfully dissent. Chanchavac simply has not adduced evidence that is “so compelling that no reasonable factfinder could fail to find” that he has suffered past persecution or has a well-founded fear of future persecution. INS v. Elias-Zacarias, 502 U.S. 478, 484 (1992).
I
Our decision in Prasad v. INS, 47 F.3d 336 (9th Cir.1995), plainly establishes that the BIA‘s determination in this case rests on substantial evidence. In Prasad, we held that the petitioner, an ethnic Indian who resided in Fiji, had not provided “compelling” evidence of past persecution, despite the fact that he had demonstrated both that other ethnic Indians were routinely persecuted in Fiji due to their race and that he himself had been incarcerated, interrogated, and beaten by uniformed officials because of his activity in a political party led by ethnic Indians. See id. at 339 (“While we certainly condemn the attack on Prasad, it is not, in our judgment, so overwhelming so as to necessarily constitute persecution....“). Moreover, our conclusion in Prasad was not altered by the fact that other ethnic Fijians had stoned the petitioner‘s house and attempted to rob his family, see id. at 340 (“Other evidence ... is not enough, either alone or in combination with the above, to compel a factfinder to conclude that persecution or a well-founded fear of persecution existed.“), or by his claims that other family members had been raped and murdered by soldiers, see id. (“Attacks on family members do not necessarily establish a well-founded fear of persecution absent a pattern of persecution tied to the petitioners.” (emphasis added)).
Like the petitioner in Prasad, Chanchavac‘s testimony indicates that he endured only one physical assault that could be fairly characterized as the basis for an asylum claim: In 1992, soldiers entered his home and beat him and his father while asking Chanchavac about his “guerrilla friends.” The other assaults on Chanchavac either did not involve physical abuse or were not on grounds enumerated in the Immigration and Nationality Act. See
The majority nevertheless conjures up several imaginary differences in its attempt to distinguish Chanchavac‘s case from that of the petitioner in Prasad. The majority notes, for instance, that the court in Prasad relied on the fact that the petitioner did not need any medical treatment. See supra at 590 n. 5. There is, however, ample evidence in this case that supports the conclusion that Chanchavac did not need medical attention either. Chanchavac has not claimed that he required medical treatment after his run-in with the military, and he made no effort to seek it at that time. Although the majority suggests that Chanchavac‘s failure to do so was the result of the fact that “[t]here is no hospital, doctor, or any other medical facility in Xatinap,” see supra at 590, the record does not support the inference that medical care was not accessible. Chanchavac acknowledged that it was available less than two miles from his home. Indeed, Chanchavac‘s testimony strongly suggests that his failure to seek medical attention can be attributed instead to the fact that he was not significantly harmed, for his explanation that he did not seek medical treatment because “they ask a lot of questions” at the hospital betrays his belief that the risks of forgoing the care of a doctor were relatively slight.
The majority also implies that the court in Prasad relied significantly on the fact that the petitioner‘s attackers were “individuals in civilian clothes.” Supra at 590 n. 5. This proposition is obviously overstated, however, for there was no question that several of the assailants in Prasad were “dressed in military uniforms” and took the petitioner “to a police station, where he was placed in a jail cell.” Prasad, 47 F.3d at 339; see also id. at 341 (“Fijian army personnel and others punched, kicked, interrogated, and imprisoned Prasad....“) (Pregerson, J., dissenting).
The majority also contends that Prasad is distinguishable because, in this case, there “is evidence that the government has a continuing interest in Chanchavac.” See supra at 590 n. 5. Chanchavac, however, has presented no more evidence than existed in Prasad to establish the government‘s continuing interest. The majority notes that the Guatemalan military is rumored to have compiled a list of former residents of Chanchavac‘s hometown. See id. Despite the majority‘s dutifully ominous tone, however, Chanchavac has offered no hypothesis that the military is going to put the list to any sinister use—if the list exists at all. It is not our place to imagine the military‘s nefarious purpose ourselves and fault the BIA for declining to partake of the fantasy.
The majority makes another remarkable attempt to distinguish this case from Prasad by observing that, in that case, “many of the petitioner‘s relatives continued to reside in his home country without incident.” Id. at 339. Precisely the same thing, however, is true of Chanchavac‘s relatives. After he left Guatemala, his three brothers continued to live, apparently unharmed, in his hometown for some time before coming to the United States, and his father, mother, and sister only moved to the neighboring town less than two miles away, where they have lived “apparently without incident.”1 Id. at 339. The majority makes much of the fact that two of Chanchavac‘s more distant relatives
Failing to distinguish Prasad favorably on any specific and relevant basis, the majority resorts to the general and unsubstantiated observation that conditions in Fiji, from whence the petitioner in Prasad hailed, are not “at all analogous to conditions” in Chanchavac‘s homeland of Guatemala. See supra at 590 n. 5. With all due respect, this observation is about as helpful as noting that Prasad was decided on a different day of the week. As we have repeatedly held, the general conditions in an asylum-seeker‘s native land cannot provide the basis for his eligibility for asylum when evidence of particularized individual persecution is lacking. See, e.g., Martinez-Romero v. INS, 692 F.2d 595, 595-96 (9th Cir.1982). Moreover, nothing in the Immigration and Nationality Act sets forth a different evidentiary standard for Guatemalans than for Indo-Fijians.
II
To hold, as the court does today, that the evidence here is “so compelling, that no reasonable factfinder could fail to find” that Chanchavac has an objectively reasonable fear of persecution, Elias-Zacarias, 502 U.S. at 484, despite our having reached the opposite conclusion on starkly similar facts in Prasad, makes a mockery of the substantial evidence standard to which we must adhere. Under that standard, we must defer to the determination of the BIA unless it would be plainly unreasonable to do so. “We are not permitted to substitute our view of the matter for that of the Board.” Prasad, 47 F.3d at 340. Because the majority does so, I respectfully dissent.2
Notes
With respect to the first reason, the two applications are not contradictory; they simply focus on different aspects of Chanchavac‘s experiences. Moreover, a notary assisted Chanchavac to complete the first application, while a lawyer advised him on the second application. All that can be concluded from the different focus of each application is that the notary and the lawyer reached different conclusions as to what parts of Chanchavac‘s story provided the basis for asylum relief. See Aguilera-Cota v. INS, 914 F.2d 1375, 1382-83 (9th Cir.1990) (“A failure to state each and every ground for a claim of political asylum at the time of the initial application should not prejudice the claim.“).
All of the remaining reasons are insignificant, reveal nothing about the veracity of Chanchavac‘s fear of persecution, stem from the Immigration Judge‘s personal conjecture about what is expected behavior of a Guatemalan Indian, and most likely are attributable to the difficulties arising from the translation problems at the hearing. See Lopez-Reyes v. INS, 79 F.3d 908, 912 (9th Cir.1996) (reversing an adverse credibility finding based on the Immigration Judge‘s personal conjecture about practices in another country); Aguilera-Cota, 914 F.2d at 1382 (“[M]inor inconsistencies or misrepresentations of unimportant facts cannot constitute the basis for an adverse credibility finding.“); Damaize-Job v. INS, 787 F.2d 1332, 1337 (9th Cir.1986) (minor discrepancies attributable to language problems and failure to apply for asylum in other countries are not grounds for an adverse credibility finding).
Because I cannot agree that a reasonable factfinder would be compelled to conclude that Chanchavac has an objectively reasonable fear of persecution upon his return to Guatemala and thus is eligible for asylum, I must dissent all the more vigorously from the majority‘s determination that “it is more likely than not” that his fears would actually be realized and that he is thus entitled to withholding of deportation. Cf. Prasad, 47 F.3d at 341 (noting that the petitioner must meet a “more stringent standard” to qualify for withholding of deportation than he must meet for asylum).The dissent second-guesses Chanchavac‘s explanation for why he decided not to go to the hospital. According to the dissent, Chanchavac must have “belie[ved] that the risks of forgoing the care of a doctor were relatively slight” if his only reason for not seeking such care was a desire to avoid questions. Needless to say, Chanchavac may have believed that the risks entailed in reporting the story of his attack to hospital personnel exceeded the risks of forgoing medical care. In any event, the dissent‘s hypothesis is just the type of impermissible conjecture for which we have reversed decisions of the BIA. See Lopez-Reyes, 79 F.3d at 912 (holding that IJ‘s conclusion that the events to which petitioner testified were astonishing was personal conjecture and not a valid reason for an adverse credibility finding); Gomez-Saballos v. INS, 79 F.3d 912, 916 (9th Cir.1996) (rejecting as unreasonable the BIA‘s conclusion that prisoners would not resent a prison director because the prison director treated his inmates fairly); Damaize-Job, 787 F.2d at 1337 (finding that there was no basis for the IJ‘s assumption that a person fleeing persecution would apply for asylum in the first country in which he arrives); Del Valle v. INS, 776 F.2d 1407, 1413 (9th Cir.1985) (rejecting BIA‘s conclusion that security forces would not re-arrest petitioner because it was based on conjecture).
While we certainly condemn the attack on Prasad, it is not, in our judgment, so overwhelming so as to necessarily constitute persecution by the Fijian Government on account of political opinion or race. The attack was committed by a group of ethnic Fijians, many of whom were dressed in civilian clothes. Prasad was released after the brief detention. He did not require medical treatment. He was not charged with any crime. There is no evidence that the Fijian Government had any continuing interest in Prasad. Indeed, many of the Prasads’ relatives still reside in Fiji, apparently without incident.
Id. at 339. Chanchavac‘s experience differs in significant respects. Chanchavac was attacked by Guatemalan military soldiers, not individuals in civilian clothes. He did require medical treatment and was bedridden for two days. There is evidence that the government has a continuing interest in Chanchavac. The military has compiled a list of Xatinap residents who, like Chanchavac, have abandoned the hamlet. Amnesty International reports that, “[l]eaving one‘s community is too frequently taken by the military and their agents as a sign of links with the guerrilla,” precisely the accusation against Chanchavac. Nor were his immediate relatives able to remain in Xatinap “without incident.” His immediate family fled and two relatives who stayed behind were killed.
The dissent further suggests that Chanchavac would be safe living in a different town in Guatemala. But, as Chanchavac testified, regardless of where he lived in Guatemala, he was required to return to Xatinap to participate in the civil patrol, and according to Amnesty International, “[t]hose refusing to take part in [civil patrols] have been branded ‘guerrillas‘, and many have been subjected to human rights violations, including harassment and attacks, ‘disappearance’ and extrajudicial execution.” Moreover, “[i]t has never been thought that there are safe places within a nation when it is the nation‘s government that has engaged in the acts of punish