*1 than of business was Minnesota rather
state where executive and administrative located), aff'd,
offices
(8th Cir.1984). paucity Given the of evi Capitol,
dence the record about even augmented judicially
when it is
noticed existence of home office outside
Arkansas, I do not clear error in the find Capitol
conclusion that failed to di
versity citizenship. observed, may
As the district court it that Capitol
well be could demonstrate
easily principal place that its business
outside Arkansas. It should remain free litigation. Capitol
to do so in other But requisite showing
failed to make the in this
case, good and I see no reason to strain judicial the doctrine of
both notice and the diversity
“total activities” test to create
jurisdiction af- over this lawsuit. would court, judgment
firm the of the district respectfully
and I dissent.
Hugo BELLIDO; Ivan Miriam Puna-
Villaneuvam, Petitioners, Attorney ASHCROFT,
John General of States, Respondent.
the United
No. 02-4076. of Appeals, States Court
Eighth Circuit.
Submitted: Feb. April
Filed:
HEANEY, Judge. Circuit wife, and his Miriam Hugo Ivan Bellido Puna-Villanueva, the decision of appeal (BIA) Appeals Immigration the Board of denying asylum applications.1 their Belli- that he cannot return to Bo- do maintains livia, country origin, because of the by threat of he faces the Boliv- prior leadership due to his argues role in a railroad union. He also improperly BIA failed to consider claim for relief under the Convention BIA Against Torture. find that by granting asylum ap- erred and decline to consider plication, whether by evaluating BIA erred also Against Torture claim. Convention
BACKGROUND Background I. Factual Oruro, Bolivia, graduat- after Bellido In high school he went ed for the Bolivian railroad. started work messenger, eventually reaching out as responsible in which he was for position railroad accidents. After investigating years being what he describes several the Railroad “passive” member of as a (RFU), part he became Federation Union leadership union of the oper- parties Different Conflicts Bellido’s rise to the RFU and ate within leadership position precipitated was argument on be- presented who Counsel party election of his the internal Thai, Steven C. appellant half of the was represented leadership. The RFU union Minnetonka, MN. members, 4,000 3,000 and between argument on be- who Counsel top him one of the position made Braun- appellee half was Joshua in the of the union twenty-five members stein, attorney Washington, DC. Additional Conflicts, Secretary of country. As the McKay. was Leslie appearing the brief grievances resolving responsible employ- and between HEANEY, SMITH, employees BYE, between Before ees and the Judges. Circuit application. her husband's asylum application is based on 1. Puna-Villanueva's lido and Puna-Villaneuva concede that thirty forty anti-government demonstra- they deportable. are During January march in protest tions. spending years After seven and two army arrested Bellido. The States, years, respectively, in the United *3 weeks, army along detained him for two Bellido and Puna-Villanueva’s removal other union with five members. No proceedings April commenced on 1996. charges against during were filed him They requested upon suspen- relief based incarceration; nor was he afforded deportation,2 asylum, withholding sion of chance speak judge for his freedom to a deportation, voluntary In departure. and experi- or to officials. Bellido also claims, support of Bellido physical custody. enced abuse while in evidence attesting up- his status as an released, finally army When he was right society member of American and to captain warned Bellido that if he was in situation he endured Bolivia: testi- found in participating protests again, mili- mony from employer pastor Bellido’s and tary kill members would him. management that detailed rise to a August Bellido position at Service Master and his commit- Life, in protest involving the March for involvement; ted church the deed from the 60,000 people in a 237 kilometer walk to purchased Minneapolis house he in a sub- Paz, La Paz. As the marchers neared La urb; documentation of Bellido’s member- members, government arrested union union; ship in Bolivia’s railroad documen- threatening open fire on the crowd. describing tation labor unrest Bolivia hiding nearby Bellido was forced into at a it; response to and days railroad office for several to avoid Bellido’s own about past ex- march, Following arrest. govern- periences in immigration Bolivia. The Bellido, ment forbade union activities. (IJ) judge evaluated the evidence and ulti- retaliation, government fearful of lived a mately denied asylum application. Bellido’s lifestyle transient infrequently premised IJ’s decision was on several returning to his hometown for over two 1) incredulity observations: of Bellido’s years. Although people questioned his 2) testimony; insufficiency of the cor- family whereabouts, as to his 3) evidence; roborating long ab- family during was not harmed his absence. 4) Bolivia; sence from family’s and relatively harassment-free life Bolivia Background II. Procedural departure. since his gain Bellido used a tourist visa to entry The BIA found Bellido had failed to to the United States from Bolivia on Feb- past persecution establish or a well-found- ruary At that time he was mar- Velasco; ed fear of Specifically, future ried Norma he divorced Velas- BIA stated that the harm expe- co 1994 and she Bellido returned to Bolivia with significant enough their rienced was not to qual- two children. Puna-Villanueva en- ify persecution, tered the United that his Bolivian States on December injured overstayed during and her was not his time in tourist visa. States, married, Bellido and Puna-Villanueva and that and they have two United against States citizen chil- never took action Bellido. The Jonathan, old, together: dren BIA years credibility now 7 not mention did the IJ’s Melanie, years now findings affirmance, almost 6 old. Bel- as a rationale for its Only eligible suspen- deportation Bellido was to claim sion of relief. omitted); conjunc- F.3d Perinpanathan, tion adopt the IJ’s decision but did (“This immigration court to an defers tion its observations. judge’s credibility finding the find- where argues pre- that he appeal, On supported by specific, cogent rea- upon which sented substantial (citation son disbelief.” internal him granted BIA should omitted)). quotation marks duty to the IJ had a argues further Against Torture a Convention evaluate Evidence B. Substantial that the BIA erred sponte, claim sua amply proven We believe Bellido has recognizing this. true
asylum claim. As is often the
cases,
pro-
Bellido’s own
*4
ANALYSIS
complete
of
vides
most
account
A.
of Review
Standard
at
of
persecution he suffered
the hands
Attorney
may grant" Bolivian
The IJ discounted
General
testimony
a
qualifies
citing
implausibilities
as
to
that
asylum
applicant
when the
a
persuade
being legitimate.
A
is
as
do not
us as
“refugee”
defined
“refugee.”
unwilling to re
person who is “unable or
The IJ noted that
did not detail
country
of
turn
...
because
[his home]
to
his arrest or the death threat
from the
per
a
persecution or well-founded fear
military on
As
asylum application.
a
1101(a)(42)(A).
§
8 U.S.C.
secution.”
matter,
impor
preliminary
we think it is
must be
fear of
applicant’s
preparer
tant to note that a
aided Bellido
objectively reasonable.
genuine and
subjectively
filling
asylum
out
Cer
application.
v.
337
io-Saquil
Melec
from
may
tain facts
have been omitted
(8th Cir.2003).
983,
appli
986
If the
F.3d
itself because Bellido was unclear as
form
persecution,
then
past
cant can establish
provide
to the level of detail he should
due
presumption
he is entitled
of well-
cultural
Per
language
barriers.
Perinpana
of persecution.
founded fear
they
or Belli-
haps
were lost
translation
(8th
INS,
594,
Cir.
than v.
310 F.3d
598
of detail he
do was unclear as
level
2002).
not
defined
“Persecution” is
asked
provide. When
form
di
should
Rather, it
does
concept
term.
is a fluid
that
arrested,
rectly whether he had been
de
necessarily
require
applicant
tained,
interrogated,
or
Bellido answered
or
or freedom has been
that
life
why
see
in the affirmative. We fail to
directly
v.
jeopardized.
will
See Bereza
be
serve
Bellido’s omission
details should
(7th Cir.1997).
INS,
468, 472
115 F.3d
entirety
testimony.
to undermine the
(2d
INS,
232
288
asylum
BIA’s
Diallo v.
F.3d
review the
determina- See
Cir.2000)
disparities
that
verify
(stating
based
not all
tion to
that it was
on substan-
“
evidence,
credibility
if
lead to an adverse
find
tial
and reverse
‘the evidence
should
“testimony
ing, especially
applicant’s
no
fact
when
compelling
was so
reasonable
consistent, rational, and be
generally
fail
requisite
finder could
to find
”
INS,
lievable”);
904
Perinpanathan,
310
Ceballos-Castillo
persecution.’
(9th Cir.1990)
INS,
(distinguishing
(quoting
597
Feleke v.
118 F.2d
520
F.3d at
(8th Cir.1997)).
incidental mis
inconsequential,
an IJ
598
When
between
F.3d
that involve
we
not dis-
“
and inconsistencies
credibility findings,
makes
do
statements
claim). Instead,
findings
they
‘legiti-
if
the core of the
turb the
have a
light
of the
mate,
should be viewed
Nyirenda
articulable basis.’”
Cir.2002) (cita-
so,
INS,
done
evidentiary record. When
279 F.3d
entire
experiences
Bellido’s version of his
in Bo-
Melecio-Saquil,
(noting
that an
does
are
livia
consistent and believable.
always
corroborate his own
Bellido introduced into evidence his un-
(stat-
Diallo,
testimony);
demonstrate his rose to find Bolivia I past persecution. really the level of After re- don’t know how going it’s viewing examining affect me at time. I really record the evi- this don’t above, know, dence as we don’t any guaran- have done we cannot because I have agree illegal arrest, BIA that an going happen tees of what’s .... I accompanied by a death threat don’t anything from a have Bolivia ... I house, home, member, don’t I don’t have a furniture, subsequent individual, I I job, active search don’t have a don’t have does not rise level of I anything. don’t have granted asy- must to be It apparent from this and other com Accord, INS, lum. v. Osorio F.3d 1017 ments Bellido’s statement that he was (2d Cir.1994) (finding a eligi- union leader principally concerned about his economic ble for because received death However, prospects. a fear of economic threats, his union members of were kid- hardships does not establish a well-found murdered, napped and and he continued I.N.S., persecution. Nyonzele ed fear of his union after govern- involvement (8th Cir.1996) 83 F.3d (citing crackdown). ment INS, Minwalla v. Cir.1983)). CONCLUSION respectfully therefore dissent. substantial evidence this case supports the conclusion Bellido and
his wife have a perse- well-founded fear of
cution and therefore granted should for proceedings We remand con-
sistent opinion. with this America, UNITED STATES
SMITH, Judge, Circuit dissenting. Plaintiff-Appellee, record this case contains substan- tial supporting the Board’s deci- *7 deny
sion to petitioner. PHILLIPS, Defendant-Appellant. David are obligated to affirm the BIA’s conclu- sion eligible America, that an alien is not for United States unless Plaintiff-Appellant, the alien shows that the record supports only reversal but compels Navarijo-Barrios it. Phillips, Defendant-Appellee. David Cir.2003). Petition- er’s considerably evidence is less than 02-30035, Nos. 02-30046. compelling. assuming Even that Bellido Appeals, Court of States past persecution established upon based Ninth Circuit. his detention in for union protest activities, the record does not show that Argued and Submitted Feb. 2003. the petitioner possessed a well-founded Decided Jan. of future Regarding his 6,May Amended possible return to Bellido stated: really any guarantees don’t have I’m going to be able to— in freely