Lead Opinion
Roberto Antonio Aguilera-Cota petitions for review of the decision of the Board of Immigration Appeals (the “BIA”) holding him ineligible for asylum. We grant the petition for review, reverse the BIA’s decision and remand so that the Attorney General may exercise his discretion under section 208(a) of the Refugee Act of 1980, 8 U.S.C. § 1158(a) (1990) (the “Act”).
FACTS
Roberto Antonio Aguilera-Cota fled El Salvador in March of 1984. Before he fled the country, Aguilera worked for the Central Board of Elections during the 1983-1984 presidential elections. As a government employee, he had been issued a government identification card. Although he was politically neutral, he did not feel safe working for the government. In early March, Aguilera received a threatening letter with his name on it. The handwritten, anonymous note was left under his door at home, and it warned him to quit his job or pay the consequences. Aguilera destroyed the note. Several days later, an unidentified man came to his house looking for him. The man questioned his sister concerning Aguilera’s whereabouts and his job with the government. He told her he was going to return. Aguilera, fearing for his life, fled El Salvador a few days later, and on March 18, 1984, entered the United States. Aguilera’s cousin had been killed by gunshots around the time that Archbishop Romero was assassinated, and his niece had been wounded by bullets when the guerrillas and the military engaged in combat in front of his home. Before he entered government service, Aguilera’s house had been ransacked by the military at one o’clock in the morning, and he had twice been forced off buses and interrogated and detained by the army.
STANDARD OF REVIEW
We review the BIA’s factual findings under the “substantial evidence” standard. Rivas v. INS,
DISCUSSION
Under Cardoza-Fonseca v. INS,
It is not seriously contested that the petitioner has a subjective fear of persecution. However, here, as in so many similar asylum cases, the principal question we must confront is whether that subjective fear has a sufficient objective basis. To the extent that any question exists with respect to the genuineness of petitioner’s fear, it is answered by our decision regarding the objective component.
In Cardoza-Fonseca,
Aguilera’s testimony reveals that his fear of persecution was based primarily on two closely related events: In March 1984, while working for the Central Board of Elections, he received a threatening note. The typed anonymous note warned him to quit his job or pay the consequences. Several days later, a stranger came to his house looking for him. The stranger asked his sister many questions about him, including a number of questions relating to his employment with the government, and told her that he was going to return. Aguilera fled El Salvador several days later.
The BIA and the Immigration Judge (the “IJ”) committed a number of legal errors in reaching the conclusion that Aguilera did not have a well-founded fear of persecution.
First, the BIA and the IJ failed to recognize that Aguilera fell within the definition of refugee because of his imputed “political opinion.” Refugees are persons who flee their native land because of “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) (1990). Even though Aguilera did not express a “political opinion” in the typical fashion, he fits within the statutory definition of that term under the doctrine of imputed political opinion. Lazo-Majano v. INS,
As we have previously held, “In deciding whether anyone has a well-founded fear of persecution or is in danger of losing life or liberty because of a political opinion, one must continue to look at the person from the perspective of the persecutor. If the persecutor thinks the person guilty of a political opinion, then the person is at risk.” Id. Thus, it is not crucial whether the individual actually espoused the views of the government or whether he was a high level or low level employee; what is determinative is what the persecutors thought. See also Rivas,
The second significant legal error was the use by the BIA and the IJ of an improper standard in evaluating Aguilera’s testimony. As a result, they failed to give the proper weight to testimony essential to his case.
It is clear that Aguilera’s testimony concerning the threatening note and the visit by a stranger shortly thereafter constitutes “specific evidence” sufficient to “support a reasonable fear that the petitioner faces persecution.” Rodríguez-Rivera,
Nor does Aguilera’s inability to identify the precise source of the threat render his fear of persecution less justifiable; in fact, an anonymous note may cause even greater anxiety than a signed one, since in the case of an anonymous threat one cannot identify the potential source of harm and may legitimately assume, at least in a violent and chaotic society, that the party making the threat has the ability to carry it out. Moreover, the fact that the petitioner did not possess the note for the IJ to read was irrelevant. As we have noted, “refugees sometimes are in no position to gather documentary evidence establishing specific or individual persecution or a threat of persecution.” Cardoza-Fonseca,
The IJ also found that Aguilera was “not entirely credible” as a witness. We review credibility findings under a substantial evidence standard. Turcios v. INS,
The fact that an IJ considers a petitioner not to be credible constitutes the beginning not the end of our inquiry. As we have stated, “When the Immigration Judge provides specific reasons for questioning a witness’s credibility, this court may evaluate those reasons to determine whether they are valid grounds upon which to base a finding that the applicant is not credible.” Vilorio-Lopez v. INS,
Here, the IJ questioned Aguilera’s credibility because Aguilera’s oral testimony included information not set forth in his asylum application. Aside from the IJ's complaint that Aguilera had no proof that the threatening note had been delivered, the only basis for the credibility determination was the IJ’s observation that Aguilera had failed to list on his application the two collateral incidents involving his relatives. The IJ’s finding—if indeed a statement that an individual is “not entirely credible” may be termed a finding—is not supported by substantial evidence. The requisite nexus is lacking. Aguilera’s failure to file an application form that was as complete as might be desired cannot, without more, properly serve as the basis for a finding of a lack of credibility. In short, the basis for the IJ’s finding does not meet the test of legitimacy. See id.
Forms are frequently filled out by poor, illiterate people who do not speak English and are unable to retain counsel. Under these circumstances, the IJs cannot expect the answers provided in the applications to be as comprehensive or as thorough as they would be if set forth in a legal brief. In Martinez-Sanckez v. INS,
Clearly, Aguilera did not lie or misrepresent the facts on his asylum application. The IJ offered no explanation why Aguilera’s failure to mention the two collateral incidents in his application made him “not entirely credible,” since there were no contradictions between the information set forth in the application and his testimony. At the hearing, Aguilera testified that his cousin was killed by gunshots around the time that Archbishop Romero was killed, and that his niece was wounded by bullets when the guerrillas and the military engaged in combat in front of his home. While he did not specifically refer to these two incidents in his application, he did subsequently submit copies of his cousin’s death certificate and a newspaper article describing the incident involving his niece to support his oral testimony. Nothing suggests that the petitioner changed his account of the events between the time he completed the asylum application and the time he gave his oral testimony. A failure to state each and every ground for a claim of political asylum at the time of the initial application should not prejudice that claim, and particularly not where the petitioner subsequently provides documentation to
Moreover, on a matter as important as this, if an asylum applicant’s plea is to be rejected and he is to be returned home — possibly to face renewed threats to his life — simply because an IJ doubts his credibility, the IJ must make a more explicit and direct finding that he is untruthful than was made here. The mere statement that a petitioner is “not entirely credible” is not enough. As we did in Turcios, “[w]e find that the statement of reasons given for rejecting [Aguilera’s] detailed testimony inadequate and that substantial evidence does not support the adverse credibility finding.” Turcios,
Other than the minor omission and the other insignificant reasons given by the IJ, there is in the case before us “a ‘total absence of contradictory evidence’ in the record as a whole that potentially undermines [the petitioner’s] credibility.” Damaize-Job,
It is clear from a reading of the IJ’s opinion that wholly aside from the credibility question, he found Aguilera’s testimony insufficient to establish eligibility for asylum. We discussed the IJ’s reasons for reaching that conclusion earlier, and pointed out the legal errors on which the conclusion was premised.
We have reviewed the record in full, and there is no evidence which suggests that Aguilera does not qualify for refugee status. Or to put it conversely, the record conclusively demonstrates that Aguilera is eligible for asylum relief. As in Blanco-Comarribas v. INS,
Here, as in Bolanos-Hernandez,
REVERSED AND REMANDED.
Notes
. To the extent that the Supreme Court declined "to set forth a detailed description of how the 'well-founded fear' test should be applied,”
. Prior to these incidents, the petitioner had experienced other episodes that caused him concern. Before he entered government service, his home was ransacked by the military at one o'clock in the morning. They searched for weapons, subversive flyers, and propaganda materials throughout the house. Aguilera was not at home during the raid. Thus, Aguilera, in addition to being a target of persecution by the government’s opponents, may also have been a subject of harrassment by the government itself. Aguilera also mentions two other incidents in which he was forced off buses and interrogated and detained by the military, but we do not consider them particularly relevant to his claim for asylum. A reasonable interpretation of the latter two incidents would suggest only that Aguilera might, if his luck ran out, be pressed into military service some day.
. Moreover, a strong case can be made that persecution based on status as a government employee is covered by another phrase in the statute as well. Although the association or membership clause refers specifically to social groups, the consequences of affiliating oneself with an employer that is anathema, from a social or political standpoint, to armed political rebels would seem clearly to constitute the type of danger contemplated under the refugee provision. See 8 U.S.C. § 1101(a)(42)(A) (1990).
. Because the BIA affirmed the determination of the IJ with only a conclusory discussion of the legal issues, we assume it generally agreed with the IJ’s discussion of them. Accordingly, we focus on the IJ’s decision.
. The IJ also erred by improperly discounting collateral evidence which was clearly relevant to Aguilera’s application. The IJ found it “difficult to understand” how the death of Aguilera's cousin, who was merely one of "a number of people killed at the same time," and the injury of his niece could possibly affect Aguilera. In addition to the emotional and personal toll these incidents inflicted on the petitioner, the violence was critical background evidence of the general conditions in his country. ”[G]eneral information concerning oppressive conditions is relevant to support specific information relating to an individual’s well-founded fear of persecution." Zavala-Bonilla,
. Whether a witness is evasive can be determined objectively from an examination of the record. Demeanor evidence may present a somewhat different problem. We need not consider here, however, how we review an IJ's determination regarding a petitioner’s demean- or. In this case, neither the IJ nor the BIA relied on any observations regarding Aguilera’s demeanor.
. We have previously held that a petitioner's admission that he lied to the INS about his citizenship does not support a negative credibility finding. Turcios,
. The government contends that the petitioner failed to raise the credibility issue before the BIA and thereby waived that issue. We disagree. The petitioner's challenge to the IJ’s conclusion that his testimony failed to carry the burden of proof is sufficient to comprehend the credibility component of that finding. Moreover, since petitioner's application was supported almost exclusively by his own testimony, there would obviously be no purpose at all to an appeal if it did not include a challenge to the credibility determination. In any event, the parties are in agreement that the BIA adopted the IJ’s finding that the petitioner was "not entirely credible.”
. As noted supra, the BIA's opinion appears to accept generally the IJ’s legal and factual analy-ses, and neither party suggests otherwise. We also note that the BIA ruled against petitioner after a plenary review of the record and the issues, having first decided to deny the INS’ motion for summary affirmance.
. In Cardoza-Fonseca,
Dissenting Opinion
dissenting:
8 U.S.C. § 1158(a) provides that the Attorney General may in his discretion grant asylum to an alien who qualifies as a “refugee” within the meaning of 8 U.S.C. § 1101(a)(42)(A) (1990). Section 1101(a)(42)(A) defines a “refugee” as, in relevant part, an alien “who is unable or unwilling to return to” his country of nationality “because of persecution or a well-founded fear of persecution on account of ... membership in a particular social group, or political opinion.... ” To meet this standard, Aguilera-Cota must show his fear of persecution is “both subjectively genuine and objectively reasonable.” Blanco-Comarribas,
Substantial evidence supports the Board’s finding that Aguilera-Cota failed to establish a well-founded fear of persecution. Single episodes of the ransacking of
Moreover, the Immigration Judge made a specific adverse finding as to Aguilera-Cota’s credibility, finding that “as a witness, [he] is not entirely credible.” This finding extends both to whether his “fear” was genuine as well as to whether it was objectively reasonable. The majority opinion sweeps this finding away, paying only lip service to the requirement that we 'grant substantial deference to a trier of fact who rejects a witness’s positive testimony because it lacks credibility.
In his written opinion of June 27, 1986, the Immigration Judge said the following:
Finally, this so-called note that the respondent allegedly received while he was working for the government is not a basis for a well-founded fear of persecution. First of all, it is difficult to believe why anyone would be interested in a low-level employee of the El Salvadoran government and would be interested in serving him with any note to quit his employment. Respondent, of course, has no idea who slipped the note under the door. The note was never shown to anyone else. We only have the respondent’s testimony that he did in fact receive a note. Respondent as a witness is not entirely credible. His testimony in the hearing varies from the information submitted on the application for asylum. He mentions incidents in his testimony that are not brought out or even mentioned in the application for asylum. ... The man that came to his home looking for him in his absence (almost always it seems that these things happen in respondent’s absence) does not provide us with sufficient information to determine who was looking for him or why. This so-called stranger apparently never returned to his home because his family continued [sic] to reside in the same home today. It is difficult for me to see after a period of more than two years why respondent would have any fear if he were to return to El Salvador today. (Emphasis added)
What more was the Immigration Judge to do? He cited prior inconsistent statements, reasons to believe aspects of Aguil-era-Cota’s testimony were made up, apparently phantom strangers and disappearing bearers of notes, and claims that on their face are hard to swallow. Plus, an alternative explanation for his flight appears on the record: he wishes to avoid military duty. In my view, the majority opinion inappropriately substitutes its view of the witness’s credibility for that of the Immigration Judge, and it does so, with all re
I would affirm the decision of the Board of Immigration Appeals.
. It is also noteworthy that the United States Department of State’s Bureau of Human Rights and Humanitarian Affairs issued an advisory opinion to the effect that Aguilera-Cota failed to establish a well-founded fear of persecution in El Salvador.
