Silvia RIVERA-MORENO, a.k.a. Vilma Aracely Argueta v. IMMIGRATION AND NATURALIZATION SERVICE
No. 98-71463
United States Court of Appeals, Ninth Circuit
May 23, 2000
213 F.3d 481
Submitted Dec. 9, 1999.
Clearly, Appellees came forward with sufficient evidence of ostensible authority to entitle them to a directed verdict if the evidence went uncontroverted at trial. To counter the evidence that Appellees produced, CAR merely offered the declaration of its General Manager, Clifford Riggins, who asserted that he has spent forty years in the trucking industry and is “not aware of any law that says a truck driver can bind his trucking company as to a waiver of its claims for transportation charges as a common carrier under federal law.” The district court found that Riggins‘s declaration did not raise a question of fact concerning the drivers’ apparent authority to waive the Carriers’ claim for freight charges against Appellees. The district court reasoned that CAR failed to raise any material question of fact because the Riggins declaration addressed the issue of whether a specific law authorizes drivers to sign waivers on their carriers’ behalf; an issue that is obviously irrelevant to whether industry custom and practice vests drivers with apparent authority to bind their carriers to terms in bills of lading and waivers of the right to collect freight charges from consignors and consignees.
We agree with the district court that CAR‘s supposed evidence refuting Appellees’ showing of the drivers’ ostensible authority did not set forth specific facts showing that there is a genuine issue for trial. Riggins‘s affidavit, the only evidence that CAR submitted, is simply not significantly probative evidence sufficient to defeat Appellees’ motion for summary judgment.
III. CONCLUSION
In sum, we affirm the district court‘s judgment that the parties lawfully allocated liability for the freight charges through the “Waiver of Subcontractor” forms and that the Carriers’ drivers had ostensible authority to sign the waivers.
Silvia RIVERA-MORENO, a.k.a. Vilma Aracely Argueta, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 98-71463
United States Court of Appeals, Ninth Circuit.
Submitted Dec. 9, 1999.*
Filed May 23, 2000
James A. Hunolt, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for the respondent.
Opinion by Judge ALDISERT; Concurrence by Judge MICHAEL DALY HAWKINS.
ALDISERT, Circuit Judge:
The principal question for decision is whether retaliation against a nurse, who refused to join a guerrilla movement to give medical care to their wounded, constitutes “persecution ... on account of political opinion” under
Silvia Rivera-Moreno, a.k.a. Vilma Aracely Argueta, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA“) denial of her application for asylum and withholding of deportation. She claims she is eligible for asylum because she is unable or unwilling to return to El Salvador “because of persecution or a well-founded fear of persecution on account of ... political opinion.” Id.
This court follows the doctrine of “hazardous neutrality,” in which a lack of political opinion may constitute a political opinion for purposes of the INA. We define hazardous neutrality as “show[ing] political neutrality in an environment in which political neutrality is fraught with hazard, from governmental or uncontrolled anti-governmental forces.” Sangha v. INS, 103 F.3d 1482, 1488 (9th Cir. 1997). This court has explained the elements of hazardous neutrality:
We have held that political neutrality can be a political opinion under the Act. See, e.g., Maldonado-Cruz v. INS, 883 F.2d 788, 791 (9th Cir. 1989); Arteaga v. INS, 836 F.2d 1227, 1231-1232 (9th Cir. 1988)]. “Political neutrality” may include the absence of any political opinion. Arriaga-Barrientos v. INS, 937 F.2d 411, 413 (9th Cir. 1991). An applicant can establish his political neutrality by pronouncement, id. at 414; Bolanos-Hernandez v. INS, 767 F.2d 1277, 1286-1287 (9th Cir. 1984)], or by his actions, Ramos-Vasquez v. INS, 57 F.3d 857, 863 (9th Cir. 1995) (applicant deserts rather than illegally shoot deserters.)
We adhere to this precept1 notwithstanding the statement of the Supreme Court in 1992:
Elias-Zacarias appears to argue that not taking sides with any political faction is itself the affirmative expression of a political opinion. That seems to us not ordinarily so, since we do not agree with the dissent that only a “narrow, grudging construction of the concept of ‘political opinion,’ ” ... would distinguish it from such quite different concepts as indifference, indecisiveness, and risk averseness.
INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992) (emphasis added).
I.
Rivera-Moreno worked as an assistant nurse at a local health unit in Perquin, El Salvador. Her first contact with the guerrillas was in 1980, when they came into her clinic and took medicine from her at gunpoint. In 1981 the guerrilla forces took over Perquin and demanded that she join them and give medical care to their wounded. She refused and explained in her testimony that she told them: “I didn‘t belong to any party. My rule was to help anybody. It didn‘t matter if it came from the guerrillas or the army or any group.” E.R. at 34. Regardless, they forced her to care for their wounded for nine days, at which time she escaped and moved to the town of San Miguel.
In 1989, eight years after her kidnaping in Perquin, guerrillas took over San Miguel and discovered documents that indicated that Rivera-Moreno was a nurse. The guerrillas again pressured her to join them, but she refused. This time she did not repeat her statements of neutrality expressed eight years earlier. She testified that “[the guerrillas] told me that they needed me very much and I refused to accompany them. I opposed that.” E.R. at 35. The record contains no evidence to suggest that the guerrillas in San Miguel knew of her political neutrality. The San Miguel guerrillas retaliated against her for refusing to help them by destroying her house with a bomb. They told her that the bomb was “just the beginning,” E.R. at 36, and again forced her to care for their wounded. She escaped after three days of captivity.
Rivera-Moreno returned to San Miguel two years later, at which time the guerrillas left her a handwritten note demanding that she return to Perquin to assist them. She ignored the note and then received a second typewritten note, which demanded that she report to Perquin within 15 days or her life would be in danger. About nine days after receiving this note, she fled to the United States on April 27, 1991.
Two days after arriving here, the Immigration and Naturalization Service (“INS“) initiated exclusion proceedings and charged her with being excludable under
The BIA‘s jurisdiction arose under
II.
Withholding deportation is distinct from granting asylum. Withholding only bars deporting an alien to a particular country; asylum permits an alien to remain in the United States and to apply for permanent residency after one year. INS v. Aguirre-Aguirre, 526 U.S. 415, 415 (1999). Asylum is granted at the discretion of the Attorney General if the alien qualifies as a “refugee.”
The term “refugee” means ( ] any person who is outside any country of such person‘s nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that 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....
III.
An applicant may qualify as a refugee if she can show she was a victim of persecution or has a well-founded fear of persecution upon return to her home country. See
It is clear that persecution for failure to contribute nursing services is not a protected ground under
IV.
To qualify for asylum an applicant “must tie the persecution to a protected cause ... [and] show the persecutor had a protected basis ... in mind in undertaking the persecution.” Canas-Segovia v. INS, 970 F.2d 599, 601 (9th Cir. 1992). We are persuaded that Petitioner failed to demonstrate a nexus between her expression of neutrality at Perquin in 1981—an affirmative expression of political opinion—and the subsequent bombing of her house eight years later in San Miguel because she refused to deliver nursing services. An expression of a political opinion must not be considered in vacuo; it must be a direct and immediate cause of the fear of persecution, although it need not be the only cause. See Borja, 175 F.3d at 736.
The record contains no evidence that Petitioner expressed her political neutrality in the eight years between the incident in Perquin and the retaliatory action in 1989. Under these circumstances we cannot conclude as a matter of law that the immigration judge was unreasonable in finding that the guerrillas were threatening her to try to coerce her into donating her skill towards their forces. Her conduct was not an expression of any political nature, and there is no evidence to indicate that the guerrillas perceived her to be politically opposed to them but that they simply wanted her to give her skills to healing and nursing their forces. E.R. at 22. The BIA agreed with the IJ‘s findings of fact: “We concur in the Immigration Judge‘s decision that the applicant‘s testimony demonstrates that the guerrillas were interested in her because they wanted her to treat wounded individuals, not because of her actual or imputed political opinion or for any of the other enumerated grounds....” E.R. at 3. Here, too, we cannot conclude that this was unreasonable as a matter of law.
The IJ‘s findings of fact are supported by substantial evidence. When Petitioner refused to join the guerrillas in 1981, she told them that she “didn‘t belong to any party,” and that her “rule was to help anybody.” E.R. at 34. However, she neither testified nor presented evidence to show that she was subsequently persecuted by the Perquin guerrillas in response to that statement. Her testimony is not so persuasive as to compel the conclusion that they retaliated against her because of her political neutrality. Although she was
The San Miguel guerrillas attempted to recruit Petitioner in 1989 because they found documents that showed she was a nurse. They did not pursue her because of her neutral stance. See E.R. at 34-35. She did not express any political views, neutral or otherwise, to the guerrillas who attempted to recruit her in 1989. Thus, Petitioner presented no evidence to suggest the 1989 guerrillas knew she was neutral; they only knew that she refused to contribute her nursing skills to them. They bombed her home in retaliation for her refusal to deliver these services to them, not because of her political beliefs.
Because we hold that she was not persecuted on account of political opinion and does not satisfy the requirements for asylum, she necessarily failed to meet the higher standard for withholding of deportation. See Kazlauskas, 46 F.3d at 907.
*
Substantial evidence supports the findings that Rivera-Moreno was not persecuted on account of political opinion.
DENIED.
MICHAEL DALY HAWKINS, Circuit Judge, specially concurring:
Quite frankly, the disposition of this appeal requires no more than an unpublished memorandum, as the result reached, with which I agree, involves a routine application of our asylum law. Judge Aldisert, however, has chosen to write an opinion that applies our law while casting doubt on its legitimacy. The opinion suggests that our court‘s established law of “hazardous neutrality” conflicts with the Supreme Court‘s decision in Elias-Zacarias. See Majority Opinion at 5405-06 (“We adhere to this precept notwithstanding the statement of the Supreme Court in [Elias-Zacarias].“). However, we have already noted that our neutrality doctrine, though questioned in Elias-Zacarias, was not overruled. See Sangha v. INS, 103 F.3d 1482, 1488 (9th Cir. 1997).
The Supreme Court said in Elias-Zacarias that the failure to take sides in a dispute is not “ordinarily” the expression of a political opinion. See INS v. Elias-Zacarias, 502 U.S. 478, 483 (1992). But it did not state that an affirmative expression of neutrality could not amount to a political opinion especially “in an environment in which political neutrality is fraught with hazard.” Sangha, 103 F.3d at 1488. This latter circumstance is the basis for our “hazardous neutrality” doctrine, and it is inaccurate to suggest that the doctrine conflicts with Supreme Court precedent.
The law of our circuit, therefore, remains firmly in place. Our duty while writing the opinions of this circuit is to apply that law, not to cast doubt on its viability. If an individual judge dislikes our precedent, he or she may so state in a separate opinion; it is inappropriate to express such individual concerns, however subtly, in an opinion that purports to speak for our court.
On the merits of the case, the majority opinion implies that Rivera-Moreno‘s nine-day forced recruitment immediately following her expression of neutrality did not constitute persecution. See Majority Opinion at 487 (“Although she was forced to contribute her nursing skills to them for nine days until she escaped, the Perquin guerrillas did not pursue her and they did not punish her.“). We have held, however, that forced recruitment by a revolutionary army is “a deprivation of liberty” that “would amount to persecution.” Arteaga v. INS, 836 F.2d 1227, 1231-32 (9th Cir. 1988). I thus would hold that the forced recruitment, as well as the attempted recruitment by bombing and threat eight years later, qualified as persecution.