Teresita Moral BORJA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
175 F.3d 732
9th Cir.
1999
Check Treatment

*1 compel consider Briones’s The record this case does not Even if we were to findings that of the BIA motivated, a conclusion the he “still politically actions wrong. presents The record no evi- ... that the record com- has to establish suggest to threatened dence NPA ‘well- that he has a pels the conclusion Briones’s life because he held perse- guerillas fear’ that the will founded Rather, antithetical to its opinions own. political opinion, cute him because that the evidence shows that the NPA was gov- his” acts as a rather than because of to off an attempting shut information 483, at informer. Id. S.Ct. ernment exceedingly damaging source that was (emphasis in Briones did original). operations against its and to retaliate suggesting present not man who had wreaked so much havoc to guerillas erroneously the believed Indeed, plans. the ac- even politically based. informant service was knowledges that is a case of threat- “[i]t Moreover, 812. See id. retaliatory causing ened death for death.” certainly NPA for- though even the facts, I simply say On these cannot by at- warding political agenda its own “no reasonable factfinder could fail to find” tempting spy, appears to rid itself of a was on account of generalized to be “the mere existence of a political opinions. Briones’s ‘political’ inadequate motive” and “is deny for review and proposition ... that [Briones] establish affirm the decision of BIA in this case. fears on account of 101(a)(42) § opinion, requires.” Id.

(emphasis in original). majority interestingly ignores pres finding

BIA’s that Briones failed to Philippine govern

ent evidence that unwilling

ment would be either unable or protect him or that he ever such protection. per court This has held BORJA, Petitioner, Teresita Moral may secution either “inflicted v. government by persons organizations or or AND IMMIGRATION government which is unable or unwill SERVICE, NATURALIZATION ing Sangha control.” v. F.3d Respondent. 1482, 1487 also Kor ablina No. 97-70272. Cir.1998) (“Persecution may be found Appeals, United States Court of cumulative, specific instances of violence Ninth Circuit. and harassment an individual ... toward only by government, but also Argued and Submitted Oct. 1998. group government declines to con April Filed trol.”); Singh v. 967 n. (9th Cir.1998) (“[PJrivate individuals that government unwilling is unable or someone.”). persecute control can Be government,

cause the is not the showing

Briones had the burden of Philippine government was “unable or BIA

unwilling” to control the NPA. As the found,

correctly present Briones failed to

evidence to this effect. *2 Philippines. argues that

in her native She compels the unchallenged testimony her, persecuted part-on did so-at least opinion; and she account *3 qualifies maintains that this asylum. our laws for her under analysis we with her Because evidence, grant we compelling effect of her for this review. I Han, Jobe, Hilary A. Law B.

Robert 22, 1992, Jobe, Francisco, September armed NPA On B. of Robert San Offices Borja while she California, operatives confronted Ms. Moral petitioner for Teresita working parents’ in her business and Borja. factory. These men were interested shoe Keener, Immigra- E. Office of Donald objectives. accomplishing two related Department Litigation, United States tion Justice, D.C., respon- First, join for Washington, they asked Ms. refused, and Naturalization Ser- Immigration organization. dent She telling “pro-government” vice. them she was

and that she would not enlist. Because facts of this confrontation are essential conclusion, quote to our verbatim from testimony: Gadda) hap- Q. (By Attorney What HUG, Judge, and Before: Chief you pened [you after told them were SCHROEDER, BROWNING, join]? pro-government and refused to PREGERSON, REINHARDT, (By Borja) They get A. Ms. mad at me. TROTT, KLEINFELD, O’SCANNLAIN, then I They pointed gun at me and HAWKINS, THOMAS, and me be- thought they going were to kill SILVERMAN, Judges. Circuit I argued cause I with them that don’t TROTT; by Judge their, Dissent Opinion organization I want don’t their Judge they people, O’SCANNLAIN. kill women and because they get thought mad and I children TROTT, Judge: Circuit they going They point- to kill me. (“NPA”) People’s Army is a The New gun just at me and I told them ed violent, revolutionary group Communist I taxes I needed to so that will if actively opposes Philippine gov- which they would not kill me. add- The NPA has a well-document- ernment. ed) violence, including history ed demanding responded by The NPA opponents. The 1995 the murder 3,000 pesos “revolutionary tax- De- Country Profile issued our State es”: partment says that “the NPA ... is known INS) Q. Thompson Mr. for the Did (By engage killings and other violence.” (sic) you for after they you ask testimony immigration found down-you join them? turned refused credible, consistent, judge forthright, to be Borja) (By A. Yes. petitioner respects,” and “sincere in all 3,000 pesos? Q. And that amount was Teresita Moral related series encounters with the NPA Manila A. Yes. hostile 3,000 back, if I pesos go them the am Q. you pay Did kill immediately? they sure will me.” Yes, I did. A. left, II telling

The men payment another monthly return posture In the this case called the that she would be killed us, comes to we must answer one central “authorities,” police apparently or question: Does the evidence Ms. meaning military. The men surfaced presented compel to the BIA the conclu every month to collect on their demands. subjected sion that the NPA perse her to believed were armed on cution on account each occasion. Immigration under Nationality *4 1993, February In the NPA doubled its 1101(a)(42)(A) (West §§ Act. 8 U.S.C. 6,000 pesos. demand to When Ms. Supp.1998).1 See INS v. said she did not have amount of mon- 478, 479, 812, 502 112 ey pay, agents and could not the NPA in L.Ed.2d 38 An answer the affir her, angry, put gun became beat to her mative eligibility asylum. entitles her to for head, and slashed her with a knife. This The contrary BIA’s determination “can be displayed which she on wound left scar if presented by reversed the evidence at her request immigration judge Borja] was such that a [Ms. reasonable attack, hearing. suspending After their factfinder would have to conclude that the departed, they her telling the men would requisite persecution fear of existed.” Id. money. if get murder her she didn’t 481, However, at 112 S.Ct. 812. as the order, sought short medical Second Circuit observed in Osorio v. arm), (including treatment stitches for her (2d Cir.1994), “[t]he house, hiding moved out of her went into plain meaning phrase ‘persecution of the (“I they might was so scared that time political opinion,’ on account of the victim’s me”), sought find me and Mil a visa to persecution ac solely does not mean country. flee the count of the victim’s is, hearing, attorney At her asked her That the conclusion that a cause of amnesty she was aware of the recent is economic does not necessari government supposedly arranged ly imply had there cannot exist other arrange- persecution.” the NPA. causes of the As the United acknowledged She ments, said, working but “it’s not because Nations’ Handbook on Procedures and Determining Refugee the rebels ... wouldn’t to condi- Criteria Status for attorney says, appears sight Her then her if at first to be “[W]hat tions.” asked moving part primarily depar had to another an economic motive for considered escape may reality in Philippines the NPA’s threat. ture also involve was, “No, element, political opin response Her considered be- be the may him everywhere expose the NPAs are ions of the individual that cause consequences, vast serious rather than his ob intelligence have this network people.” jections can She concluded her to the economic measures them find Osorio, (quoting “I like to selves.” 18 F.3d at 1029 testimony plea: with this 62-64).2 quote §§ in at To beg please stay Your Honor to let me U.N. Handbook (9th Cir.1998); Sangha government NPA is not the of the Phil 1997). Nevertheless, v. Cir. cogniza ippines. the Act can emanate sections under ble "provides significant 2. The U.N. Fiandbook population accept do the laws not guidance construing in the 1967 United Na- issue, country gov sections that the Relating Refug- tions Protocol to the Status of unable or ernment of either es, Congress to conform.” to which unwilling to control. See Korablina v. Cardoza-Fonseca, 480 U.S. 439 n. INS v. en banc case, majority “An ap Board’s decision Board’s “economic extor- that she demonstrated not show conclu need plicant tion,” for their we find no in the occurred sively why persecution the extortion was exclu- future. occur in the likely to past or is respect all “non-political.” sively With However, produce evi applicant must Board, of the divided Member to be it is reasonable from which dence is correct: Rosenberg’s analysis dissent motivated, at least harm was lieve example us of what “The case before implied protected actual or part, by an plus.’ Had she might call ‘extortion T-M-B-, Interim Dec. No. In re ground.” interjected willingness pay, 1997). (BIA Singh also Feb. that the NPA strongly suggests Ilchert, 1501, 1509-10 Cir. response life as a would have taken her 1995) may have (“Persecutory conduct Quite possibly, statement. motive, as one long and so more than one episodes robbery and other NPA extor- statutorily enumerated one of the motive is nature, purely tion have been economic sat requirements have been grounds, the clearly had mixed but this one motives. isfied.”). Borja did not note that Ms. waver join the from her refusal to *5 political their ad- remaining eyes in their test, we conclude that Given this Borja political a versary. Once Ms. drew compels Borja’s undisputed testimony Ms. sand, every in her contact line with persecuted that she was the conclusion situation, and NPA became a life or death part, in account of at least probability of death almost became opinion. In to the her contrast political 1993, in when she could February certain in which did not record “taxes.” As the pay not and did not her guerillas’ clear evidence of the contain decision, wrote in his immigration judge circumstantial, motive, direct or Ms. either angry The NPA members then became political opposition to Borja articulated her slapping hitting [Ms. and started her refusal to as the reason for Borja]. of them her One threatened acted join. agents know that the NPA We a gun. with a The other took out knife po response in to her statement direct right right and cut shoulder her and/or their opposition and revulsion litical they They arm area. also told reaction because their immediate methods and that she was to have would be back point gun at her. “get was mad” and returned; money ready they when anger saw their at her When Ms. not she would be killed. resistance, thought she were vocal Immigration Printed Decision of the Oral very to kill her at that moment. going 8, Judge, August interrupted record shows that she subject possibility by changing longer buy and no able to distinct Wounded “They pointed money September, had in money: demand for life with their person just that I will no could doubt gun at me and told them reasonable sincerity validity of her fear of imme- if I to so that taxes needed vengeful hands of her diate death at the telling me.” these circum not kill Under that drove her from stances, political enemy, fact- fear we believe no reasonable hiding. and into Had she outspo the role her her home could fail to see finder cause, joined it is unreasonable political opinion played then and the NPA’s ken both they would have happened her at the to assume slashed thereafter what drawn her blood when she NPA. with the shoulder and of the hands Cir.1996). 107 S.Cl. 94 L.Ed.2d n. Rodriguez-Roman v. See also said, 6,000 pesos on demand. demands. We “Desir’s refusal to ac- produce could not compels viewed as a whole in a political system The evidence cede extortion inescapable conclusion that the harm founded on extortion resulted his classi- NPA in- continuing death threats the fication and treatment aas subversive.” upon flicted were motivated Id. at 727.

just by money, an isolated desire for setting The factual that Ms. triggered by her initial hos- fact brings to plight us is similar to the its agents. tile confrontation with petitioner in Gonzales-Neyra v. no evidence in the There is substantial (9th Cir.1997), amended, F.3d 1293 contrary. Only by closing record to the case, In escalating nature of this eyes one’s Gonzales-Neyra approached first ensuing confrontation could one see the anonymously Shining the Peruvian strictly politi- economic with no events as Path as “a target because he component. cal The connection drawn awas successful businessman.” Id. at between her confronta- 1296. When he discovered their and their treat- tion the NPA hostile rejected identity, he demands unmistakability ment of her has the of a told them he did not their revolu- haystack.3 dinosaur As the case of tionary struggle armed against govern- Lazo-Majano v. response, ment. guerrillas threat- (9th Cir.1987), the fact that she surren- kill him. ened to initially dered to their demands “does not The BIA that Gonzales-Ney- concluded persecutory alter character of her ra eligibility failed to establish his for a In February treatment.” when she grant of asylum. government’s Over the pay, up could not the NPA took where opposition, eligi- we concluded that he was in September had left off and escalated its *6 ble, and granted we his for with- pressure life-threatening violence: holding deportation, saying, of words turned to wounds. government’s Shining focus on the This is not the first time we have con- Path’s economic motivation for the ex- that beatings cluded and assaults for the misplaced, tortion demands is as was the purpose of financial extortion constitutes immigration judge’s and the BIA’s.... on account of Thus, guerrillas may the fact that the Ilchert, In Desir v. initially Gonzales-Neyra have chosen as Cir.1988), arrested, petitioner Desir was was a target he threatened, by and assaulted Haitian Ton businessman, not relate successful does pay Ton Macoutes because he refused to subsequent perse- motivation for to their in fishing privileges. bribes return for cuting him. The of which rejected asylum request The BIA be- complains ex- Gonzales-Neyra is not the cause he “had not shown that his refusal to tortion, upon his life and but the threats pay expression politi- the bribes was an guer- that were made after the business opinion” cal or that the Macoutes inter- rillas learned of his orientation. preted politically his failure to moti- Id. at 1296. facts, disagreed id. vated. See On BIA, noting with the that “the treatment IV by properly endured Desir is more under- by ‘political’ Ms. has demon stood as motivated rather Because ‘personal’ past persecution, than interests.” Id. 728. Our strated she suffered fueled, legal presumption it is she is entitled to the Desir was here, a well-founded fear of future understanding of the context she has aggressors’ persecution. of the refusal to submit to the C.F.R. Gould, Stephen Jay Haystack Dinosaur in a fact, fully the NPA. In the Profile 208.13(b)(l)(i); hands of § Prasad v. Cir.1996). Borja’s testimony In order to rebut corroborates that mur- dangerous group the NPA is a the INS must show presumption, this people oppose them. This con- that condi- ders who of the evidence preponderance problem us to our second Philippines changed have clusion leads tions in the country conditions longer no with the information: an extent that Ms. such apply BIA failed to the relevant facts fear that she would be has a well-founded specific threat faced she return there. See in the Profile to the persecuted, should Borja. cases hold that ‘indi- presumption, the INS “Our id. To rebut changed of how condi- Department’s analysis’ 1995 Pro- vidualized invokes our State (cid:127) Country specific petitioner’s tions will affect the Asylum file of Claims and Condi- Information about Philippines. required. The INS situation is regarding tions in the is not suffi- description general changes of an highlights the Profile’s declining an NPA amnesty program; cient.” Garrovillas presence; an The BIA erred as a geographical numbers and implicit- failing requisite NPA that “in most instances”-but matter of law in to do the reasons, analysis. presump- these ly not all-is not interested For victims, wealth; in their tion that Ms. has a well-founded fear opinion of its “generally possible to seek stands unrebutted. [it is] in cases with credi- internal resettlement” threats, added). ble V highlight is the What the INS does (1) conclude that Ms. did We unreassuring statements Profile’s (2) past persecution suffer that she disappearances po- “fewer” there are genuine shown a convincingly has litically-related killings, peace and that political perse well-founded fear of future “adjourned involving talks the NPA were Philippines. cution should she return to the indefinitely” 1994 because of “dissen- circumstances, eligible these she is Under report says sion.” The also the number of discretionary grant asylum. for a instigated killings years” “NPA recent proof conclude also that her demonstrates “declining.” This information leads us probability persecution” a “clear which that, although to conclude the current tide mandatory withholding entitles her to *7 may receding, be based on this of violence deportation, known as “nonre sometimes says record it still The Profile also exists. 243(h)(1) foulement,” required by section try asylum that some claimants to distance 1970). 1253(h)(West § of the Act. 8 U.S.C. NPA, from the and that those themselves NPA, Borja last saw the When “if may claimants be aware that do pay. if told her she would die she did not not distance themselves from the circum pay. She did not Under these engage killings which is known to stances, returning to her native land violence, they may having risk other young only expected woman could be applications grounds denied on the that protect again go hiding once to into to engaged persecution.” they themselves compels a life. The record added). (emphasis The Profile continues likely it is “more than not” she would acknowledgment with an that one faction subject persecution by be to the NPA on targets figures of the NPA “business account of her beliefs. See INS v. vigilante-style assassinations as ‘enemies Stevic, 407, 429-30, 104 467 U.S. S.Ct. people.’ appear of This record 81 L.Ed.2d 321 figure.” to abe “business promises full of evidence that the NPA’s is much are not idle. It does not take of an Reading entirety gives the Profile imagination hap to what will us no sense whatsoever that Ms. understand pen gunmen at to her if the who drew her does not have a reason to fear death sion, contrary Supreme guidance. to that she has been returned Court blood discover reason, I respectfully For this must dis- precisely the plight This is to her home. sent. predicament type life-threatening of designed withholding deportation of preliminary Two observations control. Supreme accommodate. As the Court to First, appellate an court reviews decisions Cardoza-Fonseca, 480 in INS v. observed BIA a highly under deferential stan- 421, 449, 94 L.Ed.2d 107 S.Ct. U.S. dard; may reverse the BIA if the (1987), always a harsh “Deportation compels contrary evidence in the record measure; replete with it is all the more result. See INS v. claim the alien makes a danger when 478, 482, 117 L.Ed.2d subject perse be to death or he or she will (1992). Second, Supreme Court’s to return to ... her home

cution forced decision in Elias-Zacarias makes clear country.” evidence, petitioner provide must circumstantial, per-

either direct or VI secutors’ motives. As the Court noted: petitioner] objects that he [The cannot Finally, we note that we have taken care expected provide proof direct of authority, our and not to not exceed persecutors’ motives. We do not BIA. second-guess the Our decisions sim- require that. But since the statute will ply give Congress effect to the critical, provide makes motive he must political asylum making eligibility for evidence, some direct or circumstantial. ref- withholding deportation available to added). Id. at S.Ct. 812 ugees like Ms. who can demonstrate This turns on case the NPA’s motives factually compelling case for such relief. Borja. persecuting Was the NPA motivat- responsibility conferring upon us the by Borja’s politics money? ed or her Un- petitions, we review these believe Elias-Zacarias, Borja present der must Congress expects no less. evidence that NPA was motivated to BIA remand this case to the with her, persecute part, least because present instructions to this matter to the 483-84, See id. at Attorney for the exercise of her General BIA S.Ct. 812. The denied 1158(b), § discretion under 8 U.S.C. concluded NPA’s opinion, inconsistent with this and for (en- “imposition ‘revolutionary taxes’ deportation appropriate withholding order hy forced threats of harm and enforced petitioner. of this harm) ..., not [relat- actual was extortion PETITION GRANTED. respondent’s political opinion, ed] ability pay.” In other but rather to O’SCANNLAIN, Judge, Circuit words, approached the NPA would have KLEINFELD, joins, Judge, whom Circuit her, her, extorted and assault- *8 dissenting: regardless political opinions. ed her majority

I with the that the cen- The BIA conclusion that the based its tral in this case “Does the question is: persecuted Borja get money, her NPA to Borja presented compel evidence Ms. the political opinion, of on not on account sev- subjected First, the her to NPA that eral well-founded observations. political persecution on account Borja family is from a of means and was of opinion Immigration under the Na- position supply thus in a the NPA with added). Second, tionality ap- Not- Act[?]” needed resources. the NPA disclaimers, however, withstanding Borja parents’ place the proached only business; Borja provided evidence majority’s analysis wholly distorts the of no. instead, and, or at the “compelled” effectively sought that the NPA her at home test for fifteen hospital at which she worked applies “de novo” review of the BIA’s deci- 740 demanded, NPA the NPA the it the Philippines.

years leaving before Third, finally that she Borja to demonstrate not harm her. the NPA failed did When differently from others treated Borja, undisputed was harm the evidence is did economically. similarly situated who were pay her refusal to that it was on account of fourth, profile submit- And as absolutely no the “double tax.”2 There is Bureau by Department of State’s ted Borja’s the NPA cut arm evidence Democracy of reveals: political toward hostility because of her asylum ap- portion Philippine A of large Thus, appears them. that the NPA that the NPA threatens plicants allege “tax” only concerned collection. Cer- harm for re- or other them with death fact would not tainly, a reasonable finder fi- fusing support organization compelled to decide otherwise.3 instances, NPA nancially. In most simply persuaded Borja’s am not is not interested in the convincing evidence is so that we are its intended victim but in the victim’s of ' “compelled” persecu- to conclude that her wealth. tion was on account of State, Philippines: Pro- Dep’t 483-84, 502 U.S. at Asylum Country Condi- file of Claims 812. There no evidence that added). (1995) (emphasis tions NPA extortion singled out for contrast, that the only political opposition because of her to its its conclusion majority finds Indeed, likelihood, in all the NPA cause.4 persecute that the NPA was motivated to opinions, nothing Borja’s political knew political opinion Borja because of her approached Borja but because it knew she gesture against Borja one threatening Moreover, was-wealthy.5 Borja mentioned Borja’s on the heels of statement followed once, political opinion only several Borja’s opposition the NPA.1 While assault; prior months the NPA obviously angered the two statement once, actually Borja only harmed when members, they left the store as soon as Based payment. refused make agreed requested so-called record, Furthermore, this the BIA’s conclusion “revolutionary tax.” over months, Borja’s long Borja paid the NPA was not motivated following facts, action with its evaluation of the if we 1. The claims that this proves NPA members were motivat- the facts conclude BIA's evaluation of persecute Borja ed to based on her supported by is not substantial evidence.' However, opinion. just it is as reasonable to INS, (9th Aruta v. 80 F.3d Cir. infer that action was motivated a de- INS, 1996) (quoting DeValle v. paying money. sire to scare into over 1990) (quoting Cir. v. Diaz-Escobar INS, 1986))); Cir. distinguishable 2. This case is from Vera-Val see also Mikhailevitch v. (9th Cir.1998), era v. because, 147 F.3d 1036 (6th Cir.1998) ("[W]e may not reverse the case, guerillas in that told the simply Board's determination asylum seeker that wished to "cut off differently.”). would have decided the matter they accurately ideas” which character [his] “capitalist ized as those of bureaucrat.” It distinguishable Gonzales-Neyra is also from 4. testified that she was never involved (9th Cir.1997), be any political activities. case, persecution changed cause in that guerillas character after the learned of supported by Borja's tes- This conclusion is opinion, seeker's ordi timony. She testified that the NPA *9 extortion, nary destroy criminal to a threat to financial assistance from other businesses lo- video arcade inside it because with him parents' cated in the same area as her busi- games youth, the "distracted the made them suspected And that the NPA ness. stupid, na and 'diverted their attention from parents’ her out because of her successful ” problems.’ tional business, family's high as well as her standard living. keep 3. We we cannot "re must in mind that 'simply disagree verse the BIA because we political opinion supported by majority substan- While the claims that it has ... second-guess tial evidence.6 “taken care not to the BIA,” regret exactly I that is what it has Sweeping aside the substantial done. The BIA’s decision is correct. The conclusion, supports the BIA’s the support, in need of financial by places emphasis Borja’s pro majority force, wealthy Filipi- threats and made one opposition to the NPA. As the fessed Sixth no after give money another cause. recognized, has under Elias-Zaca- Circuit woman, Borja, wealthy as a was one of the rias, it is of little concern whether the targets. NPA’s When refused to political opinion: victim acts on the basis pay, Borja’s the NPA slashed her arm. of the motives seeker are “[T]he sad, story is disturbing majority as the extent that illu only relevant eloquently describes, and dramatically alleged persecutors.” minate the motives of the does not establish on ac- INS, iyappa Adh 58 F.3d political opinion. Borja count of was a dispute I do not While politi- victim of extortion and thievery, not Borja professed opposition to the persecution. Borja’s cal evidence that the NPA, the issue is whether her statements NPA by political opin- was motivated illuminate the NPA’s motives. Given the best; certainly ion is weak at it is not “so supports substantial evidence that compelling that no reasonable fact finder BIA’s conclusion those motives were could fail to find” in her favor. Elias- non-political, the illumination her state Zacarias, 483-84, provide negligible. ments 812. Moreover, majority ignores -the deny would for review and Department’s finding that “[i]n State most affirm the decision of the BIA in this case. instances, the NPA is not interested opinion of its intended victim but in the victim’s wealth.” This court has Department reports

held that State are “ appropriate perhaps ‘the most

best resource’ for ‘information on in foreign situations nations.’ Kazlaus (9th Cir.1995)

kas v. 186, 190

(quoting Rojas v. n. 1991)). dispositive, Cir. While not report provides additional for Borja’s persecu

the BIA’s conclusion that non-political.7

tion was Frankly, greatly quential, despite Supreme holding I am concerned about the Court's consequences majority opinion. From otherwise. every Philip- now on victim of extortion in (and pines according Department to the State 7. The states can country profile, may many) there be need population emanate from sections of the allege approached that when the NPA them government un of that is either money, they expressed support for the unwilling able or to control. See Korablina v. government. Any negative 1998). reaction Cir. necessarily statement, would mean that all subse- Borja pre While I with this quent Philippine govern conduct of the NPA was motivated sented no evidence that the petitioner’s political opinion. unwilling Whether ment is unable or to control the opinion reported the NPA cared one iota about that NPA. testified that she never irrelevant, and whether of the incidents with the NPA Philippine motivated would be inconse- authorities.