*1 original of his at the time I believe probation office did feel
sentencing the history significantly his criminal that of most defendants than
less serious convictions, but we on the countable based by the 1979 cocaine influenced
were also
incident.... ulti- suspect I the issue that not recom-
mately office to influenced our category departure to
mend downward 1979 incident....
II the uncounted analogous to that in Sus-
The situation
taita, held that where this court which opportunity to have an did not
defendant report, objections presentence
make the court’s failure
“we ... cannot excuse presen- Sustaita read
determine whether report or it with counsel discussed
tence If defendant 954.
as harmless.” given opportuni- had been
and his counsel May 20 memorandum before
ty to review the they might have sentencing hearing, previ- department’s
challenged probation in not recom-
ously unexplained rationale departure. The error
mending a downward harmless.
was not Petty’s sentence
Accordingly, we vacate resentencing. We assume
and remand Petty passed for time has
that sufficient other, resolved, way one
have
validity DWI conviction. of his California resentencing. REMAND for
VACATE and ARUTA, Petitioner,
Vivian C. AND
IMMIGRATION SERVICE,
NATURALIZATION
Respondent.
No. 93-70981. Appeals, States Court
United
Ninth Circuit. 15, 1995. June
Argued Submitted April
Decided *2 Floum, Heller, Ehrman,
Joshua R. White McAuliffe, Francisco, California; & San Mar- O’Donnell, garet California, Valley, R. Mill petitioner. for the Shapiro H. Alexander Reyna, Nelda C. Immigration Office of Litigation, United Department Justice, States Washington, D.C., respondent. for the HUG, Judge, ALARCON, Before: Chief TROTT, Judges. Circuit TROTT, Judge: Circuit Aruta, Vivian Calabio a national and citizen Philippines, petitions for review of a (“BIA”) Immigration Appeal Board deci- denying sion applications withholding deportation. The BIA deter- alleged that her mined fear of objectively reasonable, was not and alterna- tively that she failed to demonstrate a threat countrywide persecution. Philippines, that even if her fear timely peti- jurisdiction over this We have reasonable, deny regarded § We were to be to 8 U.S.C. 1105a. pursuant tion entirety. countrywide. in its threat petition *3 I. BACKGROUND B. A. testimony support- to her In addition own in the United States Ms. Aruta entered applications, Aruta ing her Ms. submitted visa, which she February, 1985 on a tourist articles, background newspaper clippings, a overstayed. July, on subsequently sister, notarized and letter from her and initiative, asylum. applied for her own she sworn on her behаlf from three certifications later, Director months the District Two Philippine Captain Ro- officials: Manolito B. Immigration and Natural- Francisco San IV liuqui, Commanding and District Officer (“INS”) applica- her denied ization Service Philippine of Consta- Commander the 482nd pro- deportation
tion. The INS commenced Fontanoza, bulary; Mayor Attorney Jose V. October, ceedings during which Ms. in Barangay Captain of Don Ipil; of asy- for application Aruta resubmitted her presented also declarations Andres.1 She 1158(a), along applica- § lum, with 8 U.S.C. experts: Dr. Cesar Adib from two academic (1) deportation withholding of tions for Majul, authority on movement the Muslim (2) 1253(h), § Philippines, and 8 U.S.C. in Prof. James 1254(e). Philippines, § voluntary departure, 8 for U.S.C. Anderson, anthropоlogy professor of social asylum an al- her claim of on bases She Berkeley University of at the California persecution at the hands leged fear of future society. expert Filipino culture and and an Army People’s groups: the New of Finally, presented expert (“NPA”)-the military arm of the Communist Saenz, support application of her from David which to over- Party of the seeks security expert, an international current government, and the Philippine throw the security manager at Levi of international (“MNLF”)-a Front Moro National Liberation Co., attorney, and former FBI Strauss & group dedicated to estab- Muslim terrorist information, special agent. this From lishing on the island Min- an Islamic state picture emerges. following Ms. Aruta’s fear оf danao. derivately solely based groups is these city Ipil, grew up in the Ms. Aruta father, who until on her with her Zamboanga Del province located police officer Mindanao 1977 was Philip- in the on the island of Mindanao Sur for years responsible combat- for 30 was who Aruta, father, pines. Her Paolo served acknowledged of both ting terrorism Philip- of the years in Battalion the 482nd groups. Min- Constabulary in southern pine stationed (“IJ”) immigration judge July, 1989 an in 1977. a lieutenant danao. He retired as asylum applications for Ms. Aruta’s denied equivalent Constabulary Philippine withholding granted deportation, but job in- military Mr. Aruta’s police force. voluntary Ms. departure. request assignment quell the activities cluded an denial of appealed the BIA IJ’s insurgents oper- the Muslim and communist withholding deportation MNLF and the NPA. ating in the area-the claims. family on Minda- Ms. Aruta lived with her applications BIA Ms. Aruta’s denied nearby moved to a until when she nao withholding deportation asylum and island, university. Cebu, She study at the failed to show it concluded that she because to Mindanao graduated in and returned in her circum- reasonable orphanage. upon work in an 1983to fear return stances would borough. barangay captain is chief executive neighborhood barangay cil. The is like a 1. A Ipil, barangay city barangay. Andres is a Don the local coun- where Ms. Aruta’s father on Ms. Anita and are Catholic eountry-and but before Ms. Aruta left the city lived an area dominated a Muslim then elected to the council. majority. bеtween Conflict Muslims and campaigns against As result of his area, Catholics in the which dates back to at NPA and the MNLF and later his century, least the seventeenth intensified activities, Mr. Aruta became well-known to during regime. The the Marcos MNLF is a groups, such that threats him group Muslim secessionist which seeks family began Shortly and his to occur. after through force violence to establish an public he received the commendation in autonomous Islamic state. Their activities Muslims murdered tenants Christian who are centered but Ms. Aruta lived the Arutas’ land. Ms. Aruta testi- *4 testified and submitted evidence that their fied that killed of were because Mr. spread- subversive activities and violence are military Aruta’s well-known activities ing to other of the islands as well. Crisis,” the MNLF. After the “Mindanao 1973, began around the Arutas receiving government
Conflict between the and the death threats from both the MNLF and the communists is another fact in of life the 1975, NPA. Around 1974 Philippines. found military The NPA is the arm of yard letter back that said that “our party. goal the communist The NPA’s is to being is traced the MNLF so we Philippine government overthrow the and im- get better of place.” out pose Around regime. a communist The NPA has 1974, family temporarily Ms. Aruta and her strong in support southern as well left their home and province, went to another spheres strong regions influence 1980, Misamis Occidental. In 1979 or while throughout Philippines. Mr. Saenz testi- she was in Cebu and after her father’s retire- that the NPA is fied active about 95% of Constabulary 1977, ment from the a rock provinces Philippines. with a note attached was thrown into the The conflicts between bitter family’s house in Mindanao. The note was Philippine government MNLF re- “you from the MNLF and said better leave during Aquino mained acute administra- your family or else will be killed.” Mr. Aruta notwithstanding government’s tion at- wrote to Aruta in Cebu telling several times tempted peoples overtures the Muslim to come home because it was too continued efforts subdue communist dangerous. military forces. 1987, In kidnapped the MNLF her father NPA and MNLF Both the have been gunpoint. The MNLF released him after Philippine military, police known to seek out Aquino government agreed negotiate public kidnapping, officials for torture the MNLF’s independent demands pursuit assassination their that, Islamic statе. Sometime after Aruta’s addition, agendas. experts all three testi- mother and father moved their home in NPA fied that both the and the MNLF tar- Ipil They to Misamis Occidental. now live in get innocent of such members officials Germany. against political either to exact retribution enemies, taking deter officials from C.
punitive organizations. actions their None paints rosy of this information Aruta, father, spent Mr. Vivian Aruta’s 30 picture of life in problem, Mindanao. The years combatting groups. these two In 1970 however, picture incomplete, is that public received commendation for his missing significant part in deter- local arrest two leaders the MNLF. He mining whether the record contains substan- fought alongside also Ma- United States tial supporting evidеnce the BIA’s conclusion Philippine army against rines and the that Ms. Aruta’s derivative fear of future during the “Mindanao Crisis” of objectively reasonable. 1972, imposition which led to the of martial First, never, law in Aruta retired Ms. Aruta herself has in Min- Constabulary elsewhere, years from the directly 1977-seven danao or or indirect-
1393
threat,
any
are reviewed
substantial evidence. INS
or of
acts
ly
the victim
478, 481,
Elias-Zacarias,
harassment,
502 U.S.
ei- v.
aggression,
(1992).
812, 815,
fact,
persecution.
v.
policy
Desir
doсuments
[N]one
indicate a
Cir.1988).
(9th
target
726
of the NPA to
members of
these officials
officials who have retired
The well-founded fear of future
positions.
from their
of the docu-
None
persecution
objective
an
standard
provide
example
any family
ments
component.
subjective
satisfy
To
being
members or former official
assassi-
subjective requirement,
applicant
must
NPA_
sum,
nated
the docu-
genuine
perse
demonstrate a
fear of future
mentary
provides no
indication of
Shirazi-Parsa,
cution.
island of appears but this threat by to have been 1. THE NPA motivated her work as a worker, government social and not ac- Decision, separately its the BIA ana- count of her to her father. lyzed potential the the future by of Ms. Aruta each of Adding together, the troublesome all of this con- Board groups. As to the the Board respondent looked cluded that “the has not estab- evidence, documentary expert first at next at lished that reasonable cir- testimony, then experiences at the actual by cumstances would fear family. inquiry, As to its first if Philip- NPA she were to return to the pines.” Board concluded as follows: family evidence and the inferences such
2. THE
it, stating that “it
substan
drawn from
does
the Board’s consideration
We now turn to
tially
agency
Id. at
support the
decision.”
pic-
we find
similar
of MNLF where
INS,
282;
see also Estrada v.
775 F.2d
again,
documentary
ture. Once
(9th Cir.1985) (“The
1021-22
absence
As noted
expert
fell short.
of an alien’s
tends
re
harassment
Board, “The
submitted in the
documents
probability
persеcution.”);
Cha
duce the
any particular instance
do not indicate
record
(9th Cir.1984)
INS,
1431, 1434
vez v.
723 F.2d
targeted or harmed
where the MNLF has
(“In addition, Lopez’s family
has remained
military, police,
government
offi-
former
harassed.”);
El Salvador and has not been
cials,
of current or former
members
Marroquin-Manriquez v.
that
The Board determined
officials.”
(“We
(3d Cir.1983)
note the evidence that
body
of evidence
threats mentioned
in Mexico
petitioner’s
remained
[which
speculative,
that the actual
mostly
were
similar
which included his wife who had
respon-
cited were
similar
cases
threats,
undergone
views] had
said,
cir-
“[T]he
situation.
Board
dent’s
harassment.”).
persecution,
The evidence
ex-
as
[cited
of these individuals
cumstances
regarding Ms.
in this
Aruta’s sister
reсord
markedly
from
amples] appear
different
category.
If
squarely
Imelda falls
into this
daughter of a
respondent,
those of
supports
strongly
anything,
more
member,
city council
policeman and
former
eases be
BIA’s decision than
our other
in her
never been vocal
who herself had
parity
in this context of the two
cause
un-
opposition
MNLF and had never
sisters.
MNLF.”
any
dertaken
actions
with
family’s
experiences
actual
As to the
Moreover,
pains
point
we took
out
MNLF,
the Board observed
follows:
petitioner, although
that the
Mendez-Efrain
respondent
finding
[IJ’s]
military,
never himself
recruited
beaten, molested,
fear of harm “tortured,
harried,
not have a well-founded
does
or ever
re-
MNLF, following her father’s
threatenеd”;
petitioner failed to
and that the
police
force and
anyone
tirement
present
concrete evidence that
council,
supported
the fact
city
harmed or
*7
similarly situated had ever been
is-
respondent
herself returned
283. The same can
threatened. 813 F.2d at
following
university
land Mindanao
counts for Ms. Aruta.
said on both
Cebu,
her father’s
education
even before
retirement,
not harmed or threat-
and was
explicitly
here
The BIA’s decision
during the
with harm
almost
ened
objective
long
an
acknowledges that “so
as
departing
years
there before
she resided
persecution]
[suggesting
is estab
situation
Additionally, her sister
Philippines.
evidence,
not
by
it need
be shown
lished
for
island of Mindanao
had remained
probably
per
result
that the situation will
many
years
has had no contact
more
secution,
enough
persecution is
it is
that
but
Cardoza-Fonseca,
the MNLF whatsoever.
difficulties with
possibility.”
a reasonable
440,
(quoting
1217
at
C. 2498). Stevic, 424-25, 104 at S.Ct. at 467 U.S. Therefore, whether the rec we must decide dispositive factors simi- contains This case perse evidence that ord contains substantial in Mendez- lar considerations identified (9th Cir.1987), possibility.” INS, a “reasonable cution is not F.2d 279 v. 813 Efrain we have on the evidence which supporting the Based evidence” as “substantial referred, definitively it does. asylum. we that petition Id. at believe of a BIA’s denial standards, by the relevant in Tested In of the BIA’s decision favor 282-83. case, are both rational and similarly Board’s conclusions that situated noted that we fully supported substantial evidence. family continued petitioner’s members of fact, fact- believe that reasonable farm we do not incident on to reside without could have concluded finder on this record danger. As we had alleged zone of objectively reason- eases, fear was that Ms. Aruta’s previous approved we the use done 1396 Certainly asylum
able. the evidence does not “com BIA deny decision to Aruta Elias- pel” finding required by grounds such a as was also on made that she failed country-wide Zacarias. said Pra To reiterate what we to demonstrate a threat. This INS, (9th v. Cir.1995), sad recently 47 336 F.3d court found that of a the existence panel asylum may eligibili country-wide persecution reverse thе BIA’s threat not re “ only ty quired eligibility if for determining determination ‘the evidence deportation. Singh v. presented Il compelling withholding so no reason chert, (9th 375, Cir.1995). requisite able fail to find the 69 factfinder could F.3d 380 Be ” Id. persecution.’ (quoting part fear cause the BIA decision rested on Elias-Zacarias, 483-84, 112 grounds, impermissible 502 U.S. at S.Ct. issue re 817). conclusively maining The record demon is the reasonableness of Ms. Aruta’s ground strates that Ms. Aruta’s fear was not fear. reality
ed in the situation either as of 1985, left, 10, year July she or of I. Thus, the date of the IJ’s decision. her fear majority The facts stated reveal a required by “well-founded” the stat good part of the reason her fear. I add ute. pertinent some other facts: circumstances, Under the the Board’s al- addition own alleged ternative conclusion threat is family, specific Aruta testified to instances of countrywide is irrelevant. explain violence why others she returning fears testi- She WITHHOLDING OF IV. fied that in 1982 well-known Chris- DEPORTATION journalist tian broadcast who was critical of Withholding deportation re the MNLF from fled Mindanao Cebu and quires proof higher asy standard of than believes, disappeared. then Aruta based applicant proba lum. The must show clear what she heard from others and what was bility persecution. applicant must reported press, that he was tracked likely establish “more than not that down the MNLF and murdered. On the persecution.” Elnager the alien will suffer newspaper report, basis of a she testified INS, Cir.1991). (9th 930 F.2d Be that in politician 1981-1982 a Christian satisfy cause Ms. did the lesser Mindanao took his and fled to Toledo required asylum, perforce standard for. Cebu, City, where were killed withholding fails show entitlement to of MNLF. deportation. Ghaly v. After Aruta’s return to Mindanao from (9th Cir.1995). *8 Cebu, family her continued to receive threats DENIED. PETITION daughters and Aruta advised his to leave country they if could. HUG, Judge, dissenting. Chief Imelda, Aruta’s sister who works for the respectfully I dissent. Philippine Department of Social Services dis- tributing supplies food and military and appeal question of this is on the focus workers, civilian has received written death persecution of whether Aruta’s fear of Vivian the NPA and MNLF against reasonable, objectively qualify is so as to her family her and her because she works for the asylum. question The BIA did not government gives suрplies and out and food credibility genuineness subjec- or the of her military. In July Imelda wrote a very strong tive fear. On basis telling letter to Aruta their presented evidence from Aruta’s wrote, Philippines. safe in She knowledgable persons Philippines from the experts Philippines, regarding Papa. on the the We are so much worried of He is persecution, likelihood being sought by it cannot be said MNLF because objectively that the fear she military has unreason- he was one of those who made the operation able. Barangay Palid.- Our father seek her out MNLF and the NPA could Occidental. We in Misamis now evacuated anywhere in the is reasonable. too with Mama to evacuate plan kids_ Occi- might be Misamis We we will month and course next dental A Reasonable Fear life is not everything here. Our abandon decla- expert spite watching They are safe this time. rations, spite of Aruta’s own credible and in family military men. found evi- testimony, the Board insufficient or the NPA the MNLF letter, that either Aruta dence receiving her sister’s After target former officials or fami- actually either return for her to it was not safe decided The Board ly present or former officials. applica- Philippines and she filed MNLF and NPA tar- 1989, accepted only that the January, asylum 1988. In tion for duty The Board dis- get active officials. and Colo- Eduardo Batalla Brigadier General contrary all Abendan, counted of Mr. Aruta’s nel Romeo it “documented found no officers, the record because kidnapped superior were friends and this occurred.” thereafter, instances where Aruta’s Sometime executed. fled, this time and two of her sisters parents fact, in the is substantial evidence there live. Germany, now Cologne, where target fami- MNLF and NPA record that the IJ, hearing before At the time of officials, ly of officials and retired members only member Imelda was contrary support evidence to and no in the remained and NPA that the MNLF BIA’s conclusion duty For exam- target active officials. Majul, leading scholar ple, Dr. Cesar Adib II. Philippines,1 in the de- culture of Muslim Aruta’s MNLF, BIA’s denial of disagree I with the to the NPA and in reference clared basis of the evi application. On the Aruta, the fa- against Mr. Paulo Threats record, I must in the administrative denсe probably from his Aruta stem ther of Miss would fact finder that a reasonable conclude insurgents role and actions fear of to find that Aruta’s compelled be duty. while was in active secessionists the NPA against him can Revenge retaliation finding BIA’s and that is reasonable normally to his innocent be extended fam- reasonable, contrary supported This has ily or near relatives. members substantial, probative Eli evidence. See uncommon occurrence not been an 480-81, as-Zacarias, S.Ct. 502 U.S. especially Such Philippines, in Mindanao. Furthermore, I that the BIA believe persons revenge on innocent or retaliation prove that she requiring erred technique deter utilized to throughout subject to be would army forces from police members of scope geographic Philippines. While the fight- actions those taking punitive may in certain circumstances the threat ing established order. petitioner’s finding of whether to a relevant added). (emphasis founded, legal itself a well fear is Anderson, professor an- asylum. Prof. James See Cua grant to a prerequisite *9 at (9th University of California thropology 2 at n. F.2d dras Marine,2 United Cir.1990). Berkeley former States so, and record this case Even the declared, finding Aruta’s fear that compel a does science, present. served He 1966 and the times between Majul political professor 1. Dr. Development studies, University Insti- philosophy the Asian at as a consultant for and Islamic eighteen years Technology. and Philippines has He Institute of of the and the Asian tute Philip- articles on books and Anthropology written numerous pine and Envi- visiting Professor politics. history, culture and Islamic University Philip- at the ronmental Studies July August He has to 1979. pines from in Lu- structure studied social
2. Prof. Anderson Philip- articles published numerous also He further 1962. conducted zon from 1960 to pines. Philippines least ten visits to research Saenz, groups Ralph fact that such special agent as the former FBI against and the NPA have made threats security and current head of international constabulary the life aof officer Strauss,3 specifically Levi testified that an former entirely family likely.... and his Iam ex-Philippine Constabulary official would be Philippine military police aware that family at risk. He dеscribed the risk to recently been officials have tortured and/or part members from the MNLF and NPA as by I the NPA. am also assassinated aware of a continuum. The risk from the MNLF is that MNLF and NPA members have tar- NPA, great not as as the risk from geted family members of these officials for family great the risk to a member as kidnapping, torture murder as a and/or politically as the risk to the active individual. upon further means to exact retribution added, quickly He political those consider to be their however, say, enemies. That’s not to that they would risk, be added.) immune from because there (emphasis Prof. also Anderson stat- prov- have been declaration, instances some of the ed his “The fact that her family father and her have inces where thrеats have received written been made death against threats means that there is a real family particular po- members of probability aof violent encounter should Ms. police liceman or official or official elected to Aruta return her native land.” And he through with the family you idea send stated, Majul, fact that Dr. “The himself a message person.... I think Muslim, that the Muslim believes secessionist probably most us can understand we poses movement a threat to Ms. Aruta is may be much more willing accept risk if strong evidence that unbiased the same is the risk is us opposed as to where the true.” daughter risk is to our or son or wife. Roliuqui, Manolito District IV Commander Immigration Judge posed hearing Constabulary, of the 482nd stated a decla- following hypothetical Mr. Saenz: ration, [Paulo Aruta] “while was in the active Philippine Constabulary sendee in the have clearly We an individual who has (30) thirty years, he was one those who combatant, been has he actively against campaigned insurrection and Constabulary, fought he against has rebellion, retirement, upon his so that his life MNLF, fought against he has he object family his were presumably is known organi- to both these rebels, revenge by proof of which he had fact, zations. As a matter of one of them anonymous threatening received letters even had him as a hostage go. but let him added). family.” (emphasis kill him his family he Now has a member. That Captain Barangay of Don Andres also Philippines member not been in the in a testified declaratiоn: Philip- since While she inwas said Lt. Anita retired the ser- When pines other than familial vice, object he and his were participated no activities rebels, reprisals by endangering thus that could be considered the NPA or family. his his This can life the MNLF particularly heinous crimes proven many death be re- people organi- their anonymous persons ceived from as well as you say situation, zations. Would in such a letters, reason, unsigned some for which Saenz, probability that there clear is a Aruta, prompted Miss Vivian C. one of his of a real likelihood that if the mem- daughters flee United States ber returned sometime which was later on fol- she would sister, targeted youngest lowed Miss either the NPA Eliza or the *10 Germany Anita to flee to in mid 1987. MNLF? University operations. Mr. Saenz received a J.D. from Levi Strauss' overseas Levi Strauss Berkeley, years California at counter-intelligence worked for five in plants Philippines employs Philip- has in the and FBI, past the for the and for pine plants. nationals to work in those years performing analysis six risk for that, in if Aruta were an remained Mindanao unharmed the time
Mr.
answered
Saenz
hearing (although she had
employee
company,
his
he would recom-
of the
received
MNLF).
sending
the
threats from the NPA and
against
Philip-
her back to
death
mend
unaccepta-
escaped
But
harm in
pines
the risk would be
the fact that Aruta
the
because
ble,
harm
past
if she
have been a valuable
does not make her fear
future
even
would
Damaize-Job,
employee
in the
In answer
unreasonable. See
(fact
petitioner
question,
that
un
hypothetical
“would an ex-
at 1386
remained
another
years
Philippine Constabulary
Nicaragua
for two
lieutenant of the
harmed
did
returning).
prominent MNLF
his well-founded fear of
who had arrested several
defeat
past persecution
required
participated ...
a Actual
leaders and who had
NPA,
asylum
against
where the fear of future
battle
and
founded,
Moreover,
it
person
danger
being
is well
as
is here.
all
would such
answered, “Oh,
points to
targeted?” Mr.
abso-
evidence in the record
the fact that
Saenz
added).
lutely.”
dangers
Aruta left
(emphasis
have escalated since
country, as
evidenced
father’s
that Mr. Aruta
Aruta herself
testified
sister,
kidnapрing, the
death
great,
so
found
risk
superior
executions of her father’s
offi
his
from the Constabu-
even after
retirement
cers,
that most of her
and the fact
fled
council,
city
lary
he
his wife
that
took
addition,
country.
Mr.
as
Saenz testi
daughters
his
to Germa-
and two of
fled
fied,
threatening
may
fact that
letters
ny. Mr.
that the fact that the
Saenz testified
stopped
have
does not mean that the MNLF
country
targeted official has left the
could
longer
targeting
NPA
no
are
interested
actually put
remaining family members
that,
respect
He
someone.
elaborated
with
greater risk
be the
at even
because would
NPA,
con
while there are financial
official,
only way
pur-
to hurt
either for
military
cerns and short term
setbacks that
as a
poses of retribution or
serve
deter-
they
delays,
long
have a
account
time
rent to others.
long
twenty years,
just
memory-as
reasonable,
refusing
to find Aruta’s fear
target
they
not acted
because
have
very
ignored
the BIA
this
substantial
years
in a few
does not mean that
admittedly
establishing
credible
stated,
danger.
“I
not still in
He
think the
at risk if
that Aruta will be
returned
forgotten
and that
still
NPA has not
specif-
Philippines,
highlighting certain
while
have,
things
they would want to
have
pieces
ic
of evidence that it found irrelevant
know,
vengeance
you
blood
for. So the
example, it
to her claim. For
discounted
memory
memory,
organizational
family,
his
death threats to Mr. Aruta and
long.”
actually quite
NPA is
because,
kidnapping,
accord-
and Mr. Aruta’s
BIA also discounted Aruta’s fear that
BIA, they
his
ing to
occurred before
NPA,
by the
persecuted
she would be
I
how the BIA
retirement.
do
see
could
Although acknowledging that
particular.
conclusion that
events
have drawn the
responsibility
combatting
Mr. Aruta had
Mr. Aruta was
that occurred while
the risk from this
it discounted
Constabulary
politician
he
are
while was
no
group
it found
evidence that
because
Aruta’s
claim now that
irrelevant to
NPA
specific
took
actions
record,
in the
he is retired. All the evidence
NPA.
received threats
including
and declarations from
although her
death
And
sister
received
qualified experts
Philippine offi-
highly
NPA, the BIA found that
threats from the
cials, clearly and without contradiction shows
govern-
due to
activities as
this was
and their
members
that ex-officials
worker,
not her
ment social
are at risk.
family.
Aruta’s well-
The BIA also found that
clear,
BIA
does
the fact
The evidence
was undermined
founded fear
years
deny,
in his
after finish- not
Consta-
returned to Mindanao
that Aruta
He
bulary, Mr. Aruta combatted the NPA
college
safely for two
ing
lived there
special
same
commenda-
had
did not receive the
years,
the fact that her sister
*11
arresting
for
promi-
tion that he received
two
that
fact finder
reasonable
would be
leaders,
fought
compelled
agree.
attorney
to
against
nent MNLF
but he
As Aruta’s
so
years,
aptly
IJ,
groups many
put
hearing
for
it at
declara-
before the
these
from his commanders
“are events
would cause a ration-
tions
attest
this fact.
which
person
al
to be
stiff.”
scared
The BIA’s
Moreover,
family
Aruta testified that her
conclusion that a
Aru-
reasonable
received threats from
NPA as
well
position
ta’s
would
share Aruta’s fear is
the MNLF. As neither the BIA
nor the
completely unfounded.
testimony incredible,
pre
IJ found this
we
Platero-Cortez,
that
is true. See
sume
Family
B. Aruta’s
1131; Damaize-Job,
F.2d at
787 F.2d at
majority
relies on
Mendez-Efrain
addition,
1338. In
the fact that Aruta’s sister
(9th Cir.1987)
deciding
and rational should deported Philippines.” I conclude argument petitioner's 4. At oral counsel the fact stated that Imelda’s continued residence that, filing subsequent appeal, of this danger Imel- significant zone basis for a majority da also fled the While proportion majority opinion, flight noting inquiry correct that our is limited to may reopen. as a serve basis for a motion to record, light a review of the administrative