Opinions of the United 2006 Decisions States Court of Appeals for the Third Circuit
5-3-2006
Chavarria v. Atty Gen USA Precedential or Non-Precedential: Precedential
Docket No. 04-1223
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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
___________
No. 04-1223 ___________
CELSO CHAVARRIA,
Petitioner
v.
ALBERTO GONZALEZ, ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
Petition for Review of an Order of the Board of Immigration Appeals (No. A70-799-216 )
Argued June 30, 2005 Before: NYGAARD*, SMITH, and FISHER, Circuit Judges.
(Filed: May 3, 2006)
Thomas E. Moseley, Esq. (ARGUED) One Gateway Center, Suite 2600 Newark, NJ 07102 Counsel for Petitioner
Arthur L. Rabin, Esq. (ARGUED) Linda S. Wernery, Esq. Lyle D. Jentzer, Esq. Julia K. Wilcox, Esq. William C. Peachey, Esq. United States Department of Justice Office of Immigration Litigation P. O. Box 878 Ben Franklin Station Washington, DC 20044 Counsel for Respondent
OPINION OF THE COURT ___________
*. Judge Richard L. Nygaard assumed senior status on July 9, 2005.
2 NYGAARD, Circuit Judge.
Petitioner Celso Chavarria, a native of Guatemala,
petitions this court for review of the Board of Immigration and
Appeal’s (“BIA”) denial of his application for asylum and
withholding of removal. We find that the BIA applied the
correct standard of review under 8 C.F.R. § 1003.1(d)(3)(i).
However, because the BIA mischaracterized the nature and
degree of the threats Chavarria faced and understated the effect
these threats had, its factual findings are not supported by
substantial evidence. In addition, the BIA’s conclusion that
Chavarria is not entitled to asylum or withholding of removal
because he failed to establish a well-founded fear of persecution
is not substantially supported by the record. We therefore will
reverse the BIA’s decision and grant the petition for review.
I. Facts and Procedural History
3 During the second half of the 20th Century, Guatemala
experienced a variety of military and civilian governments as
well as a thirty-six year guerilla insurgency. This insurgency
caused more than 200,000 deaths and disappearances, the
majority of which were civilians.1 However, the Government
signed an agreement in 1996 at which point the insurgency
formally ended. Chavarria’s claim for asylum stems from two
incidents that occurred in 1992, during the apogee of the
insurgency. As we discuss in detail later, the BIA’s explanation
of these factual incidents differed in material ways from
Chavarria’s testimony, despite the fact that the BIA and the
Immigration Judge (“IJ”) accepted Chavarria’s testimony as
credible. Because Chavarria’s testimony has been accepted as
1. For more generally regarding the conditions of Guatemala, see t h e d a t a b a s e a v a i l a b l e a t http://www.womenwarpeace.org/guatemala/guatemala.htm#d ocs.
4 credible, we will relay the facts as Chavarria testified to them.
Li v. Attorney General of the U.S., 400 F.3d 157, 164 (3d
Cir.2005).
At all relevant times, Chavarria was essentially apolitical.
He belonged to no political movements, nor did he ascribe
particular allegiance to the ruling government. He was also
never a member of any anti-government grassroots, political or
social groups. The first and primary incident relating to
Chavarria’s asylum claim occurred while Chavarria was driving
through Guatemala City. From his car, he saw two young
women being attacked by what he believed were paramilitary
forces.2 After parking his car, he began walking toward the
altercation but when he saw that the men were pulling the
women’s clothing off he returned to his car and retrieved some
2. The IJ found that these “paramilitary types” were “government people.”
5 towels. When he returned, the men had withdrawn and he
helped the women cover themselves with the towels. Then, at
the women’s request, he escorted them to safety. When he
returned home he told his wife about the incident.
A few days later, Chavarria’s wife informed him that
there was a car circling their house. Chavarria saw the car and
its occupants and recognized them as the same paramilitaries
who had assaulted the women.3 Additionally, an article about
the incident appeared in the paper. From the article, Chavarria
learned that the women were members of a well known human
3. Specifically, Chavarria testified that, “[a]nd then after four or five days, my wife told me that there was car [sic] going around my house, and to my surprise, this car was the same car that I had seen before in that place [referring to the attack].” Then, in response to the question, “[i]n other words, with the two women, the incident, that was the same car?” Chavarria replied, “Yes, exactly.” Later in his testimony, Chavarria again testified that he “saw the vehicle next to my house, and these people looked familiar to me, and this is when I started to feel fear because I remembered about the incident that I helped these two women that time.”
6 rights organization, the National Coordination of Widows of
Guatemala (“CONAVIGUA”), which opposes the government.4
In the article, the women confirmed that they had been beaten,
threatened, and stripped. They also stated that a person had
come to their aid and covered them. Chavarria’s name did not
appear in the article. Chavarria testified that after seeing the
paramilitary’s car parked next to his home and the article in the
paper, he was afraid that the paramilitary members would
retaliate against him for the assistance he had rendered to the
women.
4. More specifically, CONAVIGUA is a women’s organization established to discover the fate of those “disappeared” during the Guatemalan civil war. In addition, the group advocates on a host of issues, including conscientious objection, and supports people displaced due to the conflict. The organization gained notoriety when one of their members, Rigoberta Menchu, won the Nobel Peace Price in 1992. The organization is apparently also known as the Commission of Widows.
7 Consequently, Chavarria came to the United States and
began an asylum application. He returned to Guatemala,
however, when he was unable to get a job and because he was
concerned about his ability to support himself and his family.
While living again in Guatemala, a second incident occurred.
Driving one night, Chavarria’s car was cut off by another
vehicle. Armed men got out of the vehicle and forced him into
the back of his car. They placed a gun to his head and another
to his stomach and robbed him. They also threw his keys out
into a field and instructed him not to move for five minutes.
Before leaving, the men told Chavarria that “if we ever see you
again, you’re not going to even live to tell the story.” Chavarria
believed these men attacked him because of his previous aid to
the two humanitarian workers and again fled to the United
States and pursued his asylum application. Because Chavarria’s
8 timely appeal implicates both legal and factual issues, we will
briefly recount both the IJ and the BIA opinions.
A. The Immigration Judge
The IJ assumed Chavarria to be credible and therefore
accepted the description of the two incidents as we have related
them above. Although the IJ found that some of Chavarria’s
actions were “curious,” overall, the IJ determined that Chavarria
was telling the truth. Despite this determination, the IJ denied
Chavarria’s application for asylum because “[Chavarria’s]
connection with [CONAVIGUA] is so tenuous, so casual, so
cursory, that the government was not after him because of his
political opinion, but because of some way he in a minor way
assisted them.” The IJ went on to explain that “casual
assistance, as altruistic and admirable as it may have been” did
not qualify him for political asylum.
9 The IJ’s determination rested on an analysis of
Chavarria’s claims for asylum on account of an expressed
political opinion rather than an imputed political opinion, stating
in part that:
I do not believe the mere act of assistance in a charitable way of a good Samaritan to get somebody off the streets and to clothe them is espousing a political opinion on his part which the government would want to suppress. . . . To consider him, the mere good Samaritan whose casual short, few minute episode assisting these people, would be to expand the concept of political opinion beyond any reasonable bounds.
The IJ also failed to discuss the implications of the attack in
Chavarria’s car after he returned from his trip to the United
States other than to say that the attack “had nothing to do with
his political opinion” or any other protected grounds.
Thus, the IJ denied Chavarria’s application for asylum
and withholding of removal on legal grounds by holding that
humanitarian assistance was not sufficient to establish
10 persecution on the grounds of expressed political opinion. The
IJ did not make any findings with respect to whether Chavarria
had suffered past persecution or had a well-founded fear of
future persecution.
B. The BIA
The BIA heard Chavarria’s appeal from the IJ’s decision
twice. In its first order, the BIA agreed with the factual
findings of the IJ but concluded that the “surveillance following
his intervention on the behalf of the human rights members in
1992 was likely on account of an imputed political opinion.”
However, the BIA went on to find that the surveillance, even if
accepted as true, did not rise to the level of past persecution and
therefore could not satisfy the burden of establishing grounds for
asylum. In addition, it concluded that “the 1993 robbery
incident was not politically motivated as no political statements
were made.” Concluding that Chavarria could not demonstrate
11 the reasonable likelihood of future persecution, the BIA
affirmed the IJ’s decision.
We granted Chavarria’s petition for review after the first
adverse ruling from the BIA because it stated that Chavarria
failed to show a clear probability that his life or freedom would
be threatened “if returned to Haiti.” Chavarria is a citizen of
Guatemala; therefore, pursuant to a stipulation of the parties, we
remanded the matter to the BIA to reconsider Chavarria’s appeal
due to the factual, albeit unintentional, error in its opinion.
When the BIA took up Chavarria’s appeal for a second
time, it stated that “the substantive reasons for our decision
upholding the Immigration Judge’s denial of asylum still stand.”
After reiterating its view that Chavarria had presented credible
testimony, the BIA recounted the two incidents forming the
basis of Chavarria’s asylum application.
12 After describing the 1992 incident in which Chavarria
aided the two female CONAVIGUA members, the BIA stated,
“[Chavarria] did not directly confront the attackers, nor did his
name become known to any of the people involved.” They
found that Chavarria only “thought [the car next to his house]
might have people in it who were involved in the assault.” The
BIA went on to discuss the “robbery” that took place in
Chavarria’s car, stating that Chavarria was “threatened with
death if he told what happened.”
On these findings, the BIA determined that Chavarria
could establish an imputed political opinion. However, they
denied him asylum, concluding that he failed to demonstrate
past persecution, because there was never any specific threat of
harm rising to the level of past persecution or any physical harm
related to the imputed opinion. In addition, they summarily
rejected his claim of future persecution.
13 II. Jurisdiction and Standard of Review
The BIA has appellate jurisdiction over decisions of an
IJ in removal cases initiated by the INS under 8 C.F.R. §
1003.1(b) (2004).5 Our jurisdiction arises under 8 U.S.C. §
1252(a), which provides the exclusive procedural mechanism
for judicial review of all final removal orders. The BIA’s final
order was entered on December 30, 2003, and the petition for
review was timely filed on January 27, 2004, within the required
30 days. See 8 U.S.C. § 1252(b).
Where, as here, the BIA issues a decision on the merits
and not simply a summary affirmance, we review the BIA’s, and
not the IJ’s, decision. Gao v. Ashcroft, 299 F.3d 266, 271 (3d
Cir. 2002). When there are special circumstances, however, we
also look to the decision of the IJ. Id; See also Voci v. Gonzales,
5. During the pendency of this case, the INS, the agency initially in charge of immigration matters, was replaced by the Bureau of Immigration and Customs Enforcement.
14 409 F.3d 607, 612 (3d Cir. 2005) (clarifying that we should look
to the IJ’s decision where the BIA expressly adopts a portion of
that opinion or defers to it). In reviewing decisions of the BIA,
this Court applies a deferential standard of review. The BIA’s
conclusions regarding evidence of past persecution and the well-
founded fear of persecution are findings of fact, and we
therefore review these conclusions under the deferential
substantial evidence standard. Abdille v. Ashcroft, 242 F.3d
477, 483-83 (3d Cir. 2001). So long as the BIA’s decision is
supported by “reasonable, substantial, and probative evidence on
the record considered as a whole,” we will not disturb the BIA’s
disposition of the case. INS v. Elias-Zacarias, 502 U.S. 478,
481 (1992). A BIA decision can only be reversed if the
evidence is such that a reasonable factfinder would be
compelled to conclude otherwise. See id. Nonetheless, the BIA
must substantiate its decisions. We will not accord the BIA
15 deference where its “findings and conclusions are based on
inferences or presumptions that are not reasonably grounded in
the record.” Dia v. Ashcroft, 353 F.3d 228, 249 (3d Cir. 2003).
III. Discussion
To obtain a grant of asylum, an alien must demonstrate
that he is a “refugee” within the meaning of 8 U.S.C. §
1101(a)(42). To succeed, an alien must show that he is a person
who is unwilling or unable to return to his home country
because of “[past] persecution or well-founded fear of [future]
persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.”
8 U.S.C. § 1101(a)(42)(A). Thus, an alien may demonstrate
either that he qualifies for asylum because of past persecution or
because he fears future persecution if returned to his native
country. However, the persecution, either past or future, must
be motivated by one of the statutorily protected grounds. 8
16 U.S.C. § 1101(a)(42)(A). Included within these grounds, and
relevant to this case, is persecution on account of imputed
political opinion. We will grant asylum to an otherwise
qualified alien where the motives and perspective of the
persecutor demonstrate that the persecution was on account of
a belief attributed to the alien, even where the alien did not
overtly subscribe to that belief. See Desir v. Ilchert, 840 F.2d
723, 728 (9th Cir. 1988). Testimony of an alien, where credible,
may be sufficient to support a claim for asylum under either
category. Gao, 299 F.3d at 271.
A. De novo review and first instance factfinding
As an initial matter, Chavarria argues that the BIA
engaged in improper fact-finding under 8 C.F.R. § 1003.1(d)(3),
a regulation governing BIA standards of review.6 We disagree.
6. 8 C.F.R. § 1003.1(d), in relevant part states: (3) Scope of Review (continued...)
17 This regulation, enacted in 2002, changed the standard of review
the BIA exercises over an IJ’s findings of fact from de novo
review to clearly erroneous review. 8 C.F.R. § 1003.1(d)(3)(i).
6. (...continued) (i) The Board will not engage in de novo review of findings of fact determined by an immigration judge. Facts determined by the immigration judge, including findings as to the credibility of testimony, shall be reviewed only to determine whether the findings of the immigration judge are clearly erroneous.
18 8 C.F.R. § 1003.3(f)7 states that “[a]ll cases and motions
pending on September 25, 2002, shall be adjudicated according
to the rules in effect on or after that date, except that §
1003.1(d)(3)(i) shall not apply to appeals filed before September
25, 2002.” Thus, any case in which an appeal was filed prior to
September 25, 2002 is not subject to the new standard of review
set forth in 8 C.F.R. 1003.1(d)(3)(i). Accordingly, for these
cases the BIA must engage in de novo review of all factual
7. In its entirety, 8 C.F.R. 1003.3(f) states: (f) Application on effective date. All cases and motions pending on September 25, 2002, shall be adjudicated according to the rules in effect on or after that date, except that § 1003.1(d)(3)(i) shall not apply to appeals filed before September 25, 2002. A party to an appeal or motion pending on August 26, 2002, may, until September 25, 2002, or the expiration of any briefing schedule set by the Board, whichever is later, submit a brief or statement limited to explaining why the appeal or motion does or does not meet the criteria for three- member review under § 1003.1(e)(6).
19 findings of the IJ and is free to accept or disregard the IJ’s
factual findings in any given matter. See Abdulai v. Ashcroft,
239 F.3d 542, 549 n.2 n(3d Cir. 2001). Since Chavarria
instituted his appeal prior to September 25, 2002, the newly-
enacted regulation § 1003.1(d)(3)(i) does not apply to his case.
Instead, the BIA was correct when it engaged in de novo review
of the IJ’s factual findings. De novo review allows the BIA to
engage in factfinding in the first instance when the BIA rejects,
in whole or in part, the IJ’s factual determination. Id.; see also
Wang v. Ashcroft, 368 F.3d 347, 349 (3d Cir. 2004) (concluding
that the former de novo standard of review applied, not §
1003.1(d)(3)(i)’s clear error standard, and noting that it was
reviewing the “BIA’s decision and its de novo factfinding rather
than the IJ’s decision and its factfinding”); Balasubramanrim
v. INS, 143 F.3d 157, 161 (3d Cir. 1998) (observing that BIA’s
de novo review allows it to “independently assess [the IJ’s]
20 determination and make de novo findings”); Ramirez-Alejandre
v. Ashcroft, 320 F.3d 858, 864 (9th Cir. 2003) (listing cases
reflecting BIA’s earlier power to engage in fact finding while
conducting its de novo review). Accordingly, the BIA’s fact
finding was not impermissible.
Chavarria also contends that the BIA failed to adhere to
a second provision, 8 C.F.R. 1003.1(d)(3)(iv), which addresses
BIA factfinding, thereby violating the regulations.8 He argues
that this provision bars the BIA from engaging in fact finding in
the first instance. While we agree that § 1003.3(f) makes this
8. In relevant part, the provision states: (iv) Except for taking administrative notice of commonly known facts such as current events or the contents of official documents, the Board will not engage in factfinding in the course of deciding appeals. A party asserting that the Board cannot properly resolve an appeal without further factfinding must file a motion for remand. If further factfinding is needed in a particular case, the Board may remand the proceeding to the immigration judge, or, as appropriate, to the Service.
21 subsection applicable to appeals like Chavarria’s which were
pending before September 25, 2002, we need not determine
whether this provision barred the BIA from making factual
determinations in this appeal. Instead, cognizant that there is
some overlap between the applicable de novo review standard
and the statutory language of § 1003.1(d)(3)(iv), which we
presume precludes factfinding in the first instance, we apply the
“well-settled maxim that specific statutory provisions prevail
over more general provisions . . . .” In re Combustion
Engineering, Inc., 391 F.3d 190, 237 n.49 (3d Cir. 2004). Thus,
§ 1003.3(f)’s general statement that the new rules are applicable
to all pending appeals must yield to the specific exception for
the application of § 1003.1(d)(3)(i), thereby requiring the BIA
to engage in de novo review for appeals pending as of
September 25, 2002.
B. Past Persecution
22 Chavarria next claims that the BIA erred when it
determined that his claims did not satisfy the burden of proving
past persecution on account of an imputed political opinion. As
we noted earlier, the requirement that the BIA’s decision be
supported by substantial evidence is not an empty one. Thus, if
no reasonable fact finder could reach the same conclusion as the
BIA based on the record then the finding is not supported by
substantial evidence. See Elias Zacarias, 502 U.S. at 481. In
determining whether the BIA erred, this court is required to look
at the record as a whole. Dia, 353 F.3d at 249-50. Here, in
looking at the record, we conclude that the BIA
mischaracterized and understated the nature of the evidence
supporting Chavarria’s claims such that their conclusions are not
supported by substantial evidence. We note with importance
that the BIA accepted Chavarria’s testimony as credible and
again caution the Board in the future to be diligent in accurately
23 representing the evidence and testimony put forth by the alien
where that evidence is credible. See Li v. Atty Gen’l of the U.S.,
400 F.3d 157, 159 (3d Cir. 2005). By mischaracterizing and
understating the evidence in the record, the BIA succeeded in
reaching a conclusion not supported by substantial evidence
such that we are compelled to reach a conclusion to the contrary.
To establish past persecution, an alien must first show
that he suffered persecution. Lukwago v. Ashcroft, 329 F.3d
157, 167-68 (3d Cir. 2003). It is well settled that persecution
does not encompass all forms of unfair, unjust, or even unlawful
treatment. Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993).
Instead, we have defined persecution to include “threats to life,
confinement, torture, and economic restrictions so severe that
they constitute a real threat to life or freedom.” Lukwago 329
F.3d at 168 (quoting Lin v. INS, 238 F.3d 239, 244 (3d Cir.
2001). In addition, these threats must be on account of a
24 statutorily protected ground, which includes imputed political
opinion, and may be established through credible and persuasive
testimony of the applicant. See Desir, 840 F.2d at 727-28.
However, we have limited the type of threats constituting
persecution to “only a small category of cases, and only when
the threats are so menacing as to cause significant actual
‘suffering or harm.’” Li, 400 F.3d at 164 (quoting Lim v. INS,
224 F.3d 929, 936 (9th Cir. 2000). We have further defined
acceptable threats to include only those that are highly imminent
and menacing in nature. Id. Thus, we have refused to extend
asylum protection for threats that, while sinister and credible in
nature, were not highly imminent or concrete or failed to result
in any physical violence or harm to the alien. For example, in
Li we credited Li’s descriptions of being threatened with
sterilization and physical violence. However, we refused to
define these threats as persecution for the purposes of Li’s claim
25 because they were not sufficiently imminent or concrete. See id.
at 163-64.
We first address whether Chavarria established that he
was persecuted on account of a statutorily protected ground.
Assuming Chavarria’s testimony to be credible, the BIA, in its
first crack at the record, found that the surveillance of Chavarria
was on account of an imputed political opinion. This finding
finds substantial support in the record based on Chavarria’s
testimony that he recognized both the car and the occupants as
the paramilitaries present during the attack on the
CONAVIGUA women. The clear import of this testimony is
that the paramilitaries associated Chavarria with the women
members of CONAVIGUA and imputed their political opinion
to him. However, on remand, the BIA changed its position with
respect to whether the paramilitaries were actually surveilling
Chavarria, stating “the respondent saw a car next to his house
26 which he thought might have people in it who were involved in
the assault.” (emphasis added). The BIA also determined that
“[Chavarria’s] name [did not] become known to any of the
people involved in the incident” and also that his involvement
in the incident was anonymous. Of these three factual
determinations, the first substantially mischaracterizes
Chavarria’s testimony and the second two find no support from
the record.
Chavarria testified that after the incident his wife noticed
a car circling their home. When asked to describe this event,
Chavarria stated:
I saw the vehicle next to my house, and these people looked familiar to me, and this is when I started to feel fear because I remembered about the incident that I helped these two women that time. And by, and by this time, I saw in the paper, in the newspaper, that these women had denounced this, by means of their organization, that they belonged to, they denounced these people and the car.
27 A diligent reading of this testimony makes it obvious that
Chavarria was being surveilled by the same people involved in
the initial attack. The BIA’s finding that Chavarria only thought
that these were the same people mischaracterizes his testimony
in such a way as to potentially deprive him from establishing
persecution on account of a protected ground.
Furthermore, we can divine nothing in the record
supporting the BIA’s finding that Chavarria’s name did not
become known to any people involved in the incident. In fact,
we find ample evidence directly contrary to this claim, including
Chavarria’s above quoted testimony. The fact that, according to
Chavarria, the same people involved in the attack were
surveilling Chavarria and his house is ample proof that the
attackers did, indeed, know who Chavarria was and what he did.
Indeed, the BIA seemed to recognize the impact of just such
28 evidence in its first opinion, wherein it stated that “the
surveillance following his intervention on the behalf of the
human rights members in 1992 was likely on account of an
imputed political opinion.” Its reversal of its own initial finding
is arbitrary because it lacks any support in the record. We are
compelled by the record, consisting of credible, uncontradicted
testimony, to find that the surveillance was carried out by the
same paramilitaries involved in the attack on account of an
imputed political opinion that Chavarria was associated with
CONAVIGUA.
Erroneous and unsupportable factual findings, however,
may not require reversal if they were not prejudicial. Here,
taking the facts as Chavarria testified to them, we agree with the
BIA that the surveillance of Chavarria does not rise to the level
of past persecution. Guided by our recent opinion in Li, the
surveillance, even if considered a threat, was neither highly
29 imminent nor menacing enough to rise to the level of
persecution.
The BIA then proceeded to address the more troubling
threat made to Chavarria. While calling it a “frightening crime,”
the BIA found that it was not related in any way to the earlier
attack on the CONAVIGUA members. In support of this
conclusion, The BIA characterized the incident this way: “[h]e
was warned not to move for 5 minutes and threatened with death
if he told what happened.” Again, we find that this description
mischaracterizes and understates, in a material way, the nature
of the incident. In his testimony describing the event, Chavarria
stated, “he told me that if we see you again, you’re not going to
even live to tell the story.” Moreover, in a sworn affidavit in the
record, Chavarria further elaborates:
One afternoon near my house...they drove a car in front of my car. Next thing I knew I was in the back seat of the car. They had a gun with a knife to my head...one sat
30 in the passenger side of the car, while another sat right next to me. They took all the money I had from my pockets..The person that was pointing at me, the one by the driver’s side took the keys from the car and said some words that I will never forget, “We are going to leave you alone today, but if we ever catch you again you won’t live to talk about it.”
The statement actually given by Chavarria in his testimony,
fairly taken with the rest of the record, differs starkly with the
BIA’s characterization and does not lead to the conclusion that
the incident was entirely random and unrelated. Rather, it
suggests, quite unequivocally, that the robbery was an attempt
to suppress information the attackers knew Chavarria had about
the CONAVIGUA attack. The statement “[w]e are going to
leave you alone today, but if we ever catch you again you won’t
live to talk about it” is about as clear a death threat as we might
expect attackers to make. Substantial evidence does not support
the BIA’s conclusion that the attackers threatened Chavarria
31 with death because they had just robbed him. Lending more
support to our conclusion, the method of attack mimicked the
attack perpetrated upon the CONAVIGUA members. There, the
attackers tried to make their attack look like a robbery, taking
the money of the women and threatening to kill them. It simply
does not make contextual sense to conclude that this statement
relates to the robbery as it was happening, and only a tortured
reading of it could lead to this conclusion.
Here, the second threat experienced by Chavarria rises to
the level of past persecution because it was both highly
imminent, concrete and menacing and Chavarria suffered harm
from it. In addition, the threat was carried out on account of an
imputed political opinion that Chavarria was supportive of the
CONAVIGUA movement. This threat is unlike the threats we
encountered in Li, which were merely verbal and not concrete
because here, the attackers actually robbed Chavarria, pointed
32 a gun to his face, and threatened him with death if he told his
story.
C. Well-Founded Fear of Future Persecution
To establish a well-founded fear of persecution, an alien
must show that his fear is “subjectively genuine and objectively
reasonable.” An alien, therefore, must “show that he has a
subjective fear of persecution that is supported by objective
evidence that persecution is a reasonable possibility.” Abdille
v. Ashcroft, 242 F.3d 477, 496 (3d Cir. 2001). In addition, this
persecution must be on account of a statutorily protected ground
which includes imputed political opinion. Lukwago, 329 F.3d
at 174. While not always the case, an alien may succeed in
demonstrating fear of persecution on account of imputed
political opinion solely by testifying credibly that a specific
political opinion has been imputed to him by a foreign
government. Mulanga v. Ashcroft, 349 F.3d 123, 133 n.7 (3d
33 Cir. 2003). A showing of past persecution gives rise to a
rebuttable presumption of a well-founded fear of future
persecution, as long as that fear is related to the past persecution.
8 C.F.R. § 1208.13(b)(1). In addition, while past threats may
not rise to the level of past persecution, they are often quite
indicative of a danger of future persecution. Li, 400 F.3d at 165,
n.3.
We have held that an alien may use testimonial,
documentary, or expert evidence to demonstrate either a
subjective or objectively reasonable fear of future persecution.
Lukwago v. INS, 329 F.3d 157, 177 (3d Cir. 2003). Moreover,
we recognized that often an alien would be unable to offer
anything more than his testimony in support of his claim that his
fear of persecution is objectively reasonable. Thus, “an
applicant’s credible, persuasive, and specific testimony may
suffice to establish an objective fear of persecution.” Id.
34 (quoting Balasubramanrim v. INS, 143 F.3d 157, 165 (3d Cir.
1998)). The offered testimony need not demonstrate that the
persecution would be more likely than not, or even probable.
Instead, we only require that the evidence demonstrate that the
fear is objectively reasonable. For example, applying these
standards in Lukawago, we found that the alien established a
well-founded fear of persecution where he testified credibly that
he feared being killed by the guerilla army from which he
escaped if returned to Uganda. Combined with evidence that
the guerilla army did kill escaped soldiers we held that the alien
had met his burden of proving an objectively reasonable fear of
future persecution. Id. at 179. Other Circuits are in accord with
our requirement that the objective element need only be
reasonable and may be substantially met by credible testimony.
In Martirosyan, the Court of Appeals for the Ninth Circuit held
that credible testimony, corroborated by articles and press
35 reports documenting exactly the fear to which the alien testified,
along with no contrary evidence in the record established an
objectively reasonable fear of future persecution. Martirosyan
v. INS, 229 F.3d 903, 910-11 (9th Cir. 2000).
We think it clear that here Chavarria has established a
well-founded fear of future persecution and that the BIA’s one
sentence dismissal of this claim was both grossly inadequate and
erroneous.9 As an initial matter, Chavarria’s fear, if well-
founded, is clearly on account of an imputed political opinion.
Since we are required to assess the motive and perspective of the
persecutor to establish whether the persecution was or will be on
account of political opinion, we can rely on credible testimony
of the alien, since it would be “patently absurd to expect an
applicant...to produce [] documentary evidence ... because
9. In its entirety, the BIA concluded that “[n]or has the respondent in anyway shown that his anonymous involvement in this incident might result in harm upon his return to Guatemala.”
36 persecutors are hardly likely to provide their victims with
affidavits attesting to their acts of persecution.” Id. at 912-13.
Here, Chavarria testified that, before the first incident with the
CONAVIGUA women, he was essentially apolitical. As we
noted earlier, he then offered substantial and compelling
testimony that after the incident he was put under surveillance
by the same men who perpetrated the attack on the
CONAVIGUA women. There is no evidence casting any doubt
on this testimony, and we think it clear that the paramilitaries
targeted Chavarria because they ascribed to him an association
with the CONAVIGUA group that, at minimum, could be anti-
government sympathies.10
10. Indeed, Chavarria’s testimony is corroborated by the United States State Department Bureau of Democracy, Human Rights and Labor’s Country Report entitled Guatemala Country Report on Human Rights Practices for 1998 which noted, inter alia, that, “between May and July, CONAVIGUA, an NGO representing widows of victims of the internal conflict, reported (continued...)
37 In an attempt to establish a well-founded fear of future
persecution, Chavarria testified credibly that he subjectively
feared that if forced to return to Guatemala, he would be harmed
or killed. Since it is well settled that credible testimony that an
alien fears persecution if returned to his home country
establishes a subjective and genuine fear of persecution, we
have no trouble accepting Chavarria’s testimony in support of
his claim. See Martirosyan, at 910.
Lastly, Chavarria’s “credible, direct, and specific”
testimony, corroborated by articles in the record, establishes his
fear that he will be persecuted if returned to Guatemala as
objectively reasonable. Chavarria testified that, based on what
he’d seen happen to the two CONAVIGUA women, combined
10. (...continued) receiving a number of threatening telephone calls, and several of its members reported having been watched, followed, or harassed.”
38 with the fact that he saw the same men surveilling his house led
him to fear for his life. Moreover, after his attack in the car, he
believed that if he remained in Guatemala, he would be killed.
From the record, it is clear that the Guatemalan government and
paramilitaries attack and threaten human and civil rights groups.
The record also contains direct corroborating evidence that
members of CONAVIGUA have been attacked because of their
affiliation with the group. Even the State Department Report
documents that human rights groups suffer threats and violence
from security forces. The Report goes on, “[a]mong other
human rights activists in rural areas who were victims of
violence during 1996 were ... Lucia Tiu Tum, a member of the
Guatemalan Conference of Widows (Conavigua), who [was]
killed while returning from a wedding in a remote Quiche
village.” Indeed, the fact that this entire asylum claim began
with Chavarria’s help during an attack on two CONAVIGUA
39 members offers clear objective evidence that the government
will attack individuals associated with CONAVIGUA. Finally,
there is no evidence in the record to support a contrary
conclusion which, in any event, must rely on substantial
evidence. Here, the BIA’s conclusion that Chavarria cannot
establish a well-founded fear of future persecution is not
supported by substantial evidence. The BIA does not, and likely
could not, articulate any evidence whatsoever for this position.
IV. Conclusion
Because the BIA accepted Chavarria’s testimony as true,
but then proceeded to misstate and ignore certain relevant
aspects of that testimony, its decision that Chavarria’s past
experiences did not rise to the level of past persecution or that
he could not establish a well-founded fear of future persecution
are not substantially supported by the record. We hold that
Chavarria did establish a claim for past persecution and that, in
40 addition, he established a well-founded fear of persecution.
Accordingly, we will grant the petition and reverse the BIA’s
opinion.