Jacqueline Canales-Vargas v. Alberto R. Gonzales, Attorney General

441 F.3d 739, 2006 WL 700779

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 21, 2006
• Docket: 03-71737
• Status: Published

Opinions

PREGERSON, Circuit Judge.

An Immigration Judge (“IJ”) denied Petitioner Jacqueline Canales-Vargas’ applications for suspension of deportation, asylum, and withholding of deportation. The Board of Immigration Appeals (“BIA”) affirmed without opinion. We have jurisdiction under 8 U.S.C. § 1252. For the reasons set forth below, we grant Canales-Vargas’s petition in part and remand to the BIA for further proceedings.

BACKGROUND¹

Canales-Vargas is a native and citizen of Peru. She first entered the United States in 1986 and stayed until May 1989, when she then returned to Peru. She reentered the United States in December 1990. She claims that in April 1990, while she was in Peru, she attended a political rally where she gave a speech denouncing the terrorist group Sendero Luminoso (the “Shining Path”). After the rally, she began receiving threatening notes and phone calls of escalating severity, including some that threatened her with death if she did not leave Peru.

Specifically, beginning two or three weeks after she spoke at the political rally in April 1990, Canales-Vargas received five or six threatening notes and various threatening phone calls. The last threatening phone call came just before she left Peru in November 1990. In addition to threats to harm only her, Canales-Vargas also received a note threatening to place a bomb in her house and kill her family if she failed to leave Peru. According to Ca-nales-Vargas, the letters and phone calls became more aggressive and menacing over time. Originally, the threats told her to “shut up” and “not to speak about things [she] did not know about.” Eventually, however, the letters and phone calls threatened her and her family with death if she did not leave Peru.² The IJ concluded that Canales-Vargas was statutorily ineligible for suspension of deportation because she lacked continuous physical presence in the United States. The IJ also concluded that Canales-Vargas was not entitled to asylum or withholding of deportation because she failed to establish that she suffered past persecution or faced any threat of future persecution if returned to Peru. The BIA affirmed the IJ’s decision without opinion. Canales-Vargas petitions for review of her final order of removal.

STANDARD OF REVIEW

Because administrative proceedings commenced before April 1, 1997, and the final administrative order was issued after October 30, 1996, the transitional rules of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Pub.L. No. 104-208, 110 Stat. 3009-546 (1996), apply to this case. See Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir.1997). Where, as here, the BIA affirms the decision of the IJ without opinion, we review the decision of the IJ as the final agency decision. See Falcon Carriche v. Ashcroft, 350 F.3d 845, 849 (9th Cir.2003). We review the BIA’s decision that Petitioner has not established entitlement to suspension of deportation or eligibility for asylum or withholding of deportation for substantial evidence. See Lopez-Alvarado v. Ashcroft, 381 F.3d 847, 850-51 (9th Cir.2004); Wang v. Ashcroft, 341 F.3d 1015, 1019-20 (9th Cir.2003).

DISCUSSION

I. Suspension of Deportation

To qualify for suspension of deportation under IIRIRA’s transitional rules, Canales-Vargas must have been in the United States continuously for seven (7) years before being served with an Order to Show Cause (“OSC”) as to why she should not be deported. See Lopez-Urenda v. Ashcroft, 345 F.3d 788, 791-792 (9th Cir.2003) (applying the pre-IIRIRA seven-year continuous presence requirement to transitional rules cases); Jimenez-Angeles v. Ashcroft, 291 F.3d 594, 598 (9th Cir.2002) (applying IIRIRA’s “stop-clock” provision, which ends an alien's period of continuous presence upon being served an OSC, to transitional rules cases). An applicant will fail to maintain continuous physical presence if she “has departed from the United States for any period in excess of 90 days or for any periods in the aggregate exceeding 180 days.” 8 U.S.C. § 1229b(d)(2); see also Lagandaon v. Ashcroft, 383 F.3d 983, 986 n. 1 (9th Cir.2004) (noting that a twenty-day absence did not interrupt petitioner’s period of continuous physical presence).

Here, Canales-Vargas was served with an OSC on November 9, 1993. Thus, to qualify for suspension of deportation, Ca-nales-Vargas must have been in the United States continuously since November 9, 1986. Canales-Vargas does not satisfy the seven-year continuous presence requirement, however, because she admits that she took an eighteen-month-long trip to Peru from May 1989 to December 1990.³ Accordingly, Canales-Vargas is ineligible for suspension of deportation.

II. Asylum

A. Applicable Legal Standard

To be eligible for asylum, CanalesVargas must establish that she is a refugee — namely, that she is a person unable or unwilling to return to Peru “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Sael v. Ashcroft, 386 F.3d 922, 924 (9th Cir.2004); 8 U.S.C. § 1101(a)(42)(A). The source of the persecution must be the government or forces that the government is unwilling or unable to control. See Mashiri v. Ashcroft, 383 F.3d 1112, 1119 (9th Cir.2004).

To be “well-founded,” an asylum applicant’s “fear of persecution must be both subjectively genuine and objectively reasonable.” Sael, 386 F.3d at 924. “An applicant ‘satisfies the subjective component by credibly testifying that she genuinely fears persecution.’ ” Id. (quoting Mgoian v. INS, 184 F.3d 1029, 1035 (9th Cir.1999)). An asylum applicant “generally satisfies the objective component in one of two ways: either by establishing that she has suffered persecution in the past or by showing that she has a good reason to fear future persecution.” Id. (quoting Mgoian, 184 F.3d at 1035). While a well-founded fear must be objectively reasonable, it “does not require certainty of persecution or even a probability of persecution.” Hoxha v. Ashcroft, 319 F.3d 1179, 1184(9th Cir.2003). “Even a ten percent chance that the applicant will be persecuted in the future is enough to establish a well-founded fear.” Sael, 386 F.3d at 925(quoting Knezevic v. Ashcroft, 367 F.3d 1206, 1212 (9th Cir.2004)).

B. Analysis

1. Past Persecution

Canales-Vargas may demonstrate past persecution on account of a political opinion with evidence that (1) she has been a victim of persecution; (2) she holds a political opinion; (3) her political opinion was known to her persecutors; and (4) the persecution has been on account of her political opinion. See Gonzales-Neyra, 122 F.3d 1293, 1296 (9th Cir.1997) (citing Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir.1997)). Proof of past persecution gives rise to a presumption of a well-founded fear of future persecution and shifts the evidentiary burden to the government to rebut that presumption. See, e.g., Popova v. INS, 273 F.3d 1251, 1259 (9th Cir.2001).

“In asylum and withholding of deportation cases, we have consistently held that death threats alone can constitute persecution.” Navas, 217 F.3d. at 658; see also, e.g., Mashiri v. Ashcroft, 383 F.3d 1112, 1119 (9th Cir.2004); Siong v. INS, 376 F.3d 1030, 1039 (9th Cir.2004); Khup v. Ashcroft, 376 F.3d 898, 903 (9th Cir.2004) (quoting Navas, 217 F.3d at 658); Njuguna v. Ashcroft, 374 F.3d 765, 770 (9th Cir.2004); Rios v. Ashcroft, 287 F.3d (9th Cir.2002); Lim v. INS, 224 F.3d 929, 935 (9th Cir.2000); Del Carmen Molina v. INS, 170 F.3d 1247, 1249 (9th Cir.1999); Briones v. INS, 175 F.3d 727, 729 (9th Cir.1999); Garrovillas v. INS, 156 F.3d 1010, 1016 (9th Cir.1998); Gonzales-Neyra, 122 F.3d at 1296; Gonzalez v. INS, 82 F.3d 903, 909-10(9th Cir.1996); Gomez-Saballos v. INS, 79 F.3d 912, 916 (9th Cir.1996); Aguilera-Cota v. INS, 914 F.2d 1375, 1383-84 (9th Cir.1990).

Arguably, Canales-Vargas’s credible testimony did not establish that the threats that she received “inflict[ed] sufficient suffering or harm to compel a finding of past persecution.” Lim, 224 F.3d at 936(internal quotation marks omitted). But Canales-Vargas argues that the notes and calls, in and of themselves, constitute persecution. While Navas tells us that death threats alone can be persecution, it does not specify if all threats—based on a protected ground—are sufficient to establish persecution. Navas, 217 F.3d at 658.

In Navas, the petitioner presented suffering in excess of mere threats. See id. (“[Navas’s] case involves considerably more; here, Navas was not only threatened with death, but two members of his family were murdered, he was shot at, and his mother beaten.”). In contrast to the petitioner in Navas, Canales-Vargas received written and telephone threats that were never carried out. The record indicates that the Shining Path neither confronted Canales-Vargas nor physically harmed her. For these reasons, among others, the IJ found that Canales-Vargas did not suffer past persecution. We uphold the IJ’s finding because the evidence does not compel a contrary result. See Monjaraz-Munoz v. INS, 327 F.3d 892, 895 (9th Cir.2003).

2. Future Persecution

Although Canales-Vargas cannot demonstrate past persecution, she may be eligible for asylum relief if she can prove a fear of future persecution. To demonstrate a fear of future persecution on account of a political opinion, Canales-Vargas must show that (1) she holds a political opinion; (2) her political opinion is known to her persecutors; and (3) the persecution will be on account of her political opinion. See Gonzales-Neyra, 122 F.3d at 1296.

Canales-Vargas satisfies the first and second Gonzales-Neyra requirements because the death threats she received were a direct consequence of the speeches she made at a political rally in April 1990. It is obvious to us that she holds a political opinion and that her persecutors are aware of her opinion. Our dissenting colleague makes much of the fact that the death threats received by Canales-Vargas were anonymous. See Dissent at 2962-64. Critically, however, our case law does not require a victim of past persecution or an applicant fearing future persecution to marshal direct evidence of her persecutor’s (or would-be persecutor’s) identity or the precise reason why she has been (or would be) a target of persecution. It is true that, in some cases, “isolated ... acts perpetrated by anonymous [individuals or groups] do not establish [past] persecution” and will not establish a well-founded fear of future persecution. Gormley v. Ashcroft, 364 F.3d 1172, 1177 (9th Cir.2004) (citing Rostomian v. INS, 210 F.3d 1088, 1089 (9th Cir.2000)). But in other cases, “the factual circumstances alone” may constitute sufficient circumstantial evidence of a persecutor’s identity or motives. Navas, 217 F.3d at 657; see also Deloso v. Ashcroft, 393 F.3d 858, 865-66 (9th Cir.2005) (holding that circumstantial evidence of motive may include, inter alia, the timing of the persecution and signs or emblems left at the site of persecution). We find that the'timing of the threats received by Canales-Vargas, which began two or three weeks after the April 1990 political rally at which she publicly criticized the Shining Path, are sufficient circumstantial evidence that the Shining Path was responsible for the threats and that its motive was' to retaliate against Canales-Vargas for publicly criticizing it.⁴

To satisfy the third requirement, Ca-nales-Vargas testified that she received notes and phone calls of escalating severity which eventually threatened her and her family with death if she did not relinquish her political opinion and leave Peru. These threats, made by a recognized terrorist organization, create at least a one-in-ten chance that Canales-Vargas would be severely harmed — if not, killed — if the Shining Path discovered that she had returned to Peru.⁵ See Sael, 386 F.3d at 925.

The IJ gave two reasons as to why he believed that Canales-Vargas’ fear of future persecution was not well founded.⁶ First, the IJ found that during the seven months that Canales-Vargas remained in Peru, “certainly, the Shining Path could have reached her and punished her .... [but t]hey did not do anything.” It is true that the Shining Path did not personally confront or physically harm Canales-Vargas in the seven months that she remained in Peru. But over that period of time, the threats that she received increased in severity, and she left Peru for the United States promptly after receiving the last threatening phone call in November 1990. We do not fault Canales-Vargas for remaining in Peru until the quantity and severity of the threats that she received eclipsed her breaking-point. Indeed, our precedents tell us that we cannot. See, e.g., Gonzalez v. INS, 82 F.3d 903, 909 (9th Cir.1996) (noting that there is no “rule that if the departure was a considerable time after the first threat, then the fear was not genuine or well founded”); Damaize-Job v. INS, 787 F.2d 1332, 1336 (9th Cir.1986) (two-year stay in Nicaragua after release from persecutors’ custody not determinative).

The IJ also found that “it is quite remote and quite unlikely that, given the fact that [Canales-Vargas] has been away from Peru for approximately six years, actually, more than six years, that the Shining Path would be interested in her at this point in time.” Our dissenting colleague echoes this concern by stressing that, now, after this case has percolated up from the IJ to the BIA and to this court, “the threats in this case are almost fifteen years old.” Dissent at 749. Certainly, the age of the threats that Canales-Vargas received are relevant to our evaluation of the reasonableness of Canales-Vargas’ fear. And if we were required to find a “certainty of persecution or even a probability of persecution,” Hoxha, 319 F.3d at 1184, our conclusion might be different. But when evaluating an asylum applicant’s future persecution claim, as we do here, we apply a much lower standard, which requires us to find only a “ten percent chance that the applicant will be persecuted in the future.” Sael, 386 F.3d at 925. In light of the Shining Path’s “ruthless! ] efficien[cy]” in persecuting its political opponents — to borrow our dissenting colleague’s words, Dissent at 749 — we have no trouble concluding that Canales-Vargas satisfies this low standard. See Cardenas v. INS, 294 F.3d 1062, 1064, 1067 (9th Cir.2002) (finding well-founded fear based on nine year-old Shining Path threats).

In sum, reversal of the IJ’s denial of Canales-Vargas’s asylum application is warranted because “the evidence would compel any reasonable factfinder to conclude that the requisite fear of persecution has been shown.” Navas, 217 F.3d at 657; see also Kahssai v. INS, 16 F.3d 323, 329 (9th Cir.1994) (per curiam) (Reinhardt, J., concurring) (“The fact that [petitioner] did not suffer physical harm is not determinative of her claim of persecution: there are other equally serious forms of injury that result from persecution.”).

III. Withholding of Deportation

An applicant is entitled to withholding of deportation if he or she can establish a “clear probability,” INS v. Cardozar-Fonseca, 480 U.S. 421, 430, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987), that his or her “life or freedom would be threatened” upon return because of his or her “race, religion, nationality, membership in a particular social group, or political opinion,” 8 U.S.C. § 1231(b)(3)(A); see also Thomas v. Gonzales, 409 F.3d 1177, 1182 (9th Cir.2005) (en banc). This “clear probability” standard, interpreted as meaning “more likely than not,” is more stringent than asylum’s “well-founded fear” standard because withholding of deportation is a mandatory form of relief. Navas, 217 F.3d at 655. A petitioner who establishes eligibility for asylum raises a presumption of entitlement to withholding of deportation. See Salazar-Paucar v. INS, 281 F.3d 1069, 1077 (9th Cir.), amended by 290 F.3d 964(9th Cir.2002); see also Gardozor-Fonseca, 480 U.S. at 430, 107 S.Ct. 1207; INS v. Stevie, 467 U.S. 407, 424, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984).

B. Analysis

While Canales-Vargas’s testimony “eompel[s] any reasonable factfinder to conclude” that she faces at least a ten percent chance of future persecution, her testimony does not establish that it is “more likely than not” that she will suffer future persecution. Navas, 217 F.3d at 655, 657. That is, although Canales-Vargas has demonstrated a well-founded fear of future persecution, she has not shown that she faces a “clear probability” of persecution if removed. Id. at 655. The non-confrontational threats that Canales-Vargas received almost thirteen years ago establish a ten-percent possibility of future persecution but not the clear probability of it. Without proving a clear probability of persecution, and lacking sufficient evidence of past persecution, Canales-Vargas is not entitled to withholding of deportation. Thus, we affirm the IJ’s conclusion that Canales-Vargas is not entitled to withholding of deportation.

CONCLUSION

For the reasons set forth above, we grant the petition for review in part and find that Canales-Vargas has established a well-founded fear of future persecution and is therefore eligible for asylum. However, we deny the petition for review of the IJ’s denial of withholding of deportation, as we do not consider the evidence strong enough to meet the higher standard for that form of relief. We also find that Canales-Vargas has failed to meet the “continuous presence” element required for suspension of deportation.

PETITION GRANTED IN PART and REMANDED.

1 . Our recitation of the facts is derived largely from Canales-Vargas’s testimony. Because the IJ did not make an adverse credibility determination against Canales-Vargas, her testimony must be taken as true. See Navas v. INS, 217 F.3d 646, 652 n. 3 (9th Cir.2000) ("Where the BIA does not make an explicit adverse credibility finding, we must assume that the applicant's factual contentions are true.").

2 . Canales-Vargas also claims in her opening brief that she was shot four times by members of the Shining Path. As both the Government and our dissenting colleague properly note, see Dissent at 748 n. 1, these facts are not in the record and appear to be a vestige from a different immigration case that Canales-Vargas' attorney cut-and-pasted into the brief in this case. Of course, we do not hold the sloppiness of Canales-Vargas' attorney against Canales-Vargas herself. Cf. Escobar-Grijalva v. INS, 206 F.3d 1331, 1335 (9th Cir.2000) ("The administrative record in this case.... gives a picture of attorneys shuffling cases and clients, imposing on immigration judges and on hapless petitioners alike. There is a need to clean house, to get rid of those who prey on the ignorant. The starting point is not to make the helpless the victims.”).

3 . The IJ denied Canales-Vargas’ suspension application by applying the pre-IIRIRA rule that "brief, casual, and innocent” departures are exempted from the seven-year continuous presence requirement. See Aguilera-Medina v. INS, 137 F.3d 1401, 1402 (9th Cir.1998) (citing Rosenberg v. Fleuti, 374 U.S. 449, 83 S.Ct. 1804, 10 L.Ed.2d 1000 (1963)). The 90/180 rule that we apply today replaced the "brief, casual, and innocent” standard for determining when a departure breaks continuous physical presence, see Mendiola-Sanchez v. Ashcroft, 381 F.3d 937, 939 (9th Cir.2004), and we have reluctantly concluded that the 90/180 rule is not impermissibly retroactive when applied to petitioners — like Canales-Vargas — who left the country for more than 90 days before IIRIRA's passage, see id. at 941("[W]e pause in recognition of the injustice of this result.”); see also Garcia-Ramirez v. Gonzales, 423 F.3d 935, 941 (9th Cir.2005) (Fisher, J., concurring) ("reluctantly” applying 90/180 rule).

4 . Moreover, an applicant will be entitled to asylum if "there is a pattern or practice in his or her country ... of persecution of a group of persons similarly situated to the applicant on account of ... political opinion.” 8 C.F.R. § 1208.13(b)(2)(iii)(A). As our dissenting colleague properly notes, the Shining Path is "ruthlessly efficient” at persecuting its political opponents when it wants to do so. Dissent at 749.

5 . The Government concedes that the Shining Path remains "a terrorist group involved in numerous human rights abuses.” In light of the wealth of evidence in the record that this is the case, the Government would be hard pressed to contend otherwise. For example, on April 29, 1994, the Latin America Institute of the University of New Mexico wrote that "[gjuerrillas from Sendero Luminoso [Shining Path] have staged a series of ambushes against the military, plus bloody attacks against civilians in recent weeks.” U.N.M. Latin Am. Inst., Peruvian Military Continues Offensive Against Sendero Luminoso Amid Growing Charges of Human Rights Abuses, Notisur-Latin Am Pol. Aff. (April 29, 1994), available at http://ssdc.ucsd.edu/news/noti-sur/h94/notisur.l9940429.html. According to David Montoya, a terrorism expert at the Center for Development Studies, a prestigious Lima-based think tank, the Shining Path is present in fifteen of Peru's twenty-four provinces. Allen Scrutton, Left for Dead, Peru's Rebels Regroup, S.F. CHRON., Aug. 14, 1995, at A6. A March 1995 State Department report noted that the “Sendero Luminoso continued to assassinate civilians, including peasants, farmers, villagers, indigenous people, civil authorities and public servants....” 1995 U.S. Dep't of State, Peru: Country Reports on Human Rights Practices: 1994(Mar.l995). The same report says that "[tjhere are credible accounts that Sendero tortured people to death by means such as slitting throats, strangulation, stoning, and burning. In August Sendero sympathizers tortured four people they accused of cooperating with the police ... for 3 days before killing them.” Id.

6 .Our dissenting colleague lauds the IJ’s "carefully considered ... thoughtful and well-reasoned opinion.” Dissent at 748; see also id. at 750 ("The IJ closely reviewed the record....”). But that does not necessarily mean that substantial evidence, when viewed through the proper lens, will support an IJ’s decision. In political opinion cases like this, the asylum applicant must show that he or she "faces the prospect of ... persecution[ ] because of [his or her] political opinion.” Navas, 217 F.3d at 656 (emphasis in original); see also Njuguna, 374 F.3d at 770 ("He must establish that the political opinion would motivate his potential persecutors.”). Canales-Vargas' testimony about the notes and phone calls she received easily satisfy this requirement.