Menjivar v. Immigration & Naturalization Service

19 F. App'x 622

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 21, 2001
• Docket: No. 00-70305; INS No. A72-014-038
• Status: Published

Opinion

MEMORANDUM

**

Sandra Patricia Lopez-De Menjivar, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision dismissing her appeal from the Immigration Judge’s order denying her application for asylum and withholding of deportation. We have jurisdiction pursuant to 8 U.S.C. § llOSala).¹ We review the BIA’s decision for substantial evidence, see Navas v. INS, 217 F.3d 646, 657 (9th Cir.2000), and grant the petition for review.

Petitioner’s credible testimony compels the conclusion that petitioner was persecuted at least in part on account of her political opinion. See Borja v. INS, 175 F.3d 732, 736 (9th Cir.1999) (en banc). The guerrilla-assailant was aware that petitioner supported the government. Cf. Molino-Morales v. INS, 237 F.3d 1048, 1051-52 (9th Cir.2001) (denying petition for review where assailants were not aware of the witness’ political opinion). In addition, the guerrilla-assailant did not threaten petitioner merely because she had witnessed guerrilla activity and might report it. See Navas, 217 F.3d at 661 (holding persecutors were motivated by petitioner’s political opinion, not just fear of prosecution, where persecutors did not threaten retaliation if petitioner reported their crimes, but instead demanded that petitioner leave the country or die). To the contrary, the guerrilla’s threats required petitioner to leave her home.

Accordingly, we GRANT the petition for review, VACATE the decision of the BIA, and REMAND with instructions that petitioner be granted withholding of removal and that the Attorney General exercise his discretion on whether petitioner should be granted asylum.

PETITION FOR REVIEW GRANTED; VACATED AND REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.

1 . The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA") repealed 8 U.S.C. § 1105a and replaced it with a new judicial review provision codified at 8 U.S.C. § 1252. See IIRIRA § 306(c)(1), Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), as amended by Act of Oct. 11, 1996, Pub.L. No. 104-302, 110 Stat. 3656. However, because the new review provision does not apply to petitioners whose deportation proceedings commenced before April 1, 1997, this court continues to have jurisdiction pursuant to 8 U.S .C. § 1105a. See IIRIRA § 309(c)(1).