Quirino Canedo Ochave and Felicitas Pagador Ochave v. Immigration and Naturalization Service

254 F.3d 859, 2001 Cal. Daily Op. Serv. 5353, 2001 Daily Journal DAR 6569, 2001 U.S. App. LEXIS 14248, 2001 WL 709235
Court of Appeals for the Ninth Circuit·Decided June 26, 2001·No. 99-70739·Published·Cited by 301 cases

Opinions

Opinion by Judge GRABER; Dissent by Judge PREGERSON.

GRABER, Circuit Judge:

Petitioner Felicitas Ochave (Felicitas) and her husband, Petitioner Quirino Ochave (Quirino), who are natives and citizens of the Philippines, sought asylum and withholding of deportation. Their claims were consolidated for hearing and denied by an immigration judge (IJ). On review, the Board of Immigration Appeals (BIA) affirmed the IJ’s decision. Petitioners seek review. For the reasons that we discuss below, we deny the petition for review in part and dismiss it in part.

STANDARD OF REVIEW

We review for substantial evidence a factual determination that a peti[862] tioner has failed to demonstrate eligibility for asylum. 8 U.S.C. § 1105a(a)(4). When reviewing for substantial evidence, we must uphold the IJ’s findings unless the evidence not only supports, but compels, contrary findings. INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Where, as here, the BIA simply adopted the IJ’s findings and reasoning, it is the IJ’s decision that we review for substantial evidence. Singh-Kaur v. INS, 183 F.3d 1147, 1150 (9th Cir.1999); Lopez-Reyes v. INS, 79 F.3d 908, 911 (9th Cir.1996).

FACTUAL AND PROCEDURAL BACKGROUND

Quirino and Felicitas Ochave, husband and wife, are natives and citizens of the Philippines. They lived with their four children in a small town in Pangasinan, a province of the Philippines.

Quirino worked as a cook on a ship. In August 1987, his ship docked in Texas. He entered the United States using a 29-day crew member’s pass, and he remained here. The following month, Felicitas entered the United States on a visitor’s visa. Their four children stayed in Manila with Felicitas’ brother. After Felicitas’ visa expired, she remained with Quirino in the United States.

In 1995, the INS initiated deportation proceedings against Quirino and, separately, against Felicitas. They admitted deportability but requested asylum, withholding of deportation, voluntary departure, or suspension of deportation. Their cases were consolidated for a hearing on the merits.

Petitioners’ claims for asylum or other relief both are dependent on the claim of Felicitas. Her claim, in turn, is based on her testimony that, in 1986, she and her daughter were raped by two armed men. In her application, she asserted that the two rapists were members of a Marxist guerrilla organization, the New People’s Army, and that the attack was on account of an imputed political opinion arising from her father’s position as a “Municipal Counselor” in their region of the Philippines:

My father was employed by the government in the year that the rape occurred. The two men who raped my daughter and I were members of the guerrillas who were trying to overthrow the government. Because my father had a title, “Municipal Counselor”, my family was viewed as being reactionary in the Marxist eyes of the Communist guerrillas.

The application contained no information concerning why Felicitas believed that the rape was politically motivated.

At the hearing, she was asked about her reasons for believing that there was a connection and testified as follows:1

Q. Do you have any notion at all of why the guerrillas might have raped you?
A. Because they wanted to have leadership in the region.
Q. Why would a rape give them leadership, raping you in particular? A. We were coming from the market, me and my daughter. We were heading home about late afternoon. We encountered two men.
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[863] Q. So what happened?
A. They started shouting, shouting that they wanted us so they pulled us and then the rape occurred.
Q. Did they — did they rape — tell us exactly what happened.
A. They pulled us, asked us to lie down and they told us what they want — • they want to rape us. We could not do anything to be free. They proceeded to do what they wanted to do and that is what started it.
Q. After they completed raping you and your daughter, did they say anything to you?
A. Yes.
Q. What did they say?
A. They said they are satisfied getting what they wanted to get.
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Q. How did you know [the guerrillas] were in hiding?
A. They do not — they do not go to town when it’s broad daylight or it’s light. They only go to town when it’s dawn or dusk.
Q. How do you know their comings and goings?
A. That is what is taking place there and there is a lot of things like that.
Q. When you say there are a lot of things like that, what are you talking about?
A. It was not only us they had raped. There were a lot of people also who were raped.
$$$$$$
Q. Notv, why do you think you were singled out for rape? Was it just two women walking alone hack from the market?
A. That is their job whenever dusk appears or comes they harass people.
Q. Okay, did these people do anything other than say they were going to rape you?
A. They would kill us if we would report this to the authorities.
Q. It was just a random act of violence?
A. Maybe.
Q. Okay, and you said that other people ivere also being raped and threatened?
A. Yes, there are occasions.

(Emphasis added.)

Felicitas also testified that she did not know the rapists before the attack, that they did not identify themselves in any way during the attack, and that they were “people from the mountains,” not from the town in which she lived. She further testified that she saw the rapists once (or not at all) after the rape, apparently without any words passing between them.2

After the rape, Felicitas moved from her town to Manila. She and her children lived there, without incident, for nearly a year before she came to the United States.

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Quirino Canedo Ochave and Felicitas Pagador Ochave v. Immigration and Naturalization Service, 254 F.3d 859, 2001 Cal. Daily Op. Serv. 5353, 2001 Daily Journal DAR 6569, 2001 U.S. App. LEXIS 14248, 2001 WL 709235 (9th Cir. 2001).

254 F.3d 859 (Quirino Canedo Ochave and Felicitas Pagador Ochave v. Immigration and Naturalization Service) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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