Vivian C. ARUTA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent

80 F.3d 1389, 96 Cal. Daily Op. Serv. 2441, 96 Daily Journal DAR 4113, 1996 U.S. App. LEXIS 6982, 1996 WL 165016

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 10, 1996
• Docket: 93-70981
• Status: Published

Opinions

TROTT, Circuit Judge:

Vivian Calabio Aruta, a national and citizen of the Philippines, petitions for review of a Board of Immigration Appeal (“BIA”) decision denying her applications for asylum and withholding of deportation. The BIA determined that her alleged fear of persecution was not objectively reasonable, and alternatively that she failed to demonstrate a threat of countrywide persecution.

We have jurisdiction over this timely petition pursuant to 8 U.S.C. § 1105a. We deny the petition in its entirety.

I. BACKGROUND

A.

Ms. Aruta entered the United States in February, 1985 on a tourist visa, which she subsequently overstayed. In July, 1988, on her own initiative, she applied for asylum. Two months later, the District Director at the San Francisco Immigration and Naturalization Service (“INS”) denied her application. The INS commenced deportation proceedings in October, 1988 during which Ms. Aruta resubmitted her application for asylum, 8 U.S.C. § 1158(a), along with applications (1) for withholding of deportation as to the Philippines, 8 U.S.C. § 1253(h), and (2) for voluntary departure, 8 U.S.C. § 1254(e).

She bases her claim of asylum on an alleged fear of future persecution at the hands of two groups: the New People’s Army (“NPA”)-the military arm of the Communist Party of the Philippines which seeks to overthrow the Philippine government, and the Moro National Liberation Front (“MNLF”)-a Muslim terrorist group dedicated to establishing an Islamic state on the island of Mindanao. Ms. Aruta’s fear of persecution by these groups is solely and derivately based on her relationship with her father, who until 1977 was a police officer in Mindanao and who for 30 years was responsible for combat-ting the acknowledged terrorism of both groups.

In July, 1989 an immigration judge (“IJ”) denied Ms. Aruta’s applications for asylum and withholding of deportation, but granted her request for voluntary departure. Ms. Aruta appealed to the BIA the IJ’s denial of her asylum and withholding of deportation claims.

The BIA denied Ms. Aruta’s applications for asylum and withholding of deportation because it concluded that she failed to show that a reasonable person in her circumstances would fear persecution upon return to the Philippines, and that even if her fear were to be regarded as reasonable, the threat was not countrywide.

B.

In addition to her own testimony supporting her applications, Ms. Aruta submitted background articles, newspaper clippings, a letter from her sister, and notarized and sworn certifications on her behalf from three Philippine officials: Captain Manolito B. Ro-liuqui, Commanding Officer and District IV Commander of the 482nd Philippine Constabulary; Attorney Jose V. Fontanoza, Mayor of Ipil; and the Barangay Captain of Don Andres.¹ She also presented declarations from two academic experts: Dr. Cesar Adib Majul, an authority on the Muslim movement in the Philippines, and Prof. James Anderson, a professor of social anthropology at the University of California at Berkeley and an expert in Filipino culture and society. Finally, she presented expert testimony in support of her application from David Saenz, an international security expert, current manager of international security at Levi Strauss & Co., attorney, and former FBI special agent. From this information, the following picture emerges.

Ms. Aruta grew up in the city of Ipil, located in the province of Zamboanga Del Sur on the island of Mindanao in the Philippines. Her father, Paolo Aruta, served for 30 years in the 482nd Battalion of the Philippine Constabulary stationed in southern Mindanao. He retired as a lieutenant in 1977. The Philippine Constabulary is equivalent to a military police force. Mr. Aruta’s job included an assignment to quell the activities of the Muslim and communist insurgents operating in the area-the MNLF and the NPA.

Ms. Aruta lived with her family on Mindanao until 1977, when she moved to a nearby island, Cebu, to study at the university. She graduated in 1982 and returned to Mindanao in 1983 to work in an orphanage.

Ms. Anita and her family are Catholic but lived in an area dominated by a Muslim majority. Conflict between Muslims and Catholics in the area, which dates back to at least the seventeenth century, intensified during the Marcos regime. The MNLF is a Muslim secessionist group which seeks through force and violence to establish an autonomous Islamic state. Their activities are centered in Mindanao, but Ms. Aruta testified and submitted evidence that their subversive activities and violence are spreading to other islands of the Philippines as well.

Conflict between the government and the communists is another fact of life in the Philippines. The NPA is the military arm of the communist party. The NPA’s goal is to overthrow the Philippine government and impose a communist regime. The NPA has strong support in southern Mindanao, as well as strong spheres of influence in regions throughout the Philippines. Mr. Saenz testified that the NPA is active in about 95% of the provinces in the Philippines.

The bitter conflicts between the NPA, the MNLF and the Philippine government remained acute during the Aquino administration notwithstanding the government’s attempted overtures to the Muslim peoples and continued efforts to subdue the communist military forces.

Both the NPA and the MNLF have been known to seek out Philippine military, police and public officials for kidnapping, torture and assassination in pursuit of their political agendas. In addition, all three experts testified that both the NPA and the MNLF target innocent family members of such officials either to exact retribution against political enemies, or to deter officials from taking punitive actions against their organizations.

Mr. Aruta, Vivian Aruta’s father, spent 30 years combatting these two groups. In 1970 he received a public commendation for his arrest of two local leaders of the MNLF. He also fought alongside the United States Marines and the Philippine army against the MNLF during the “Mindanao Crisis” of 1972, which led to the imposition of martial law in the Philippines. Mr. Aruta retired from the Constabulary in 1977-seven years before Ms. Aruta left the eountry-and was then elected to the city council.

As a result of his campaigns against the NPA and the MNLF and his later political activities, Mr. Aruta became well-known to both groups, such that threats against him and his family began to occur. Shortly after he received the public commendation in 1970, Muslims murdered Christian tenants who lived on the Arutas’ land. Ms. Aruta testified that they were killed because of Mr. Aruta’s well-known military activities against the MNLF. After the “Mindanao Crisis,” around 1973, the Arutas began receiving death threats from both the MNLF and the NPA. Around 1974 or 1975, the family found a letter in the back yard that said that “our family is being traced by the MNLF so we better ... get out of the place.” Around 1974, Ms. Aruta and her family temporarily left their home and went to another province, Misamis Occidental. In 1979 or 1980, while she was in Cebu and after her father’s retirement from the Constabulary in 1977, a rock with a note attached was thrown into the family’s house in Mindanao. The note was from the MNLF and said “you better leave or else your family will be killed.” Mr. Aruta wrote to Aruta in Cebu several times telling her not to come home because it was too dangerous.

In 1987, the MNLF kidnapped her father at gunpoint. The MNLF released him after the Aquino government agreed to negotiate the MNLF’s demands for an independent Islamic state. Sometime after that, Aruta’s mother and father moved from their home in Ipil to Misamis Occidental. They now live in Germany.

C.

None of this information paints a rosy picture of life in Mindanao. The problem, however, is that the picture is incomplete, and the missing part is significant in determining whether the record contains substantial evidence supporting the BIA’s conclusion that Ms. Aruta’s derivative fear of future persecution is not objectively reasonable.

First, Ms. Aruta herself has never, in Mindanao or elsewhere, been directly or indirectly the victim of any threat, or of any acts of aggression, harassment, or persecution either by the NPA or the MNLF. In fact, after attending the University of Cebu from 1977 to 1983, she voluntarily returned to Mindanao, the alleged zone of danger, where she openly lived safely and without incident for two years before she decided in 1985 to leave the country. Notwithstanding the 1980 rock incident, nothing untoward happened to her during this important period to cause her to believe she was in danger of persecution.

Second, Ms. Aruta has a sister, Imelda. They share the same father and are thus identically situated in terms of the danger Ms. Aruta describes in her application and from which she seeks asylum. The record establishes that during the relevant time period, including the date the BIA rendered its decision, Imelda resided openly and continuously in Mindanao, the same zone of danger. Despite this exposure, Imelda was never harassed, threatened, hurt, or persecuted because of her father’s activities. She did receive threats from the MNLF and the NPA, but these threats resulted from her own work with the Philippine Department of Social Services, not her relationship to her father. Ms. Aruta has done no such work.

Third, Aruta presented no direct or circumstantial evidence to the BIA that either feared group ever harmed or assassinated any specific member of any family because of that person’s relationship to a retired official who had previously investigated them. We note again that Mr. Aruta’s retirement as a police officer predated Ms. Aruta’s departure by seven years.

II. STANDARD OF REVIEW

The BIA’s decision whether to grant asylum is reviewed for abuse of discretion. Berroteran-Melendez v. INS, 955 F.2d 1251, 1255 (9th Cir.1992). Our inquiry is limited to a review of the administrative record. See 8 U.S.C. § 1105a(a)(4); Gomez-Vigil v. INS, 990 F.2d 1111, 1113 (9th Cir.1993) (“We are not permitted to consider evidence that is not part of the administrative record.”). Factual findings underlying the decision, including whether the alien has proved a well-founded fear of persecution, are reviewed for substantial evidence. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992). “Under this standard, a court must review ‘the findings by a slightly stricter scrutiny than the clear error standard.’ ” Shirazi-Parsa v. INS, 14 F.3d 1424, 1427 (9th Cir.1994). The Board’s factual findings “must be upheld if ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’” Elias-Zacarias, 502 U.S. at 481, 112 S.Ct. at 815 (quoting 8 U.S.C. § 1105a(a)(4)). The BIA’s denial of asylum “can be reversed only if the evidence presented by [the alien] was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed.” Id. The Court added that such evidence must not only support such a conclusion, but “compel” it. Id. at 481 n. 1, 112 S.Ct. at 815 n. 1. Moreover, we do not reverse the BIA “simply because we disagree with its evaluation of the facts, but only if we conclude that the BIA’s evaluation is not supported by substantial evidence.” DeValle v. INS, 901 F.2d 787, 790 (9th Cir.1990) (quoting Diaz-Escobar v. INS, 782 F.2d 1488, 1493 (9th Cir.1986)). The BIA’s decision whether to withhold deportation is also reviewed for substantial evidence. Berroteran-Melendez, 955 F.2d at 1255.

III. ASYLUM

To qualify for a discretionary grant of asylum under the Immigration & Nationality Act, 8 U.S.C. § 1158(a), an applicant must demonstrate that she is a “refugee.” INS v. Stevic, 467 U.S. 407, 422 & n. 16, 104 S.Ct. 2489, 2496-97 & n. 16, 81 L.Ed.2d 321 (1984). The Act defines a “refugee” as an alien who “is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, [her country of nationality] 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.” 8 U.S.C. § 1101(a)(42)(A). Eligibility for asylum rests on two alternate grounds: past persecution or well-founded fear of future persecution. Desir v. Ilchert, 840 F.2d 723, 726 (9th Cir.1988).

The well-founded fear of future persecution standard has both an objective and a subjective component. To satisfy the subjective requirement, the applicant must demonstrate a genuine fear of future persecution. Shirazi-Parsa, 14 F.3d at 1427. To satisfy the objective requirement, the applicant must show “credible, direct, and specific evidence of facts supporting a reasonable fear of [future] persecution.” Id. She need not show that persecution is “probable,” only that it is a “reasonable possibility.” INS v. Cardoza-Fonseca, 480 U.S. 421, 440, 107 S.Ct. 1207, 1217, 94 L.Ed.2d 434 (1987) (quoting Stevic, 467 U.S. at 424-25, 104 S.Ct. at 2498).

Ms. Aruta bases her application for asylum on a claim of a well-founded fear of future persecution due to (1) her membership in a particular social group (her family), and (2) imputed political opinion (her father’s). The BIA did not question Ms. Aruta’s credibility or the genuineness of her fear. See Damaize-Job v. INS, 787 F.2d 1332, 1338 (9th Cir.1986) (“when the Board’s decision is silent on the question of credibility, and the Board has fully explained the rationale behind its decision, we will presume that the Board found the petitioner credible”); Platero-Cortez v. INS, 804 F.2d 1127, 1131 (9th Cir.1986) (same). Nevertheless, in a thorough and well-reasoned decision, the BIA denied her petition because it concluded that Ms. Aruta had not established that a reasonable person in her circumstances would fear persecution by the NPA or the MNLF. We agree.

1. THE NPA

In its Decision, the BIA separately analyzed the potential for the future persecution of Ms. Aruta by each of the troublesome groups. As to the NPA, the Board looked first at documentary evidence, next at expert testimony, and then at the actual experiences of the Aruta family. As to its first inquiry, the Board concluded as follows:

[N]one of the documents indicate a policy of the NPA to target family members of these officials or officials who have retired from their positions. None of the documents provide an example of any family members or former official being assassinated by the NPA_ In sum, the documentary evidence provides no indication of individuals in circumstances similar to the respondent’s having been targeted or harmed by the NPA, so as to establish a well-founded fear of persecution on this basis.

As to its second inquiry concerning experts and other declarants, the Board identified the very same deficiencies: no indication of a threat to a person in Ms. Aruta’s situation, only to those directly involved in the conflict.

As to the Aruta family’s own experiences with the NPA, the BIA’s findings were consistent with and thus supportive of its analysis of both the expert and the documentary evidence:

Additionally, the respondent’s own experiences and that of her family do not support a well-founded fear of harm by the NPA. Although the respondent’s father apparently was responsible for combatting the NPA as well as the MNLF, the respondent’s testimony and the documentary evidence only indicate specific actions against the MNLF. Additionally, the two death threats received by the respondent’s father came from the MNLF, and not the NPA. At no time has the NPA indicated knowledge of the respondent’s father or the respondent, or any inclination whatsoever to harm them. The evidence does reflect that the one sister of the respondent who has remained in the Philippines was on one occasion threatened by the NPA on the island of Mindanao, but this threat appears to have been motivated by her work as a government social worker, and not on account of her relationship to her father.

Adding all of this together, the Board concluded that “the respondent has not established that a reasonable person in her circumstances would fear persecution by the NPA if she were to return to the Philippines.”

2. THE MNLF

We now turn to the Board’s consideration of the MNLF where we find a similar picture. Once again, the documentary evidence and expert testimony fell short. As noted by the Board, “The documents submitted in the record do not indicate any particular instance where the MNLF has targeted or harmed former military, police, or government officials, or family members of current or former officials.” The Board determined that the threats mentioned in that body of evidence were mostly speculative, and that the actual cases cited were not similar to the respondent’s situation. The Board said, “[T]he circumstances of these individuals [cited as examples] appear markedly different from those of the respondent, the daughter of a former policeman and city council member, who herself had never been vocal in her opposition to the MNLF and had never undertaken any actions against the MNLF.”

As to the family’s actual experiences with the MNLF, the Board observed as follows:

The [IJ’s] finding that the respondent does not have a well-founded fear of harm by the MNLF, following her father’s retirement from both the police force and the city council, is supported by the fact that the respondent herself returned to the island of Mindanao following her university education in Cebu, even before her father’s retirement, and was not harmed or threatened with harm during the almost two years she resided there before departing the Philippines. Additionally, her sister had remained in the island of Mindanao for many more years and has had no contact or difficulties with the MNLF whatsoever.

This case contains dispositive factors similar to considerations identified in Mendez-Efrain v. INS, 813 F.2d 279 (9th Cir.1987), as “substantial evidence” supporting the BIA’s denial of a petition for asylum. Id. at 282-83. In favor of the BIA’s decision in that case, we noted that similarly situated members of the petitioner’s family continued to reside without incident on the family farm in the alleged zone of danger. As we had done in previous eases, we approved the use of such family evidence and the inferences drawn from it, stating that “it does substantially support the agency decision.” Id. at 282; see also Estrada v. INS, 775 F.2d 1018, 1021-22 (9th Cir.1985) (“The absence of harassment of an alien’s family tends to reduce the probability of persecution.”); Chavez v. INS, 723 F.2d 1431, 1434 (9th Cir.1984) (“In addition, Lopez’s family has remained in El Salvador and has not been harassed.”); Marroquin-Manriquez v. INS, 699 F.2d 129, 134 (3d Cir.1983) (“We note the evidence that petitioner’s family [which remained in Mexico and which included his wife who had similar political views] had not undergone threats, persecution, or harassment.”). The evidence in this record regarding Ms. Aruta’s sister Imelda falls squarely into this category. If anything, it more strongly supports the BIA’s decision than in our other eases because of the parity in this context of the two sisters.

Moreover, we took pains to point out in Mendez-Efrain that the petitioner, although recruited by the military, was never himself “tortured, beaten, molested, harried, or ever threatened”; and that the petitioner failed to present any concrete evidence that anyone similarly situated had ever been harmed or threatened. 813 F.2d at 283. The same can be said on both counts for Ms. Aruta.

The BIA’s decision here explicitly acknowledges that “so long as an objective situation [suggesting persecution] is established by the evidence, it need not be shown that the situation will probably result in persecution, but it is enough that persecution is a reasonable possibility.” Cardoza-Fonseca, 480 U.S. at 440, 107 S.Ct. at 1217 (quoting Stevic, 467 U.S. at 424-25, 104 S.Ct. at 2498). Therefore, we must decide whether the record contains substantial evidence that persecution is not a “reasonable possibility.” Based on the evidence to which we have referred, we believe that it definitively does. Tested by the relevant standards, the Board’s conclusions are both rational and fully supported by substantial evidence. In fact, we do not believe that a reasonable fact-finder on this record could have concluded that Ms. Aruta’s fear was objectively reasonable. Certainly the evidence does not “compel” such a finding as required by Elias-Zacarias. To reiterate what we said in Prasad v. INS, 47 F.3d 336 (9th Cir.1995), a panel may reverse the BIA’s asylum eligibility determination only if “ ‘the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.’ ” Id. at 338 (quoting Elias-Zacarias, 502 U.S. at 483-84, 112 S.Ct. at 817). The record conclusively demonstrates that Ms. Aruta’s fear was not grounded in the reality of her situation either as of 1985, the year she left, or of July 10, 1989, the date of the IJ’s decision. Thus, her fear is not “well-founded” as required by the statute.

Under the circumstances, the Board’s alternative conclusion that the alleged threat is not countrywide is irrelevant.

IV. WITHHOLDING OF DEPORTATION

Withholding of deportation requires a higher standard of proof than asylum. The applicant must show a clear probability of persecution. The applicant must establish that it is “more likely than not that the alien will suffer persecution.” Elnager v. INS, 930 F.2d 784, 786 (9th Cir.1991). Because Ms. Aruta did not satisfy the lesser standard required for. asylum, perforce she fails to show an entitlement to withholding of deportation. Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir.1995).

PETITION DENIED.

1 . A barangay is like a neighborhood or borough. Don Andres is a barangay in the city of Ipil, where Ms. Aruta’s father was on the local council. The barangay captain is the chief executive of the barangay.