Marcos v. Gonzales ( 2005 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELMER DOMINGO MARCOS, 
Petitioner, No. 02-73968
v.
 Agency No.
A46-012-583
ALBERTO GONZALES, Attorney
General,* OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 15, 2005**
San Francisco, California
Filed June 9, 2005
Before: Sidney R. Thomas, Susan P. Graber, and
Richard A. Paez, Circuit Judges.
Opinion by Judge Paez;
Dissent by Judge Graber
*The court sua sponte changes the docket to reflect that Alberto Gon-
zales, Attorney General, is the proper respondent. The Clerk shall amend
the docket to reflect the above caption.
**This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)
6717
MARCOS v. GONZALES 6721
COUNSEL
Helen B. Zebel, San Francisco, California, for the petitioner.
Susan K. Houser, Washington, D.C., for the respondent.
OPINION
PAEZ, Circuit Judge:
An immigration judge (“IJ”) denied petitioner Elmer
Domingo Marcos asylum, 8 U.S.C. § 1158, withholding of
removal, 8 U.S.C. § 1231(b)(3), and relief under the Conven-
tion Against Torture (“CAT”), 8 C.F.R. § 208.16(c), after an
administrative hearing. The IJ found that Marcos’s testimony
lacked credibility, that the scenario of death threats he
described did not rise to the level of persecution, and that
Marcos’s fear of future persecution was undermined by
changed country conditions in the Philippines. Marcos peti-
tions for review of the Board of Immigration Appeals’
(“BIA”) decision affirming without opinion the IJ’s ruling.1
See 8 C.F.R. § 1003.1(e)(4) (2002). We have jurisdiction
under 8 U.S.C. § 1252, and we review the IJ’s decision as the
final agency determination. Singh v. Gonzales, 403 F.3d 1081,
1083 (9th Cir. 2005). We hold that the IJ’s decision was not
1
Marcos also raises a due process challenge to the BIA’s decision to
streamline his case. See 8 C.F.R. § 1003.1(e)(4) (2002). That argument is
foreclosed by Falcon Carriche v. Ashcroft, 350 F.3d 845, 850 (9th Cir.
2003). In light of our disposition, Marcos’s argument that the decision to
streamline violates the streamlining regulations is moot. See Vukmirovic
v. Ashcroft, 362 F.3d 1247, 1253 (9th Cir. 2004).
6722 MARCOS v. GONZALES
supported by substantial evidence, and we remand for further
consideration in light of this opinion.
I. Facts
Marcos, a native and citizen of the Philippines, worked as
a medical technician for the Red Cross in Laoag City in the
Philippines from July 1979 to June 1996, when he fled to the
United States. Marcos owned an amateur or “HAM” radio,
and in 1984 he joined the Philippine military’s Civilian Home
Defense Forces as a volunteer radio operator. He became
vice-president of operations of the Regional Emergency
Assistance Communication Team. Over his radio, Marcos
reported any sightings of New People’s Army (“NPA”) mem-
bers to the Philippine military.2 Because the NPA knew the
military’s radio frequency and could listen to their broadcasts,
Marcos used a security code to identify himself to military
officials while shielding his identity from the NPA. In 1988
and 1989, the NPA made general threats over the radio “stat-
ing that they were going to kill members of the Civilian Home
Defense Forces . . . .”
In 1990, however, the NPA discovered Marcos’s name and
identity when one of Marcos’s crew members lost his car,
along with a list of radio operators’ names and security codes.3
Marcos then began receiving personal threats from the NPA
over the radio. He testified that he received about ten death
threats every month in 1990 and 1991. Marcos was also
threatened in person at times, at least once by an NPA mem-
ber whom Marcos recognized and who called himself Scar
Ben Hur. Scar Ben Hur came to the Red Cross office and
2
The NPA is “a violent, revolutionary Communist group which actively
opposes the Philippine government” and has “a well-documented history
of political violence . . . .” Borja v. INS, 175 F.3d 732, 734 (9th Cir. 1999)
(en banc).
3
Marcos testified to this incident at his hearing although he did not
include it in the declaration that he submitted with his asylum application.
MARCOS v. GONZALES 6723
threatened to kill Marcos if he did not stop reporting to the
military. Marcos testified that he also received telephone
threats at his house, sometimes as often as three to five times
per day, from 1988 to 1995. He stated that he reported the
threats to the military, and was provided with security at his
office. The military did not provide 24-hour protection, how-
ever, and “could not apprehend” the NPA members who
threatened Marcos, because, according to Marcos’s testimony,
“they only approach[ed] me whenever they knew that the
security who is with me is out.” Because he feared for his life
and the military could not provide protection, Marcos testified
that he stopped doing disaster relief work anywhere outside of
his local municipality.
Marcos nonetheless continued his work for the Philippine
military because he opposed the NPA’s Communist philoso-
phy. He continued to receive threats until he fled the country
in 1996, although the threats decreased in frequency. Marcos
testified that he received threats three to five times each
month in 1992 and 1993, once or twice a month in 1994 and
1995, and approximately three times in 1996 until he left the
Philippines. As he stated in his declaration, “[a]lthough it was
unsafe for me to remain in the Philippines, I had no way to
depart. Finally in 1996, my brother-in-law’s relative visa peti-
tion for my wife became current” and Marcos was able to
leave the Philippines as a derivative beneficiary of that peti-
tion.
The visa petition filed by Marcos’s brother-in-law,
Demetrio Edralin, had been approved in 1977; however,
Edralin died in 1990. At the American consulate in the Philip-
pines in 1996, Marcos provided an address on his visa appli-
cation for his deceased brother-in-law. After Marcos had
arrived in the United States, the Immigration and Naturaliza-
tion Service charged that he had procured entry by fraud.
Marcos, however, testified that he was unaware that Edralin’s
death made him ineligible for the visa; he claimed that his
wife filled out the paperwork and that he signed it without
6724 MARCOS v. GONZALES
reading it. He testified that he didn’t tell the INS that Edralin
had died “because they didn’t ask.”
The IJ “d[id] not believe that [Marcos’s] testimony [was]
believable” because he “failed to disclose to the Consul the
death of his brother-in-law.” The IJ also cited Marcos’s fail-
ure to produce documentation of his employment with the
Red Cross, but did not comment on how that affected his
credibility. The IJ also concluded that “the scenario of perse-
cution, which the respondent described, does not rise to the
level of that contemplated by the statute.” She noted that the
NPA had not “followed up on any threats,” undermining any
claim of past persecution. Finally, the IJ concluded that there
had been “a substantial change in the country conditions” in
the Philippines, which further undermined Marcos’s petition.
The IJ denied Marcos’s application for asylum, withholding
of removal, and relief under CAT, and denied voluntary
departure. Marcos timely petitioned for review of that deci-
sion.
II. Credibility Determination
[1] We review the IJ’s adverse credibility determination for
substantial evidence. Akinmade v. INS, 196 F.3d 951, 954 (9th
Cir. 1999). Our review focuses only on the actual reasons
relied upon by the IJ. “[W]hen each of the IJ’s or BIA’s prof-
fered reasons for an adverse credibility finding fails, we must
accept a petitioner’s testimony as credible.” Kaur v. Ashcroft,
379 F.3d 876, 890 (9th Cir. 2004). The IJ must provide spe-
cific and cogent reasons to support an adverse credibility find-
ing, and those reasons “ ‘must be substantial and bear a
legitimate nexus to the finding.’ ” Id. at 884 (quoting Salaam
v. INS, 229 F.3d 1234, 1238 (9th Cir. 2000)). We conclude
that the reasons the IJ cited here are not valid grounds to sup-
port an adverse credibility determination, and we are therefore
compelled to reverse that finding. Id. at 885.
The portion of the IJ’s decision that bears on Marcos’s
credibility reads in its entirety:
MARCOS v. GONZALES 6725
First the Court will comment upon the credibility of
the respondent. The Court concludes that since the
respondent failed to disclose to the Consul the death
of his brother-in-law, the Court does not believe that
the respondent’s testimony is believable with regard
to the asylum aspect of the case. The respondent
claimed that he worked for the Red Cross; however,
he has no identity document from the Red Cross.
Respondent also does not have any documents show-
ing that he resigned from the Red Cross.
Neither Marcos’s erroneous visa application nor his failure to
produce corroborating evidence from the Red Cross is a valid
basis for an adverse credibility finding.
[2] First, Marcos’s failure to disclose his brother-in-law’s
death on his visa application does not support an adverse
credibility determination. “We have held . . . that inconsisten-
cies in the petitioner’s statements must go to the heart of his
asylum claim to justify an adverse credibility finding.” Guo
v. Ashcroft, 361 F.3d 1194, 1201 (9th Cir. 2004) (quotation
marks omitted). As we have explained, “if discrepancies ‘can-
not be viewed as attempts by the applicant to enhance his
claims of persecution [they] have no bearing on credibility.’ ”
Chen v. INS, 266 F.3d 1094, 1100 (9th Cir. 2001) (quoting
Damaize-Job v. INS, 787 F.2d 1332, 1337 (9th Cir. 1986)),
overruled on other grounds by 537 U.S. 1016 (2002), on
remand to 326 F.3d 1316 (9th Cir. 2003). We have drawn a
clear distinction between “false statements made to establish
the critical elements of the asylum claim [and] false state-
ments made to evade INS officials.” Akinmade, 196 F.3d at
956. Marcos’s visa application falls squarely within the sec-
ond category and thus “cannot serve as a basis for an adverse
credibility determination.” Id. The false statement is simply
unrelated to the basis for Marcos’s asylum claim.
[3] Contrary to the government’s assertions, nothing in our
caselaw suggests that, to be excusable, a lie must be told out
6726 MARCOS v. GONZALES
of fear; the underlying motive is not determinative. We have,
for example, found that “ ‘the presentation of a fraudulent
document for the purpose of escaping immediate danger from
an alien’s country of origin or resettlement, or for the purpose
of gaining entry into the United States’ ” may be “ ‘fully con-
sistent with the claim of asylum . . . .’ ” Id. at 955 (emphasis
in original) (quoting In re O-D-, 21 I. & N. Dec. 1079, 1081
(BIA 1998)). Because either purpose is acceptable, fear can-
not be a requirement—and Marcos’s inadvertent failure to
disclose his brother-in-law’s death therefore has little bearing
on his credibility.4 Our cases do suggest that a petitioner’s
misrepresentations at entry in order to secure admission to
this country can affirmatively support his claim of fear of per-
secution. See Turcios v. INS, 821 F.2d 1396, 1400-01 (9th Cir.
1987). But that in no way means that omissions such as
Marcos’s—which were unrelated to his fear of persecution—
should detract from that claim.
[4] In Turcios, we noted that “[u]ntrue statements by them-
selves are not reason for refusal of refugee status and it is the
examiner’s responsibility to evaluate such statements in the
light of all the circumstances of the case.” Id. at 1400. The IJ
in this case never undertook the required examination, and did
not explain how the failure to disclose Edralin’s death was
relevant to Marcos’s asylum petition. The government points
out several inconsistencies in Marcos’s testimony upon which
the IJ could have based an adverse credibility finding. But the
4
As noted above, Marcos testified that his failure to disclose Edralin’s
death was simply a misunderstanding rather than an attempt to avoid
detection. The IJ never doubted the veracity of that testimony. Even if
Marcos had lied at his asylum hearing about his reasons for the omission,
however, that would not support an adverse credibility determination. See
Akinmade, 196 F.3d at 956 (“Whether the petitioner was directly involved
in falsifying the Canadian passport, or whether he lied about how he
obtained his airline ticket from South Korea to the United States, has little,
if anything, to do with whether he fled Nigeria for fear of persecution.”).
Marcos’s visa application “concerns facilitating travel and entry into the
United States and is ‘incidental’ to [his] claim of persecution.” Id.MARCOS v. GONZALES 6727
IJ did not in fact rely upon those inconsistencies, and we
therefore cannot rely on them as part of our review of the IJ’s
decision.5 “Because the IJ expressed no further concerns, and
the only explicitly articulated reasons rested on impermissible
factors, then we conclude from the IJ’s opinion that [the peti-
tioner] was an otherwise credible witness.” Damaize-Job, 787
F.2d at 1338 (emphasis added).
[5] Finally, the IJ faulted Marcos for failing to provide doc-
umentation of his work for the Red Cross. Once we have
determined that the IJ’s proffered reasons for an adverse cred-
ibility determination are “insufficiently supported,” however,
an applicant “is not required to provide corroboration to
establish the facts to which she testified.”6 Kaur, 379 F.3d at
890; see also Gui, 280 F.3d at 1227. In sum, because neither
5
Furthermore, the IJ never suggested that the nondisclosure had any
bearing on Marcos’s “general propensity to tell the truth,” as the dissent
proposes. Dissent at 6733. Even if the IJ had, such a general finding would
not provide the specific, cogent, and substantial reasons that we require to
support an adverse credibility finding. See Gui v. INS, 280 F.3d 1217,
1225 (9th Cir. 2002); see also Chen v. Ashcroft, 362 F.3d 611, 621 (9th
Cir. 2004) (holding that an IJ’s “general conclusion” that the petitioner’s
testimony, taken as a whole, was not credible, “amounts to no more than
speculation and conjecture once we reverse each of the IJ’s credibility
findings” and thus could not support an adverse credibility determination).
6
Although Marcos told the IJ he could produce the identity document,
she demanded it immediately on the day of the hearing. Marcos does not
raise an objection to the IJ’s requirement; given our disposition we need
not address this argument in any event. But we note that such a require-
ment raises serious due process concerns by depriving Marcos of his guar-
antee of “a reasonable opportunity to present evidence on his behalf . . . .”
See Cano Merida v. INS, 311 F.3d 960, 964 (9th Cir. 2002); see also
Chen, 362 F.3d at 620 (“we have held that due process requires that an
applicant be given a second opportunity to establish eligibility for asylum
where the adverse credibility determination was based, without notice to
the applicant, on a failure to produce a relative as a corroborating wit-
ness”); Campos-Sanchez v. INS, 164 F.3d 448, 450 (9th Cir. 1998) (“the
BIA must provide a petitioner with a reasonable opportunity to offer an
explanation of any perceived inconsistencies that form the basis of a
denial of asylum”).
6728 MARCOS v. GONZALES
ground cited by the IJ is supported by substantial evidence,
we reject the adverse credibility determination and accept
Marcos’s testimony as true. Kaur, 379 F.3d at 890. We turn
to the merits of his claim.
III. Eligibility for Asylum
[6] The IJ concluded that Marcos was ineligible for asylum
both because he failed to demonstrate he had suffered past
persecution and because he did not have a well-founded fear
of future persecution. The IJ’s finding regarding past persecu-
tion is supported by substantial evidence. Credible death
threats such as Marcos received here can support a finding of
past persecution. See, e.g., Garrovillas v. INS, 156 F.3d 1010,
1016 (9th Cir. 1998) (holding that death threats from the NPA
“are persuasive evidence of past persecution”). In Lim v. INS,
however, we “avoid[ed] announcing a blanket rule that in
every case threats, without more, compel a finding of past
persecution.” 224 F.3d 929, 936 (9th Cir. 2000). We noted
that “[t]hreats standing alone . . . constitute past persecution
in only a small category of cases, and only when the threats
are so menacing as to cause significant actual ‘suffering or
harm.’ ” Id.; see also Hoxha v. Ashcroft, 319 F.3d 1179, 1182
(9th Cir. 2003). Here, we do not decide whether the evidence
Marcos presented would permit a finding of past persecution;
given our discussion in Lim, it is clear that Marcos has not
presented evidence that compels such a finding. 224 F.3d at
936. We therefore do not disturb the IJ’s conclusion that Mar-
cos has not demonstrated past persecution.
[7] Marcos is nonetheless eligible for asylum based on fear
of future persecution because he has demonstrated a reason-
able possibility that he will suffer persecution if he were to
return to the Philippines. 8 C.F.R. § 208.13(a), (b)(2)(i)(B).
To suffice under this standard, a future threat “need not be
statistically more than fifty-percent likely; . . . even a one-
tenth possibility of persecution might effect a well-founded
fear.” Lim, 224 F.3d at 934. “For a fear to be well founded,
MARCOS v. GONZALES 6729
it must be both subjectively genuine and objectively reason-
able.” Id. The IJ’s conclusion that Marcos had not met his
burden was not supported by substantial evidence. Kaiser v.
Ashcroft, 390 F.3d 653, 657 (9th Cir. 2004).
[8] First, the IJ noted that the NPA had not followed
through on any of its threats against Marcos. But, as we have
held, “that none of the threats against Petitioner[ ] have yet to
be carried out does not render [his] fear unreasonable.” Id. at
658. “What matters is whether the group making the threat
has the will or ability to carry it out.” Bolanos-Hernandez v.
INS, 767 F.2d 1277, 1285 (9th Cir. 1984) (cited in Kaiser, 390
F.3d at 658-59). The NPA had both the will and the ability
here. See Briones v. INS, 175 F.3d 727, 729 (9th Cir. 1999)
(en banc); see also U.S. Department of State, Philippines
Country Report on Human Rights Practices for 1997
(“Country Report”) at 4.
[9] Second, the IJ found that Marcos’s application was
undermined by “a substantial change in the country condi-
tions” in the Philippines. To support this conclusion, the IJ
cited only the 1997 Country Report, which, she noted, “indi-
cates that the government generally respects the human rights
of its citizens.” See Country Report at 1. This statement in the
Country Report, however, does not undermine Marcos’s well-
founded fear of persecution at the hands of the NPA, a non-
governmental group; Marcos does not claim that the Philip-
pine government poses any threat to him.7 The Country
7
In any event, the IJ took this phrase out of context. The 1997 Country
Report in fact states:
The Government generally respected the human rights of its citi-
zens; however, there were problems in some areas. Members of
the security forces were responsible for extrajudicial killings, dis-
appearances, torture and other physical abuse of suspects, and
arbitrary arrest and detention.
Country Report at 1. Furthermore, the State Department’s 1998 Profile of
Asylum Claims and Country Conditions regarding the Philippines
6730 MARCOS v. GONZALES
Report itself is inconsistent with the IJ’s conclusion, and
states: “Although the Communist insurgency, with its military
wing the New People’s Army (NPA), is greatly reduced from
its height in the 1980s, NPA insurgents killed many persons,
including civilians.” Id. at 4. To conclude that country condi-
tions had changed, in short, the IJ relied on grounds that were
irrelevant to Marcos’s petition. The “mitigating factors cited
by the [IJ] are insufficient to obviate [the petitioner’s] reason-
able fear.” Lim, 224 F.3d at 935.
The IJ here, of course, did not rely on the diminished
strength of the NPA to support her decision. Even if she had,
however, such reasoning is insufficient to support the denial
of asylum under our cases involving very similar facts. In
Briones, for example, we reversed the BIA’s determination
that the petitioner’s fear of persecution at the hands of the
NPA was unreasonable. 175 F.3d at 728. We noted, “[i]f the
NPA will kill business people who do not contribute to their
cause, it takes little imagination to understand what they
would do to a successful informer for the Phillipine [sic] mili-
tary.” Id. at 729. On the basis of the State Department Coun-
try Report in evidence before the IJ in Briones,8 we concluded
that “the NPA, although somewhat weaker than before,
remains capable of killing its opponents.” Id. In Lim, we reaf-
firmed our decision in Briones and, “despite some evidence
that might mitigate the probability of persecution,” we held
that the evidence compelled the conclusion that the petitioner
had a well-founded fear of future persecution based on threats
(“Profile”), which the IJ admitted into evidence, notes that
“[n]ongovernmental organizations (NGO’s), which include the Commis-
sion on Human Rights (CHR), place the blame for the majority of human
rights abuses, including extrajudicial killings, on police and military
forces.” Profile at 3.
8
It is unclear which year the Country Report admitted in evidence in
Briones was published. The administrative hearing in that case was held
on April 26, 1996 and the BIA’s decision was issued on March 10, 1997.
Opening Brief for the Petitioner, Briones (No. 97-70321).
MARCOS v. GONZALES 6731
from the NPA. 224 F.3d at 935. We considered the IJ’s find-
ing in Lim that “the strength of the NPA has been substan-
tially diminished in the Philippines” insufficient to support
the denial of asylum. Id. at 933; see also Mejia v. Ashcroft,
298 F.3d 873, 877 (9th Cir. 2002).
Neither did the IJ here rely on grounds specific to Marcos’s
testimony. While Marcos did testify that the threats on his life
decreased over time, from approximately ten times per month
in the first years to three times in the first half of 1996, the
IJ did not rely on that testimony as a basis for her decision.
Furthermore, Marcos’s account actually supports his legal
claim and corroborates the 1997 Country Report’s description
of the NPA’s decreasing power. As Marcos testified, the years
1989 to 1990 were “the height of the NPA” in his county. In
1996, nonetheless, Marcos received three death threats in
fewer than six months from an organization with “a well-
documented history of political violence, including the mur-
der of its opponents.” Borja, 175 F.3d at 734. The fact that
these threats occurred less frequently than before does not
support the IJ’s conclusion that Marcos’s fear of future perse-
cution was unreasonable.9
[10] Finally, the IJ here “failed to apply the relevant facts
in the [State Department reports] to the specific threat faced
by [the petitioner].” Id. at 739. As noted above, the IJ relied
only on her irrelevant conclusion that the Philippine govern-
ment “generally respects” human rights. But, while other
excerpts of the Country Report cite changing conditions and
decreasing NPA power, the IJ did not make any individual-
ized determination whether the changed conditions reported
9
The dissent points out that Marcos’s family remained unharmed in the
Philippines. Dissent at 6734. As we have stated, this fact does not mitigate
a well-founded fear of persecution because Marcos’s family is not “simi-
larly situated to the applicant”—his family members were not NPA
informers for the Philippine government. Lim, 224 F.3d at 935. In short,
“nothing in the record supports an inference that their safety ensures that
[the petitioner] will be safe.” Id.6732 MARCOS v. GONZALES
in the Country Report will affect Marcos’s specific situation.
See id. at 738. An “individualized analysis” is required in this
circuit, and the IJ “erred as a matter of law in failing to do the
requisite analysis.” Id. at 739 (citing Garrovillas, 156 F.3d at
1017).
IV. Conclusion
[11] The IJ’s adverse credibility determination was not sup-
ported by substantial evidence. Taking Marcos’s testimony as
true, therefore, we conclude that, although the evidence does
not compel a finding of past persecution, Marcos has estab-
lished a well-founded fear of future persecution by the NPA
if he were to return to the Philippines. Moreover, we conclude
that the IJ’s determination of changed country conditions was
not supported by substantial evidence. We remand for further
proceedings, accepting Marcos’s testimony as credible and as
establishing a well-founded fear of future persecution, to
determine his eligibility for asylum, withholding of removal,
and relief under CAT. See He v. Ashcroft, 328 F.3d 593, 603-
04 (9th Cir. 2003).
PETITION FOR REVIEW DENIED in part,
GRANTED in part, and REMANDED.
GRABER, Circuit Judge, dissenting:
I respectfully dissent.
In 1996, in a sworn visa application, Petitioner listed his
brother-in-law’s current address at a house in Virginia, even
though he knew that the man had died six years earlier. Peti-
tioner claimed that he had not read the form that his wife
filled out. But it was his form that contained the fraud.
Although our past cases do hold, as the majority notes,
page 6725, that an applicant’s lie to gain entry to the United
MARCOS v. GONZALES 6733
States does not necessarily prejudice the applicant’s later asy-
lum application, I do not read those cases as going so far as
to say that an IJ may not consider a past lie or act of fraud to
bear on an applicant’s general propensity to tell the truth. To
the contrary, our cases have noted that an applicant’s misrep-
resentations should be assessed in view of all the circum-
stances of the case. See Turcios v. INS, 821 F.2d 1396, 1400
(9th Cir. 1987) (holding that, although untrue statements on
an application are not reason alone to refuse refugee status, “it
is the examiner’s responsibility to evaluate such statements in
the light of all the circumstances of the case”). Here, the past
fraud provided a legitimate basis for the IJ to seek corroborat-
ing evidence, because the fraud called into question Petition-
er’s truthfulness. See Guo v. Ashcroft, 361 F.3d 1194, 1201
(9th Cir. 2004) (holding that, when an applicant’s credibility
is in question, the IJ’s or BIA’s adverse inference will with-
stand appellate review if the applicant failed to produce mate-
rial, non-duplicative, available corroboration); Sidhu v. INS,
220 F.3d 1085, 1090-92 (9th Cir. 2000) (same). This is not a
case — like Akinmade v. INS, 196 F.3d 951 (9th Cir. 1999),
and Turcios, for example — in which the applicant lied out
of fear of immediate danger or fear of future persecution,
motivating the desire to gain entry into the United States.
Petitioner says, instead, that he lied out of laziness.
Additionally, Petitioner’s declaration stated that he was
threatened in 1988-89, whereas he testified instead that the
threats occurred in 1989-96. This huge discrepancy goes to
the heart of his asylum claim because, among other things, it
affects the reasonableness of his claimed fear of future perse-
cution. Similarly, Petitioner testified that the NPA knew his
name and knew him “particularly,” yet stated in his declara-
tion that he simply was worried that the NPA might figure out
his identity. This significant discrepancy, too, goes to the
heart of the asylum claim.
Although the IJ did not rely on those two discrepancies as
reasons to disbelieve Petitioner, and thus we cannot rely on
6734 MARCOS v. GONZALES
them directly to support denial of the petition, this credibility-
undermining information is part of the record that supports
the IJ’s insistence on receiving easily available, material, non-
duplicative corroborative evidence. In my view, therefore, the
IJ properly relied on the absence of such corroborating evi-
dence to disbelieve Petitioner. I would affirm the adverse
credibility finding on that ground.
Alternatively, the finding that Petitioner would not be sub-
ject to future persecution is supported by substantial evidence.
I agree with the majority that the record does not compel a
finding of past persecution, p. 6728, so no presumption of
future persecution operates in Petitioner’s favor. See Molina-
Estrada v. INS, 293 F.3d 1089, 1094 (9th Cir. 2002) (noting
that a failure to establish past persecution does not trigger a
presumption of future persecution). As the majority concedes,
p. 6731, the State Department Country Report describes
improved conditions in the Philippines. See id. at 1096 (con-
cluding that when a petitioner has not established past perse-
cution, the IJ may rely on a State Department report in
considering whether the petitioner has demonstrated that there
is a good reason to fear future persecution).1 The record dem-
onstrates that Petitioner’s own situation improved, too. Peti-
tioner admitted in his testimony (assuming that it was
credible) that the threats against him had decreased over time,
from around ten times per month in the period 1989 to 1991,
tapering to three times during all of 1996 — which individu-
ally corroborates the country reports in Petitioner’s own case.
Moreover, Petitioner’s wife, child, parents, brother, and sister
live in the Philippines without problems. See Lim v. INS, 224
F.3d 929, 935 (9th Cir. 2000) (holding that ongoing family
safety can be used to “mitigate a well-founded fear, particu-
1
The IJ relied on the State Department report to find “that there has
been a substantial change in the country conditions.” She also relied on
Petitioner’s individual situation when she observed that the NPA had
never followed up on any of the previous threats (assuming them to be
credible).
MARCOS v. GONZALES 6735
larly where the family is similarly situated to the applicant
and thus presumably subject to similar risk”).
For these reasons, under our deferential standard of review,
the petition must be denied. I respectfully dissent from the
majority’s contrary conclusion.