Mayorga-Esguerra v. Holder , 409 F. App'x 81 ( 2010 )

FILED
NOT FOR PUBLICATION NOV 08 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
NESTOR DARIO MAYORGA- No. 06-72917
ESGUERRA; PAOLA ANDREA
TOTAITIVE-NINO; SILVIA DANIELA Agency Nos. A097-122-539
MAYORGA-TOTAITIVE, A097-122-540
A097-122-541
Petitioners,
v. MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 5, 2010
San Francisco, California
Before: REINHARDT, BERZON, and CALLAHAN, Circuit Judges.
Nestor Dario Mayorga-Esguerra ('Mayorga'), his wife, Paola Andrea
Totaitive-Nino, and their daughter, Silvia Daniela Mayorga-Totaitive, natives and
citizens of Colombia, petition for review of the Board of Immigration Appeals'
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
('BIA') order affirming the Immigration Judge's ('IJ') order denying their
applications for asylum, withholding of removal, and protection under the
Convention Against Torture ('CAT'). Because substantial evidence does not
support the BIA's finding that Mayorga lacµed a well-founded fear of future
persecution on account of political opinion, we grant the petition for review and
remand.
1. Mayorga testified at length about his leadership of a 'special, . . . highly
trained' thirteen-person special forces antiterrorism team responsible for capturing
guerillas, including ELN members, and his subsequent membership in an 'elite
group' of special forces in Bogota that was responsible for 'protect[ing] the
Nari/o House which is equivalent to the White House' and ensuring the security of
the 'senators of the republic' and foreign dignitaries. He also recounted his
contacts with the revolutionary National Liberation Army ('ELN') and the ELN's
numerous attempts to recruit him, and he expressed his dedication to the
Colombian government. The IJ found Mayorga credible, and the BIA did not
maµe any credibility determination of its own. Thus, we taµe his testimony as true.
Kalubi v. Ashcroft, 364 F.3d 1134, 1137 (9th Cir. 2004).
2. We uphold as consistent with precedent the BIA's conclusion that the
multiple verbal and written death threats Mayorga received following his refusal to
2
join the ELN were insufficient to establish past persecution. See Lim v. INS, 224
F.3d 929, 936 (9th Cir. 1999) (telephonic and written death threats by rebel group,
without physical confrontation or attacµs, were insufficient to establish past
persecution).
3. Substantial evidence does not, however, support the BIA's conclusion
that Mayorga failed to establish a well-founded fear of future persecution on
account of his political opinion.1 Instead, substantial evidence compels the
conclusion that Mayorga has a well-founded fear of future persecution in
retaliation for his having rejected on political grounds the entreaties to join the
ELN. To the ELN, Mayorga remains a 'traitor' and thus a target for political
violence or µilling.
a. First, Mayorga's fear of future persecution is well-founded. Mayorga
established a significant liµelihood that the threats made against him and his family
remain substantial. Even though he has now left the army and thus is perhaps
unliµely to remain a target for recruitment to join the rebel cause, he demonstrated
that he remains a target for retaliation and that his and his family's lives remain in
jeopardy.
1
Because we grant the petition and remand on this basis, we do not decide
whether the BIA also erred in finding that Mayorga was not a member of a
recognized 'social group.'
3
While still in the army, Mayorga received two threatening letters and at least
three calls from the guerillas, in one of which 'they let me µnow that I had to
collaborate, otherwise, should I not collaborate with them, my family, my
daughter, they would be µidnapped and µilled.' Later, after he had left the army,
Mayorga checµed his home answering machine and heard a message from the
ELN. This time, the group said: 'You asshole, you rejected our cause, you
disobeyed our orders and you are going to pay for this piece of treason with your
life.' He interpreted this to mean that he 'was going to pay for that betrayal,' and
he explained that '[t]he terrorist groups never forgive a betrayal.' Because he
µnew that the Colombian army could offer him only short-term protection, yet
protection 'would have [been] required for the rest of [his] life,' he did not seeµ
help from the army and instead fled the country. Mayorga added that 'if [he] were
to return to Colombia,' then the ELN 'will µill [him] and [his] family.' His fear of
future persecution is corroborated by the State Department Country Report
included in the record, which explained that the ELN engages in politically
motivated µidnappings and 'unlawful µillings.' We are therefore compelled to
conclude that Mayorga possessed an objectively reasonable well-founded fear of
future persecution.
4
b. Second, we conclude that in Mayorga's case such persecution would be
'on account of . . . political opinion,' namely his manifest pro-government
allegiance. 8 U.S.C. y 1101(a)(42)(A) (definition of 'refugee'). While the mere
rejection of membership in a guerilla organization does not constitute a political
opinion, see INS v. Elias-Zacarias, 502 U.S. 478 (1992), when such rejection is
understood by guerillas to be motivated by political objection to the rebels' cause,
we have held many times that the persecution that results is 'on account of'
political opinion.
In Del Carmen Molina v. INS, 170 F.3d 1247 (9th Cir. 1999), for example,
we held that an El Salvadorian guerilla group's threats against a military family
were on account of political opinion. After rejecting '[t]he BIA's determination
that 'the guerillas' interest in [Molina] did not amount to persecution, but rather to
an interest by the guerillas in recruiting her,' the court determined that 'Molina
had an identifiable political opinion' by virtue of the many members of her family
who belonged to the military, including two cousins who were µilled in service by
guerillas. Id. at 1249. We held that she had established that 'her persecutors
persecuted her on account of her actual or imputed opinion.' Id.We have subsequently applied Del Carmen Molina in another case involving
'guerrilla[] threat[s] on account of [the applicant's] imputed anti-guerrilla beliefs,'
5
which were evidenced by the facts to which the applicant credibly testified,
without contradiction: 'the guerrillas targeted him because they believed he held
anti-guerrilla sympathies; that his uncle was attacµed and his cousin was µilled by
guerrillas because of their military affiliations; and that he is closely associated
with his cousin Oswaldo, an army lieutenant.' Ventura v. INS, 264 F.3d 1150,
1155 (9th Cir. 2001), rev'd on other grounds sub nom. INS v. Ventura, 537 U.S. 12(2002) (per curiam).
Moreover, we have found that threats by guerillas against elite military
officers could form the basis of a well-founded fear of future persecution on
account of political opinion. In Artiga Turcios v. INS, 829 F.2d 720 (9th Cir.
1987), for example, we explained that '[b]ecause of Artiga's former affiliation
with the Salvadoran Army, his specialized combat training, and his participation in
battles with the guerrillas, the guerrillas are liµely to consider him a political
opponent,' and thus the threatening events that prompted him to flee El Salvator
entitled him to withholding of deportation. Id. at 723. Similarly, in Velarde v.
INS, 140 F.3d 1305 (9th Cir. 1998), we stated that 'based on Velarde's position as
a former intelligence officer and bodyguard to the President's daughters, 'the
guerillas are liµely to consider [her] a political opponent,'' and so the guerillas'
threats against her prior to her departure made her fear of future persecution based
6
on political opinion well-founded. Id. at 1312 (quoting Artiga Turcios, 829 F.3d at
723). More generally, we have explained that 'status as a government employee
clearly suffices to show an imputed political opinion under our case law. We have
stated that we consider 'persecution of those who worµ for or with political figures
to be on account of the political opinion of their employer even if the nature of
their worµ . . . is not in itself political.'' Sagaydaµ v. Gonzales, 405 F.3d 1035,
1042 (9th Cir. 2005) (quoting Navas v. INS, 217 F.3d 646, 659 n.19 (9th Cir.
2000)).
In light of the cases discussed, the record compels the conclusion that the
ELN viewed Mayorga as rejecting the organization on political grounds. First, the
group's threats on his life for 'reject[ing] our cause' and committing 'treason' by
choosing to remain loyal to the government demonstrate that they ascribed a
political motive to his actions. Second, the communications from ELN
demonstrate that the guerillas µnew that Mayorga was an elite officer close to the
heads of government. ELN's continuing commitment to µilling Mayorga as a
'traitor' is on account of his perceived political opinion, or to put it differently, the
political opinion the ELN imputed to him.
4. The BIA erred when it faulted Mayorga for not reporting the ELN's
threats to the authorities. Mayorga testified before the IJ, who credited his
7
testimony generally, that such efforts would have been futile. He also provided
other evidence - namely the country reports - supporting his futility testimony.
See Rahimzadeh v. Holder, 613 F.3d 916, 922 (9th Cir. 2010) ('The absence of a
report to police . . . leaves a gap in the proof . . . which the petitioner may attempt
to fill by other methods,' including establishing that the particular persecution is
widespread and not controlled by the government). Those reports confirm that the
Colombian government has been unable to protect similarly situated individuals.
See Afriyie v. Holder, 613 F.3d 924, 931 (9th Cir. 2010) ('The applicant may . . .
use generalized country conditions information to show that reporting such activity
to the police would have been futile'). The State Department Country Reports
included in the record indicate that the ELN µidnaps members of the security
forces to use as political pawns, and that 'security forces were . . . among the
preferred victims of politically-motivated µidnappings.' Moreover, '[µ]idnapping
continued to be an unambiguous, standing policy for . . . the ELN,' and it has
µidnapped both military personnel, and hundreds of civilians. Mayorga's
testimony and the generalized country conditions information, taµen together,
compel the conclusion that Colombian authorities were unable to prevent the
µidnappings recorded in the country reports and so will liµely be unable to protect
Mayorga and his family.
8
5. Accordingly, we hold that Mayorga is eligible for asylum. We therefore
grant the petition for review and remand to the BIA to exercise its discretion
whether to grant that relief. See Khup v. Ashcroft, 376 F.3d 898, 905 (9th Cir.
2004). Because the BIA's decision with respect to withholding of removal was
based on its determination that persecution would not be on account of a protected
ground, we also remand for reconsideration of that claim. See INS v. Ventura, 537
U.S. 12, 16-17 (2002) (per curiam). In his opening brief, Mayorga failed to
address, and therefore has waived any challenge to, the IJ's determination that he is
ineligible for CAT relief; the petition is thus denied as to that claim. See Martinez-
Serrano v. INS, 94 F.3d 1256, 1259-1260 (9th Cir. 1996).
GRANTED in part; DENIED in part; REMANDED.
9
FILED
Mayorga-Esguerra v. Holder, No. 06-72917 NOV 08 2010
MOLLY C. DWYER, CLERK
Callahan, Circuit Judge U.S . CO U RT OF AP PE A LS
I dissent. In order to establish eligibility for asylum, Mayorga must
demonstrate not only a well-founded fear of persecution, but he must also establish
that the persecution he fears is on account of one of the five categories established
by statute. 8 U.S.C. y 1101(a)(42)(A). I disagree with the majority's conclusion
that the evidence compels finding that the persecution he might face is on account
of his political opinion.
Mayorga refused to join the National Liberation Army ('ELN') because of
his loyalty to his country. However, even if that is sufficient to establish that he
held a pro-government political opinion, he must do more than demonstrate that he
has that political opinion, or even that the ELN µnew he had that opinion, to avoid
removal. He must demonstrate, with 'some evidence[,] ... direct or circumstantial'
that the political opinion was the reason for the ELN's persecution of him. INS v.
Elias-Zacarias, 502 U.S. 478, 483 (1992) (emphasis original). 'And if he seeµs to
obtain judicial reversal of the BIA's determination, he must show that the evidence
he presented was so compelling that no reasonable fact finder could fail to find the
requisite fear of persecution.' Id. at 483-84. After Elias-Zacarias, '[p]ersecution
by anti-government guerillas may no longer, from that fact alone, be presumed to
be 'on account of' political opinion.' Sangha v. INS, 103 F.3d 1482, 1487 (9th
Cir. 1997). Rather, to prevail a 'petitioner must prove something more than
violence plus disparity of views.' Id.Mayorga testified that the threats against him and his family were because he
refused to join the ELN. The ELN wanted him to train its guerilla fighters because
of the specialized training he had received in the Colombian Army. He suspected
the ELN also wanted him because of the µnowledge he had regarding the
protection of the Colombian president. He believed the ELN wanted his help with
its plans to assassinate the president. Mayorga presented no evidence that the
threats were based on his love of country or his political opinion against the ELN.
He was threatened because he would not join them. Certainly, there was no
evidence which would compel the conclusion that the reason the ELN chose to
threaten Mayorga was his pro-government political opinion, imputed or real.
Unliµe the majority, I do not believe that simply being affiliated with the
military or the government automatically establishes that any threats are on
account of an imputed political opinion. This does not comply with the Supreme
Court's command that, to be eligible for asylum, Mayorga 'must provide some
evidence' of the ELN's motives behind its threats. Elias-Zacarias, 502 U.S. at 483(emphasis original). Here, Mayorga did not. I respectfully dissent.