Silaya v. Mukasey

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ROSALINA SILAYA, 
Petitioner, No. 06-73822
v.
 Agency No.
A71-952-683
MICHAEL B. MUKASEY, Attorney
General, OPINION
Respondent.

On Petition for Review of an Order of the
Board of Immigration Appeals

Argued and Submitted
April 17, 2008—San Francisco, California

Filed May 6, 2008

Before: Stephen S. Trott and Sidney R. Thomas,
Circuit Judges, and Michael R. Hogan,* District Judge.

Opinion by Judge Trott

*The Honorable Michael R. Hogan, United States District Judge for the
District of Oregon, sitting by designation.

4993
 SILAYA v. MUKASEY 4995

COUNSEL

Stacy Tolchin, Van Der Hout, Brigagliano & Nightingale,
LLP, Los Angeles, California, for the petitioner.

Daniel E. Goldman, U.S. Department of Justice, Washington,
D.C., for the respondent.

OPINION

TROTT, Circuit Judge:

Rosalina Silaya (“Rosalina”)1 seeks review of the BIA’s
decision denying her application for asylum, withholding of
removal (“withholding”), and protection under the Conven-
tion Against Torture (“CAT”). We have jurisdiction pursuant
to 8 U.S.C. § 1252(a)(1). Because the record compels a find-
ing that Rosalina was subjected to past persecution on account
of imputed political opinion, we grant the petition with
respect to the asylum claim and remand to the BIA.

1
We refer to petitioner and her family members by first name to avoid
confusion.
4996 SILAYA v. MUKASEY
I

BACKGROUND

Rosalina is a native and citizen of the Philippines. She
entered the United States in May of 1985 as a non-immigrant
visitor. When she remained beyond the visa’s authorized stay,
she was charged with and conceded removability. Subse-
quently, Rosalina submitted an application for asylum, with-
holding, and relief under CAT.

Rosalina was born in San Mateo Sur, Philippines. Her
father Estaqiou was a World War II veteran who served under
General Douglas McArthur. The people of San Mateo Sur
knew he was a veteran because it was a small town, and he
received a pension from the government.

While she was growing up, Rosalina heard stories about the
New People’s Army (“NPA”). The NPA “is a violent, revolu-
tionary Communist group which actively opposes the Philip-
pine government” and “has a well-documented history of
political violence.” Borja v. INS, 175 F.3d 732, 734 (9th Cir.
1999) (en banc). Rosalina was told that the NPA were “really
violent and aggressive people and that there are many mem-
bers in [her] town.”

Rosalina testified that NPA members came to her house
often and asked for food and money. She said her father gave
them what they asked for because he knew that the NPA was
against the government, and, because he was a World War II
veteran, the NPA was against him too. According to Ros-
alina’s testimony, her father feared that if he didn’t give the
NPA food or money, they would come back and hurt him and
his family. Rosalina said her family was scared of the NPA
because her “father supported the government and because he
was a military veteran.” She said also that when the NPA
came to the house and spoke to her father, “[t]hey would
always make comments like ‘when is your daughter [Ros-
 SILAYA v. MUKASEY 4997
alina] going to grow up?’ or ‘is she going to stay here and live
with you in San Mateo Sur?’ ”

Rosalina testified that when she was about fourteen, her
older sister Salvacion was kidnaped and missing for almost a
month. When Salvacion returned, “she [was] a mess. She
ha[d] a lot of bruises, scars, clothes torn apart, half-way
naked, people laugh[ed]. My sister was, lost her mind. She’s
not the same.” When questioned as to whether she knew who
had taken her sister, Rosalina said, “My father had the idea
and he said they are NPA people.” The Silayas later found out
that Salvacion had been raped.

After Salvacion was kidnaped, and when Rosalina was
approximately sixteen, Rosalina’s father sent her to Manila to
live with her sister Candelaria because it was too dangerous
for her to stay in the family home. Rosalina believed her
father sent her away to protect her from the NPA. She fin-
ished high school in Manila and worked in a bakery.

Around Rosalina’s twenty-third birthday, she went back to
San Mateo Sur to see her parents. When Rosalina’s bus
arrived in San Mateo Sur, several men from the NPA stopped
her and asked her if she was Estaqiou’s daughter. She told
them she was. The men walked her to her house, telling her
“they knew about [her] father.”

In the middle of the night, the men returned to the house.
Rosalina and her mother hid in the bedroom. The men pushed
the door to the house open and asked Estaqiou where Rosalina
was. Rosalina heard sounds like people were fighting in the
other room and heard the men saying, “I want your daughter.”
The Silaya family’s dog barked at the men until they cut its
head off with a sword.

Eventually, the men overpowered Rosalina’s father and put
a sword to his throat. They came into the bedroom and
punched Rosalina’s mother, knocking her to the ground. Ros-
4998 SILAYA v. MUKASEY
alina said she “heard the men yelling about [her] father being
a war veteran.” Although Rosalina initially fought the men,
one of them hit her, and she lost consciousness.

Rosalina woke up later to find she had been blindfolded
and taken away from her home. She was naked, her hands
were tied behind her back, and she was hanging upside down
by her feet. She could hear the men laughing at her. Over the
next three days, the men repeatedly raped her, hit her, yelled
at her, and forced her to perform oral sex. They cut her,
poured hot thick liquid on her, and burned her, possibly with
cigarettes. The men threatened to cut off her head and put her
in the fire pit. They left her hanging upside down “so she will
learn her lesson.”

After three days and three nights, the men returned Ros-
alina to her family home. She testified that the men carried
her back home and threw her in the living room, still bound
and naked. The next morning, her parents sent her back to
Manila. Rosalina later found out she was pregnant as a result
of the repeated rapes.

Rosalina was angry and ashamed by her pregnancy. She
tried to abort the baby by drinking clorox and taking pills, but
her attempts were unsuccessful. On August 29, 1983, she
gave birth to her daughter, Maria Analisa. After Candelaria
saw Rosalina hitting the baby, she sent the baby to live in San
Mateo Sur with Mr. and Mrs. Silaya. Rosalina believes that
her parents sent Maria Analisa back to Manila when she was
seven to live with Candelaria because they were “still afraid
that the NPA soldiers would come back.”

Rosalina said that although no NPA members approached
her in Manila, she was still afraid. Rosalina said she “was
fearful all the time. Wherever I went in the Philippines, even
in Manila, I was afraid the NPA soldiers would find me and
torture me again.” Because of this fear, Rosalina took a job
as a nanny and came to the United States in 1985.
 SILAYA v. MUKASEY 4999
The Immigration Judge (“IJ”) found Rosalina not credible
and denied her application for asylum on that ground. In the
alternative, he denied her application for asylum because she
did not demonstrate a nexus between the mistreatment she
suffered and a protected ground. The IJ found also that the
social group that Rosalina claimed to be a member of for refu-
gee purposes was too broad. He further found that it was pos-
sible for Rosalina to relocate to Manila. He denied also her
applications for withholding and CAT protection.

The BIA reversed the adverse credibility finding, but other-
wise affirmed the IJ. It found also that the IJ did not commit
a due process violation when he denied Rosalina’s motion to
permit her relatives to testify by telephone.

II

STANDARD OF REVIEW

We review findings of fact for substantial evidence. Li v.
Ashcroft, 356 F.3d 1153, 1157 (9th Cir. 2004) (en banc). To
reverse the BIA’s finding that Rosalina did not demonstrate
a nexus between the harm she suffered and a protected
ground, the evidence must “not only support[ ] that conclu-
sion, but compel[ ] it.” INS v. Elias-Zacarias, 502 U.S. 478,
481 n.1 (1992). Denial of relief under CAT is reviewed for
substantial evidence. Bellout v. Ashcroft, 363 F.3d 975, 979
(9th Cir. 2004).

III

DISCUSSION

A. Past Persecution

To be eligible for asylum, Rosalina must show that she is
unwilling or unable to return to her country of origin “because
of persecution or a well-founded fear of persecution on
5000 SILAYA v. MUKASEY
account of race, religion, nationality, membership in a partic-
ular social group, or political opinion.” 8 U.S.C. § 1101(a)
(42)(A). “Once eligibility is established, it is within the Attor-
ney General’s discretion to grant asylum.” Lopez-Galarza v.
INS, 99 F.3d 954, 958 (9th Cir. 1996).

As a preliminary matter, the rape and physical abuse
inflicted on Rosalina support a finding of past persecution
under 8 U.S.C. § 1101(a)(42)(A). See id. at 959. Conse-
quently, the issue before us is whether the record compels a
conclusion that the NPA subjected Rosalina to past persecu-
tion on account of a protected ground. We hold that the record
compels a conclusion that Rosalina was persecuted on
account of an imputed political opinion.

[1] “An imputed political opinion is a political opinion
attributed to the applicant by his persecutors.” Sangha v. INS,
103 F.3d 1482, 1489 (9th Cir. 1997). In order to establish
imputed political opinion, Rosalina must show that the NPA
actually attributed a political opinion to her. Id. “[P]ersecution
on account of political opinion [cannot] be inferred merely
from acts of random violence by members of a . . . political
subdivision against their neighbors who may or may not have
divergent religious or political views.” Id. at 1487. However,
evidence “[t]hat the alleged persecutor acted because of a
petitioner’s family’s political associations is sufficient” to sat-
isfy the motive requirement. Kebede v. Ashcroft, 366 F.3d
808, 812 (9th Cir. 2004) (citing Lopez-Galarza, 99 F.3d at
960). “The plain meaning of the phrase persecution on
account of the victim’s political opinion, does not mean ‘per-
secution solely on account of the victim’s political opinion.’ ”
Borja, 175 F.3d at 735 (internal quotation marks and alter-
ation omitted).

This is not the first time we have considered whether the
NPA targeted a victim for rape on account of an imputed
political opinion. In Ochave v. INS, 254 F.3d 859, 862 (9th
Cir. 2001), the petitioner and her daughter, both Philippine
 SILAYA v. MUKASEY 5001
citizens, were raped by members of the NPA while coming
home from the market. The petitioner argued that the rape
was on account of an imputed political opinion. Id.

[2] In analyzing the petitioner’s imputed political opinion
claim, we reviewed both her testimony and her application for
asylum. Id. at 865. The petitioner testified that: 1) the rape
may have been a random act of violence; 2) other people in
the area were raped; and 3) she did not know the rapists
before the attack. Id. at 863. In light of this testimony, we
explained that the only evidence in the record supporting the
petitioner’s claim that she was persecuted on account of
imputed political opinion was her statement in her application
for asylum:

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 Coun-
selor’, my family was viewed as being reactionary in
the Marxist eyes of the Communist guerrillas.

Id. at 865. Consequently, we concluded that there was no evi-
dence that the rapists knew who petitioner and her daughter
were, let alone who petitioner’s father was. Id. at 865-66. We
came to this conclusion because, among other things: 1) the
rapists never identified the petitioner by name, nor did they
mention her father or refer to politics, id. at 865; 2) the rape
did not occur in a place “that would suggest that the rapists
were seeking [the petitioner] and her daughter specifically”—
like her home, id. at 866; 3) the NPA raped and harassed a lot
of people in the area where the petitioner was raped, id.; and
4) the petitioner admitted that the NPA did not continue to
harass her or attempt to communicate with her after the rape,
“so as to suggest that this was a purposeful attack with a polit-
ical motive, rather than a despicable act of unmotivated vio-
lence against a stranger,” id. We concluded “in order to
5002 SILAYA v. MUKASEY
impute a political opinion to his victim on account of her fam-
ily’s activities, a rapist necessarily must have some idea who
the victim is. That crucial fact—which is a logical predicate
to [petitioner’s] entire claim—is not established anywhere in
this record, including her application.” Id.

Although the facts in Ochave are markedly similar in many
aspects to the facts in the case at bar, there are some key dif-
ferences that compel a different result. First, unlike in
Ochave, the NPA came to Rosalina’s house long before the
kidnaping and rape and asked her father when she was going
to grow up, indicating that they knew who Rosalina was.
Compare Ochave, 254 F.3d at 865. Second, the NPA did not
take Rosalina from a public area. Rather, after ascertaining
that Estaqiou was her father, they walked her home from the
bus stop and then returned to her home that night and kid-
naped her, again suggesting that the rapists were seeking Ros-
alina specifically. Compare id. at 866. Third, unlike in
Ochave, the rapists in this case mentioned Rosalina’s father
and referenced the fact that he was a war veteran, indicating
that the NPA knew who Rosalina was, knew who her father
was, and chose Rosalina as a victim because of her father’s
ties to the Philippine government. This is reflected in Ros-
alina’s statements that: 1) NPA members met Rosalina at the
bus stop and asked her if her father was Estaqiou; 2) the men
walked Rosalina home and told her they knew about her
father; and 3) Rosalina heard the men saying that her father
was a veteran. Compare id. at 865-66. Finally, unlike in
Ochave, Rosalina never conceded that this may have been a
random act of violence. Rather, she testified that after repeat-
edly raping her, the men hung her upside down from a tree
“so she will learn her lesson.” Compare id. at 863, 866.

[3] Rosalina has demonstrated the facts that we said in
Ochave are necessary to prove an imputed political asylum
claim—the NPA members knew who she was, knew who her
father was, and made comments indicating that Rosalina was
chosen as a victim because of her father’s ties to the Philip-
 SILAYA v. MUKASEY 5003
pine government. See also Lopez-Galarza, 99 F.3d at 960
(finding that a rape victim was eligible for asylum because
evidence showed that “[h]er family’s ties to the Somoza
regime were well-known in her community” and she was sin-
gled out for persecution because of these ties). We therefore
conclude that there is substantial evidence that compels a con-
clusion that Rosalina was persecuted on account of an
imputed political opinion and is thus eligible for asylum.

B. Future Persecution

[4] Because Rosalina suffered past persecution, she is enti-
tled to a presumption of future persecution. 8 C.F.R.
§ 1208.13(b)(1); Borja, 175 F.3d at 737-38; see also INS v.
Ventura, 537 U.S. 12, 17-18 (2002). On remand, the govern-
ment may rebut this presumption if it can show “by a prepon-
derance of the evidence that conditions in the Philippines
have changed to such an extent that [Rosalina] no longer has
a well-founded fear that she would be persecuted, should she
return there.” Borja, 175 F.3d at 738. The BIA must provide
an “individualized analysis of how changed conditions will
affect [Rosalina’s] situation.” Id. (internal quotation marks
omitted).

C. Humanitarian Asylum

[5] Even in the absence of a well-founded fear of future
persecution, because Rosalina has established past persecu-
tion, the BIA has discretion to grant her humanitarian asylum
pursuant to 8 C.F.R. § 1208.13(b)(1)(iii). See Kebede, 366
F.3d at 812 (“Asylum may be granted for humanitarian rea-
sons where a petitioner has suffered atrocious forms of perse-
cution.”) (internal quotation marks omitted). Because the BIA
did not determine whether Rosalina’s past persecution makes
her eligible for humanitarian asylum, we remand to the BIA
to consider in the first instance whether it wishes to grant her
this form of relief.
5004 SILAYA v. MUKASEY
D. Withholding of Removal

[6] The BIA held that Rosalina failed to prove eligibility
for asylum, and consequently it assumed that she could not
satisfy the higher standard for withholding. Because we hold
that Rosalia is statutorily eligible for asylum because she
established past persecution, we remand “so that the [BIA]
may apply the law to the facts” of her withholding claim. See
Mashiri v. Ashcroft, 383 F.3d 1112, 1123 (9th Cir. 2004).

E. Internal Relocation

[7] Because Rosalina has demonstrated past persecution,
the government bears the burden of proof regarding the rea-
sonableness of relocation within the Philippines. 8 C.F.R.
§ 1208.13(b)(1)(ii). In this case, it is not clear whether the
BIA held the government to its burden or whether it put the
burden of proof on Rosalina. Therefore, we remand to the
BIA to apply the proper burden of proof and to consider evi-
dence relating to the reasonableness factors listed in 8 C.F.R.
§ 1208.13(b)(3).

F. Relief Under CAT

[8] We deny Rosalina’s petition for relief under CAT
because she has not demonstrated that, more likely than not,
she will be tortured at the instigation of, or with the acquies-
cence of the Philippine government. See Zheng v. Ashcroft,
332 F.3d 1186, 1188 (9th Cir. 2003).

IV

CONCLUSION

The facts of this case compel a conclusion that members of
the NPA kidnaped, raped, and abused Rosalina because her
father was a World War II veteran. Because we conclude that
the evidence compels a finding that Rosalina was subjected to
 SILAYA v. MUKASEY 5005
past persecution on account of imputed political opinion, we
grant the petition for review with respect to the asylum claim
and remand this case to the BIA to consider future persecu-
tion, humanitarian asylum, withholding of removal, and
whether internal relocation is reasonable.2 Costs are awarded
to Silaya.

PETITION GRANTED in part and DENIED in part.

2
In light of this conclusion and the BIA’s reversal of the IJ’s adverse
credibility finding, we need not address Rosalina’s plausible claim that the
IJ’s refusal to let her witnesses testify telephonically constituted a due pro-
cess violation. However, if the BIA reaches the issue of relocation on
remand, it must afford both parties the opportunity to present additional
evidence.