[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
April 29, 2008
No. 07-12428 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
Agency Nos. A97-923-540
A97-923-541
RANDHY ANASOFIA UGAZ,
PIER CUTILLI,
Petitioners,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
_________________________
(April 29, 2008)
Before ANDERSON, HULL and KRAVITCH, Circuit Judges.
PER CURIAM:
Randhy Anasofia Ugaz, a native and citizen of Peru, petitions this court for
review of the Board of Immigration Appeals’ (“BIA”) affirmance of the
Immigration Judge’s (“IJ”) denial of asylum, 8 U.S.C. § 1158.1 After a thorough
review of the record, we grant the petition and vacate and remand for further
proceedings.
I. Background
Ugaz was admitted into the United States on July 1, 2003, as a
nonimmigrant visitor for business, with authorization to remain until August 1,
2003.2 She remained beyond this expiration period and the Department of
Homeland Services served Ugaz with a Notice to Appear and a Notice of Referral,
charging her as removable under INA § 237(a)(1)(B), 8 U.S.C. § 1227(a)(1)(B).
Ugaz applied for asylum, alleging that her work as a professional television
journalist and her affiliation with the political party, Alianza Popular
Revolucionaria Americana (“APRA”), resulted in persecution.
According to the asylum application and Ugaz’s testimony at the removal
hearing, Ugaz hired an individual named Cesar Aquino to help with a journalism
investigation into tubal ligation program. Aquino allegedly worked with the
1
Ugaz also requested withholding of removal and relief under the United Nations
Convention Against Torture. She does not seek review of the denial of this relief; therefore she
has abandoned these claims. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1228 (11th Cir.
2005). We do not discuss these claims further.
2
Her husband, Pier Cutilli, was admitted on May 2, 2002, under the Visa Waiver Pilot
program, with permission to remain until August 1, 2002. He proceeded as a derivative
applicant on Ugaz’s asylum application.
2
Catholic Church and Priest Lancier, and was involved with social programs within
Peru’s correctional facilities. Aquino put Ugaz in touch with women for her story.
Ugaz and Cutilli attended meetings with these women, with Cutilli acting as her
assistant in the investigation. Through Aquino, Ugaz met many people who had
participated in the communist movements of the SL, and Tupac Amaru. Due to her
democratic beliefs, she attempted to discourage these individuals from their
affiliation with the guerilla groups.
Ugaz later discovered that Aquino had connections with the SL. Ugaz began
receiving threatening phone calls from individuals who identified themselves as
members of the SL, who told her to stop talking about them. The callers told Ugaz
that her perception of them had to change, or she and her husband would be judged
by them.
Ugaz changed her cell phone number and went to the police regarding the
calls, but both she and the police initially believed that the callers had “made a
mistake and that is why I changed my cell phone.” However, she continued to
receive calls after changing her number. In December 2001, Ugaz received a call
instructing her, “female dog, shut your mouth.” In March 2002, Ugaz received a
call in which she was told that they were going to “close [her] beak.” Ugaz
received threatening phone calls both at her house and on her cell phone,
particularly at night. Ugaz informed her employer that she felt her life was at risk.
3
On March 25, 2002, at approximately 10 p.m., as Ugaz and Cutilli were
driving home from her work, they were stopped by three masked individuals, who
pulled them out of their car and began hitting Cutilli. Ugaz tried to defend Cutilli,
but was “hit so bad [she] couldn’t move.” The attackers warned them that “this
was only the beginning of a punishment for interfering in what wasn’t [her]
business.” After the attackers left, bystanders immediately took Ugaz and Cutilli
to the hospital. Ugaz and Cutilli filed a police report regarding the attack. She
and Cutilli then made the decision to travel to the United States, “in search of
peace.”
Ugaz and Cutilli remained in the United States for one year before Ugaz
returned to Peru in May of 200[3]. During Ugaz’s absence, Ugaz’s mother
continued to receive phone calls inquiring into Ugaz’s whereabouts. Ugaz
explained that while in the United States, her hope was that “everything should
pass by, finish, and it would be forgotten and it would be okay to go back.” She
returned to Peru “thinking that everything had ended,” but that as soon as the
guerillas found out she was back, the threatening calls resumed. On June 10, 2003,
she received a call during which she was told, “die like dogs all the enemies of the
revolution.” She called Cutilli, who had remained in the U.S., and told him not to
return to Peru. On the evening of June 20, 2003, a rock wrapped in the SL’s flag
4
and containing a message threatening her with death, was thrown through her
window. Fearful, Ugaz returned to the United States and requested asylum.
In support of her application Ugaz submitted the following records. The
2004 U.S. Department of State’s Country Reports on Human Rights Practices,
indicating that the SL was responsible for killings and other abuses; the SL
continued to kill civilians as well as military and police officials, with 120 terrorist
incidents from January to December, the vast majority of which occurred in rural
areas that historically suffered from SL violence. The report further stated that the
SL continued to be a leading violator of the rights of indigenous people, coercing
indigenous peasants into joining its ranks and demanding war taxes, and that
journalists and media outlets were intimidated during the year, with 2 reporters
killed, and 121 reported cases of harassment, including verbal or physical violence
and threats. Furthermore, one reporter received death threats after disseminating
an interview with the SL leaders.
The record also contained copies of the hospital’s medical records from the
night of the March 25 attack. The records indicate that Ugaz suffered injuries from
“[p]hysical aggression by unknown persons.” Her injuries included broken front
teeth, and deep bruising and ruptured blood vessels in her right arm and right leg,
produced by a hard, blunt object. Cutilli’s injuries included two broken ribs and
bruising at the anterior thorax and the lower 1/3 of the rib cage. The report also
5
stated that Cutilli suffered deep bruising and broken blood vessels in his face,
forearms, right wrist and both legs, produced by a hard, blunt object.
Ugaz also submitted the certified copy of the police report, dated March 26,
2002:
That on March 25, 2002, aprox[imate] time 22:00, when she was
returning from chan[n]el 4 wh[ere] she worked. . . . in the company of
her boyfriend. . . . [she was] intercepted [o]n the corner. . . . 3 [men]
got o[ut of] the car. . . . striking the known ones in different parts of
the body, causing 2 fractured ribs and multiple trauma, trying to
defend the claimant so they would stop the beating, she was also hurt
it seems by the butt of a gun provoking the breakage of two superior
front teeth. Before leaving quickly into their car, they warned. . . .
that this was only the beginning of a punishment for an interference
into something that was none of [her] business, mentioning that they
were terrorist elements of the SL. . . .
Another police report, dated June 20, 2003, described “[a]ttempted terrorism,” and
Ugaz’s report that “a rock was thrown and a subversive propaganda from [t]he
[r]evolutionary party called Sendero Luminoso. . . was around the rock, breaking
her principal front window.” She also reported receiving a death threat ten days
earlier by telephone, during which the caller said “the enemies of the revolution die
like dogs.”
Ugaz’s mother received two more calls after Ugaz returned to the United
States in June 2003; one inquiring into Ugaz’s whereabouts, and another in which
the caller said nothing and hung up. Ugaz has remained in the United States since
June 30, 2003. She explained that she had not relocated to another part of Peru
6
because the terrorists were all over the country, though mostly in rural sites. She
stated that she could not return to Peru because she is a threat to her family,
because “[t]errorism continue[d] when I was there,” and “[s]ubversive propaganda
was all over the place.”
The IJ denied Ugaz’s application for asylum, finding that Ugaz’s testimony
did not meet the burden of establishing eligibility, and that it was not detailed
enough to suggest that there was a concerted effort by the SL to inflict harm on
Ugaz and Cutilli. The IJ found Ugaz’s testimony was somewhat implausible, and
that the events did not constitute past persecution.
Ugaz appealed to the BIA, which dismissed the appeal, finding that Ugaz
failed to demonstrate either past persecution or a well-founded fear of future
persecution on a protected ground, as the calls and the beating did not rise to the
level of past persecution. Although the BIA determined that the IJ’s adverse
credibility finding was clearly erroneous, the BIA also concluded that Ugaz failed
to establish a nexus between the phone calls, the beating, and a protected ground.
The BIA further found that Ugaz’s voluntary return to Peru in April 2003
undermined the reasonableness of her claim, as did her failure to apply for asylum
during her initial one-year stay in the United States. Ugaz now petitions this court
for review.
II. Analysis
7
Because the BIA did not expressly adopt the IJ’s decision, we review only
the BIA’s decision. Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir. 2007) (internal
citations omitted).
“A factual determination by the BIA that an alien is statutorily ineligible
for asylum or withholding is reviewed under the substantial evidence test.” Al
Najjar v. Ashcroft, 257 F.3d 1262, 1283 (11th Cir. 2001) (internal quotations and
citations omitted). We must affirm the BIA’s decision “if it is supported by
reasonable, substantial, and probative evidence on the record considered as a
whole.” Id. at 1284 (internal quotations omitted). Under this test, “we view the
record evidence in the light most favorable to the agency’s decision and draw all
reasonable inferences in favor of that decision.” Adefemi v. Ashcroft, 386 F.3d
1022, 1027 (11th Cir. 2004) (en banc). Accordingly, “to conclude the BIA’s
decision should be reversed, [this court] must find that the record not only supports
the conclusion, but compels it.” Ruiz 479 F.3d at 765 (internal quotations
omitted).
The Attorney General or Secretary of Homeland Security has discretion to
grant asylum if the alien meets the definition of “refugee,” as defined by 8 U.S.C.
§ 1101(a)(42)(A). 8 U.S.C. § 1158(b)(1)(A). A refugee is defined as:
any person who is outside any country of such person’s nationality,
or, in the case of a person having no nationality, is outside any
country in which such person last habitually resided, and who is
unable or unwilling to return to, and is unable or unwilling to avail
8
himself or herself of the protection of, that country 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). The asylum applicant carries the burden of proving
statutory ‘‘refugee’’ status, and thereby establishing asylum eligibility. Al Najjar,
257 F.3d at 1284. When the agency does not make an explicit adverse credibility
determination, we consider the petitioner’s testimony to be credible. Mejia v. U.S.
Atty. Gen., 498 F.3d 1253, 1257 (11th Cir. 2007).
“To establish asylum [eligibility] based on past persecution, the applicant
must prove (1) that she was persecuted, and (2) that the persecution was on account
of a protected ground.” Santamaria v. U.S. Att’y Gen., 2008 WL 1787731, at *5
(11th Cir. Apr. 22, 2008); Silva v. U.S. Atty. Gen., 448 F.3d 1229, 1236 (11th
Cir.2006). To establish eligibility for asylum based on a well-founded fear of
future persecution, the applicant must prove “(1) a subjectively genuine and
objectively reasonable fear of persecution that is (2) on account of a protected
ground.” Id. at *5 (internal and quotation marks omitted). A showing of past
persecution creates a rebuttable presumption of a well-founded fear of future
persecution. Sepulveda v. U.S. Atty. Gen., 401 F.3d 1226, 1231 (11th Cir. 2005).
Although neither the INA nor the regulations define “persecution,” this court
has stated that “persecution is an extreme concept, requiring more than a few
isolated incidents of verbal harassment or intimidation, and that mere harassment
9
does not amount to persecution.” Sanchez Jiminez v. U.S. Att’y Gen., 492 F.3d
1223, 1232 (11th Cir. 2007) (quoting Sepulveda, 401 F.3d at 1231). The record
must be considered cumulatively, and escalating physical assaults and verbal
harassment may qualify as persecution. See Mejia, 498 F.3d at 1257-58; Delgado
v. U.S. Atty. Gen., 487 F.3d 855, 861-62 (11th Cir. 2007).
Notably, the BIA disagreed with the IJ’s finding that Ugaz’s testimony was
implausible. In addition, the BIA rejected the IJ’s determination that Ugaz had not
shown that it would be impossible to relocate within Peru. Thus, the only issue
before us is whether substantial evidence supports the BIA’s findings that Ugaz
failed to establish past persecution or a well-founded fear of future persecution on
account of a protected ground.
Upon review, we conclude that the record compels the conclusion that Ugaz
suffered past persecution on account of a protected ground. Assuming, as we must
in the absence of an explicit adverse credibility finding, that Ugaz’s testimony was
credible, the evidence demonstrates that Ugaz received numerous threatening
telephone calls over an initial 18-month period, and she suffered a violent physical
attack resulting in bodily injuries. After Ugaz left Peru, her mother continued to
receive threatening calls. And upon Ugaz’s return to Peru, the calls continued and
a rock, wrapped in the SL flag, was thrown through her living room window.
Although this court stated in Silva that the receipt of anonymous threats
10
[over a two month period], without more, does not qualify as persecution,” Silva is
distinguishable because, in this case, there was testimony that the calls referenced
the petitioner’s political activity. Cf. Silva, 448 F.3d at 1237. Furthermore, the
petitioner in Silva experienced threatening phone calls for only two months,
whereas Ugaz received them over a period of approximately 18 months prior to her
initial departure for the United States, in May 2002. Silva, 448 F.3d at 1237. And
the calls resumed when Ugaz return to Peru.
Moreover, the certified police report regarding the attack of March 25, 2002,
states that the attackers told Ugaz they were members of SL, the callers repeatedly
referenced her political vocalizations, and Ugaz testified as to the identity of her
attackers. Physical violence, coupled with verbal threats can qualify as
persecution. See Mejia, 498 F.3d at 1257-58; see also Delgado, 487 F.3d 855
(11th Cir. 2007) (granting relief where the petitioners were stopped by masked
men who pointed unloaded weapons at them and pulled the triggers, one of the
petitioners was later attacked and beaten, and in both incidents, the attackers gave
warnings as to the consequences that would flow from the petitioners’ political
opinions).
We find additional support for our conclusion in this court’s recent opinion
in Santamaria, 2008 WL 1787731, at *7-8. In that case, this court concluded that
the petitioner suffered past persecution on account of a protected ground where,
11
over a two-year period, FARC members (1) yanked her out of a car by her hair and
threatened her with death based on her political activities; (2) painted threatening
graffiti on her property explicitly referencing her political organization; (3)
tortured and killed a family groundskeeper as a penalty for not revealing her
whereabouts; and (4) beat, kidnaped, and threatened Santamaria with death before
she managed to escape. In reaching this conclusion, this court explained that
serious physical injury is not required to prove past persecution where the
petitioner demonstrates repeated threats combined with other forms of severe
mistreatment. Id.
Here, the evidence compels a finding that Ugaz did in fact experience past
persecution on account of her political opinion. This entitles her to a rebuttable
presumption that she has a well-founded fear of future persecution. On remand,
the government bears the burden of rebutting this presumption.3 Accordingly, we
grant the petition and vacate and remand for further proceedings consistent with
this opinion.
VACATED and REMANDED.
3
We note that the IJ made factual findings regarding Ugaz’s ability to relocate within
Peru, or to seek citizenship in Italy, where her husband is a citizen. The BIA, however, made no
such findings. As our review is limited to the BIA’s decision, we conclude the proper avenue is
to remand for the government to address its burden.
12