Santiago Nahun Ontunez-Tursios v. John Ashcroft, U.S. Attorney General

WIENER, Circuit Judge,

dissenting:

Recorded history is replete with examples of class struggles over land between the land-less and the landed. Some clashes have been armed and violent; others have been political and non-violent. In most instances, the land-less protagonist comprised the poor, the dispossessed, the disenfranchised; the landed protagonist comprised the wealthy, the socially prominent, the politically potent. In combination, these traits have produced multi-fac-eted motivations, defying analytical efforts to isolate any single factor as the sole producing “cause” of the conflict,. Indeed, in these class struggles cum land use or ownership struggles, the intertwining of the political, economical, social, and property-holding motivations inevitably proves inextricable, rendering fruitless any analytical effort to isolate one causal factor. As such, attempts to parse these elements invariably prove speculative at best, presenting classic examples of the venerable riddle, “which came first, the chicken or the egg?”

Thus history’s lesson is that when the political-social-economic “haves” (hereafter the “elite”) are the ones who initiate the land grab (whether by facially lawful processes, by coercion, by duress, or even by force), they do so not solely to entrench or enhance their financial worth, but also to entrench or enhance their political and societal standing, influence, and control. Conversely, when the political-social-economic “have nots” (hereafter, the “underclass”) are the ones who initiate the land grab (whether by exercising the vote or engaging in non-violent acts of civil disobedience, or even by fomenting violent risings or revolutions) they do so not solely to improve their economic well being and obtain landed status; they also do so to dislodge the numerically inferior elite from exclusive land ownership and control, social preeminence, and political domination.

Persecution is a frequent byproduct of these land struggles: sometimes subtle, sometimes heavy-handed; sometimes preventive, sometimes exemplary or vengeful; but persecution nonetheless. When viewed in historical context, any effort to identify a single “belief’ that the prevailing class ascribes to targeted members of the opposing class as the justification for persecution inevitably results in either fruitlessness or an overly simplistic (and inaccurate) conclusion. A faithfully objective analysis inevitably identifies an inseparable combination of beliefs that brings persecution to the holder.

*356This is the stuff that mixed motivation is made of; and the panel majority’s approbation of the immigration judge’s (IJ) and the Board of Immigration Appeal’s (BIA) identification of but a single belief of Ontunez that motivated the Facusse Group to persecute him, i.e., his economic philosophy or goal, is the flaw that I perceive in the denial of asylum to Ontunez. By shoehorning his reasonable fears of persecution into the single “economic” cubbyhole and failing to recognize the fallacy of attempting to ascribe that (or any) single persecution motive to the Facusse Group based on its perception of Ontunez’s belief, turns a blind eye to the realities of the situation. I am convinced that when Ontunez’s motivating beliefs are viewed from the vantage point of his once and future persecutors (which precedent instructs us to do), their motivation to terrorize him simply cannot be ascribed to a perception that his sincerely held “beliefs” were exclusively economic in nature.

Given the testimony and supplemental evidence adduced by Ontunez (whom the IJ found to be fully credible) the beliefs for which he was persecuted by a faction of the Honduran elite and for which he holds a reasonable fear of future persecution if he is forced to return to his homeland, were not exclusively about economics, but were substantially (if not primarily) about the social and political implications of the elitists’ land grab (in reaction to which he helped organize and lead a peasants’ opposition). Even if Ontunez’s persecutors also perceived that his economic stake in the struggle was an impetus of Ontunez’s opposition to their plan to dispossess these farmers and “flip” their erstwhile farm property to foreign investors, there can be no question that his genuine political beliefs were perceived by the elite as a reason for them to persecute him. From the standpoint of the elite, their singling out Ontunez for persecution was grounded in substantial part in their perception of his espoused belief in the need to eradicate political subjugation and deprivation of the peasants’ civil rights through abuse of political and police power — a quintessential political belief for which he was persecuted.

The fallacy that I see as overarching the reasoning employed by the IJ, the BIA, and' — with respect — the panel majority, lies in their confusing the persecutors’ motive for grabbing the land — economic— with their motive (or one of several motives) for persecuting Ontunez — their clear recognition of his sincerely held political beliefs. We are instructed by the Supreme Court in INS v. Elias-Zacarias 1 and bound by our precedent in Rivas-Martinez v. INS2, to analyze the “belief’ prong of the asylum test from the objectively determined viewpoint of the persecutors, i.e., the kind of antithetical belief that they ascribe to the asylum-seeker, not his or her subjective (or even disingenuously announced) belief. By first conflating the Facusse Group’s (1) own profit motive and (2) their perception of Ontunez’s political motive, then wrongly transferring the economic land acquisition motive from the persecuting elite to the persecuted refugee as the “belief’ for which the elite did (and likely will again) persecute him, the IJ, et ai, perverted the teachings of Elias-Zacarias and Rivas-Martinez. This in turn resulted in the denial of asylum for the absolutely wrong reason.

This conclusion is amply borne out by undeniable truths about Ontunez’s homeland of Honduras: The large landowners *357and the prominent urbanites, who together wield all social and economic dominion, are virtually inseparable from those who control and operate the civil government (national, regional, and local) and the military establishment. As the State Department expressed in its Honduras Country Report, “[i]mpunity for members of the economic and official elite, exacerbated by a weak, under-funded, and sometime corrupt judicial system, contributes to human rights problems.”3

In the instant case, the entanglement of the socio-economic elite and all branches of the government — civil and military; national and local; law enforcement and judicial — is quite literal. A former president of Honduras, Carlos Roberto Flores Fa-cusse, is an uncle of one of the actively involved, “name” partners of the Facusse Group, which is the conglomerate identified as the instigator of Ontunez’s persecution. Ontunez’s testimony, which, as earlier noted, was fully credited and accepted by the IJ, describes in detail the Facusse Group’s use of sham court orders, corrupt police personnel, and a public assassination to further its objectives. In light of these uncontroverted facts, I cannot join the efforts of my colleagues to sever surgically the incidental (or, at best, the inseparably intertwined) economic facet of Ontunez’s motivation from the political facet, as perceived, by the Facusse Group.

Inseparable as they are, the political aspect of his belief produced the group’s antipathy toward, and persecution of, On-tunez, at least as much if not more than did the economic aspect. His outspoken social and political beliefs clearly provided substantial impetus for the elitists’ persecution, thereby generating and justifying his well-founded fear of persecution for his political beliefs — and, ultimately, his entitlement to sanctuary here. This is why I respectfully dissent.

As the majority correctly notes, we affirm the BIA’s ruling if we find that it is substantially reasonable and based on substantial evidence.4 To have us overturn the BIA’s order, then, Ontunez must demonstrate that the evidence he presented was so compelling that no reasonable trier of fact could fail to find that the Facusse Group’s actions were in any way related to Ontunez’s political beliefs, i.e., one of a mixture of motives, even if not the principal motive or only motive, for their persecuting him. Although our standard of review of the BIA’s orders is a highly deferential one and therefore a high hurdle for Ontunez to clear, he need not show that the evidence compels the conclusion that the Facusse Group’s persecution was based exclusively — or even principally — on his political beliefs.5 He can succeed if he can show that the evidence compels the conclusion that the Fa-cusse Group’s conduct against him was in any way motivated by its antipathy toward his sincerely held political beliefs— as the Facusse Group viewed them. Based on his fully credited testimony, the documentary evidence, and comparable examples from the case law, I am satisfied that Ontunez met this burden and that we should have granted his petition.

The BIA’s order did not extensively detail its reasons for rejecting Ontunez’s argument, but its brief statement speaks volumes:

*358Regardless of the fact that the Facusse Group may have been aware of the respondent’s claimed political opinion, we find that based on the record before us, the respondent failed to establish that the Facusse Group’s alleged destruction of his home and crops and threats to kill him are in any way related to his political opinion, rather than to the Facusse Group’s desire to retaliate against him or intimidate him for his actions in convincing the members of the land cooperative of which he was a leader to not give up the cooperative’s lands to the Facusse Group wanted to complete a business deal with foreign investors, (emphasis added).

The language of the BIA’s terse opinion crystallizes two facts crucial to our inquiry: (1) The Facusse Group was well aware of Ontunez’s sincerely held political beliefs regarding landownership and peasant rights, as well as his opposition to the political corruption that facilitated the group’s land grab; and (2) the Facusse Group intentionally targeted Ontunez because of his political role of organizer, leader, influential member, and spokesman for the peasant land cooperative, not just an economically motivated farmer with a financial interest in cooperatively farming the land in question. I re-emphasize that it is not the persecutors’ motivation in grabbing the land (economic) for which we test, but their motivation in persecuting the asylum seeker (here, the elite’s perception of and antipathy toward, inter alia, Ontunez’s political beliefs).

In combination, those two facts revealed by the BIA’s statement foreclose the conclusion that the Facusse Group’s attempted assassination and repeated threats on Ontunez’s life were motivated solely and entirely by the group’s dissatisfaction with his economic interests and its perception of his economic motivation for opposing the group. If the Facusse Group were only concerned about the peasants’ economic stake in the Las Delicias agricultural land and their opposition to its being acquired by that group and flipped to foreign developers, the group would have had no reason to single out Ontunez and target him for intimidation or elimination. Armed with its (allegedly sham) court order, and assisted by the Honduran military in clearing the improvements from the subject tracts of land, the Facusse Group need not have bothered with Ontunez, his economic interests and beliefs, or for that matter, the economic interests and beliefs of the other peasant farmers in the cooperative. That cartel could have easily and systematically intimidated or eradicated every recalcitrant peasant who wanted to farm the property in question, including Ontunez.

Yet, the Facusse Group did not take that course. Instead, it targeted only the visible leaders of the cooperative, including Ontunez, thereby confirming that, at least in substantial part, it persecuted Ontunez specifically for his political motivation in leading the cooperative and his outspoken social and political beliefs with which they so strongly disagreed — not solely for his economic stake in the land and its continued use.

Another confirmatory example: In furtherance of its attempts to neutralize On-tunez’s political power and his influence with members of the cooperative, the Fa-cusse Group disingenuously agreed to a meeting with the leaders of the peasant land cooperative (including Ontunez), but sent to the meeting not only Group members, but also policemen and a hired hit-man who was to kill Ontunez during the course of his delivering a speech denouncing corruption in the Honduran government (politics, not economics). Luckily, Ontunez absconded; but when he returned *359to Las Delicias after a brief, life-saving, self-imposed exile to his brother’s house in another village, members of the Facusse Group and their private guards visited his house and again threatened him. During this encounter, members of the Facusse Group and their guards obliquely threatened Ontunez’s life, informing him that he could either leave voluntarily or the Group would remove him — specifically, that he could depart “in a good way or in a bad way.”

These actions by the Facusse Group prove not only that it singled out Ontunez for persecution, but that it did so not solely for his financial competition with them for the coop’s property, but also for his ardent and vocal leadership of a predominantly political agrarian peasant land movement to which the elite were obviously opposed, and vice versa. There can be no factual dispute that the Facusse Group saw Ontunez first and foremost as a serious political threat, not just another land user reluctant to lose his own farming opportunity. Ontunez’s sincerely held political beliefs were manifested in his efforts to organize peasant farmers and exhort them collectively to protest and oppose the government-supported “hands-off’ policy of allowing the civilian elite forcibly to remove peasant farmers from the land without benefit of legal process. It is immaterial that he likely was galvanized into action initially by an economic concern for his farming livelihood, or that he retained such a concern and continued to be motivated in part by it. Political belief as one of several that engender persecution is sufficient.

The fact that Ontunez happened to wear two hats — one as leader of the land cooperative and the other as but one among many small peasant farmers — does not automatically eradicate the substantial political nature of his leadership or relegate his advocacy, and his resulting persecution, to his personal economic stake alone. This is not a simple case of a lone farmer standing in the path of a group of businessmen because he is concerned only with the economic impact of losing his own livelihood; it is a case of a lone farmer who assumed the additional role of activist in a stereotypical socio-political class struggle, albeit — like most — with inseparably intertwined economic implications.

Ontunez’s acts of organization and vocal advocacy were political acts which evidenced his strong political beliefs. This could not possibly have been lost on the Facusse Group. By taking a high-profile leadership role in organizing the peasant farmers and speaking out on their behalf, Ontunez sought to protect something larger — and decidedly different — than his own economic stake. He championed the right of all peasant farmers not to be forcibly — • and, if necessary, violently — displaced by the elite, supported, at least indirectly, by the Honduran government.6 This is what *360evidenced his political beliefs in the eyes of the Facusse Group. That group did not perceive just his role as one of many otherwise indistinguishable economic competitors for the land as his sole motivational belief. Indeed, by becoming an outspoken activist, Ontunez not only elected to risk his own life, but at the same time made the conscious choice to forgo the truly “economic” alternative of quietly finding uncontroversial land on which to farm and subsist.

Ontunez’s situation is indistinguishable from that of the union leader who was the petitioner in Osorio v. INS.7 The Second Circuit concluded that his and his union’s “economic” struggle was also a political one, finding that, even though the petitioner’s union activities were grounded in his attempts to protect his (and others’) economic rights, “[a]ny attempt to unravel economic from political motives is untenable.” 8 In reaching its conclusion under the facts of that case, the Second Circuit relied on the United Nations Handbook on Procedures and Criteria for Determining Refugee Status, which stated:

The distinction between an economic migrant and a refugee is, however, sometimes blurred in the same way as the distinction between economic and political measures in an applicant’s country of origin is not always clear. Behind economic measures affecting a person’s livelihood there may be racial, religious, or political aims or intentions directed against a particular group.
[Wjhat appears at first sight to be primarily an economic motive for departure may in reality also involve a political element, and it may be the political opinions of the individual that expose him to serious consequences, rather than his objections to the economic measures themselves.9

Like the beliefs of the union leader in Osorio, it was, in substantial part, Ontu-nez’s socio-political beliefs regarding corruption in the Honduran government and violation of the human rights of peasant farmers vis-a-vis the civil elite that subjected him to the serious — even life threatening — persecution by that same elite. And, indisputably, it is the prospect of the elite’s retaliation in recognition of — and opposition to — his genuinely held political beliefs that forms the very reasonable basis of Ontunez’s well-founded fear of persecution, should he be forced to return to Honduras.

To illustrate this point further, I offer the following hypothetical example: Suppose that Ontunez, rather than being a peasant farmer himself, had been an economically self-sufficient, Honduran citizen who was ideologically opposed to the elite-initiated, government-supported, displacement of peasants from untitled agricultural land. To advocate his pro-democracy position, our non-farming ideologue helps found an organization of peasant farmers to oppose the tactics and goal of the Fa-cusse Group, and becomes this underclass organization’s spokesman. Suppose further that the Facusse Group threatens our economically disinterested citizen and hires hit men to assassinate him while the local police turn their backs, precisely *361what happened to Ontunez in real life, as credited by the IJ.

As the hypothetical Ontunez of my illustration has no personal economic stake in the land itself, the IJ and the BIA could not possibly reach any conclusion but that he was persecuted because of his persecutors’ perception of his political beliefs. Yet the only difference between the hypothetical Ontunez and the real-life Ontunez is the fact that the real Ontunez also happens to farm some of the land sought by the elite and thus has a personal economic stake in the outcome of the dispute.

My obvious point is that it is both incongruous and contrary to our case law for the IJ or the BIA — or this court — to conclude that, simply because an asylum seeker happens to have some personal economic stake in the object of a mixed-motive class struggle, he does not also have, or cannot also hold, strong political beliefs regarding the dispute. It is equally illogical to conclude that the presence of an economic interest adverse to that of his persecutors precludes the refugee’s political beliefs and his leadership role in the voicing of those beliefs from being reasons that he is singled out for persecution and for which he thus harbors a reasonable fear that he would again be persecuted if he were forced to return. This is a quintessential mixed motive case.

The case relied on by the government and the panel majority, Cuevas v. INS,10 is easily distinguished from this one. In Cuevas, a group of Philippine landowners became involved in a dispute with squatters on their land. The landowners claimed that the squatters were part of the military branch of the Philippine’s Communist Party and that the squatters threatened the landowners with death if they refused to relinquish the land. The Seventh Circuit determined that the land dispute there was purely an economic one between private parties and had no political import. In doing so, however, the court emphasized that the Cuevas petitioners could not identify (1) the source of threatening phone calls, (2) the person who killed their relative, or (3) the armed men who badgered them. Thus, they failed to link their persecution to the alleged persecuting group. The Cuevas court also noted that the petitioners did not attempt to avail themselves of Philippine legal procedures and that the “real reason for petitioner’s hasty departure from the Philippines is probably found ... [in] the Administrative Record: the entire family of petitioner ... lives in Chicago.”11

In contrast, Ontunez has credibly and precisely identified the perpetrators of the various threats and attacks against him. He has also demonstrated that he repeatedly attempted to enlist assistance from local Honduran government and law enforcement officials to aid his cause and remedy his persecution — but to no avail. And there is no evidence to suggest that his fleeing to the Unites States was based on selfish or ulterior motives — personal financial gain, in particular — unrelated to his position as political activist and spokesman for the agrarian reformers of the cooperative.

One final point of error: After having somehow decided that Ontunez’s persecution was solely economic, the BIA failed to address the question whether the class of “activist agrarian cooperative leaders” constitutes a “particular social group” for purposes of asylum law. Instead, the BIA concluded, without further analysis, that Ontunez had failed to establish a nexus to *362any of the grounds specified in the asylum statute. Yet, as verbalized by the BIA itself in Matter of Acosta,12 to establish persecution sufficient to garner asylum, a petitioner can show (1) his membership in a particular societal group and (2) persecution directed toward the group:

The shared characteristic might be an innate one such as sex, color, or kinship ties, or in some circumstances it might be a shared past experience such as former military leadership or land ownership. The particular kind of group characteristic that will qualify under this construction remains to be determined on a case-by-case basis. However, whatever the common characteristic that defines the group, it must be one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences.13

Even though in Osorio the Second Circuit did not extensively address the “identifiable group” issue because it decided that the petitioner had established eligibility for asylum on other grounds, the court observed that, collectively, “union leaders” did in fact constitute a particular social group that was persecuted in Guatemala. Here, depending on the extensiveness of the government-endorsed economic development schemes, “agrarian cooperative leaders” almost assuredly did — and still very well might — constitute a persecuted social or political group.

I would hold that the BIA erred as a matter of law when it failed to address the “identifiable group” issue. If nothing else, this requires a remand for further deliberation, as we required in Rivas-Martinez.

To recap, Ontunez’s sole burden here was to establish that a reasonable fact finder would be compelled to conclude that his persecution was based at least in part on his genuinely held political beliefs as seen through the eyes of his persecutors.14 Ontunez’s fully credited and uneontradict-ed testimony proves beyond cavil that it was his organization, leadership, and advocacy of the peasant land cooperative that caught the attention of a powerful civilian elitist group (with its close family, social, and political class ties to the government and its ability to enlist the aid of government and police officials) and convinced this same group that Ontunez’s demonstrated political belief — clearly contrary to their own^ — posed a threat. And it was the Facusse Group’s concerns about Ontunez’s political beliefs that prompted (or at least contributed to) that group’s decision to subject him to life-threatening consequences. That his persecutors were motivated “at least in part” by Ontunez’s political beliefs, which they viewed (correctly) as anathema to their own, is wholly inescapable. That his persecutors also perceived Ontunez to hold economic beliefs opposed to theirs is wholly immaterial.

Because I am convinced that, under these facts, separating and conflating the political, social, and economic motives of both Ontunez and his persecutors is a misdirected, impractical, unrealistic — and, ultimately, inhumane — exercise in futility, and *363that he successfully demonstrated that his persecutors’ perception of his political beliefs substantially motivated them to torture him — and would do so again if he returned — I respectfully dissent from the panel majority’s rejection of Ontunez’s petition to review and reverse the BIA’s denial of asylum.

. 502 U.S. 478, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).

. 997 F.2d 1143 (5th Cir.1993).

. Honduras Country Report on Human Rights Practices for 1998, U.S. DEP'T ST, Feb. 26, 1999.

. Mikhael v. INS, 115 F.3d 299, 302 (5th Cir.1997).

.Rivas-Martinez v. INS, 997 F.2d 1143 (5th Cir.1993) (employing the "mixed-motive” analysis).

. See State Department Report on Asylum Claims and Country Conditions in Honduras:

The most frequent claim of Honduran peasants is that their efforts to obtain land under the agrarian reform laws were thwarted by local military and police instigated by landowners. Over the years, the Government has implemented land reform programs with varying degrees of success, and the issue remains highly controversial among the landless and landowners.
As part of its economic reform initiatives, the Government encourages domestic and foreign private investment in their agricultural sector. However, Honduran peasant groups routinely have invaded private agricultural lands. The Government, however, is on record as opposing land occupations because they are a major disincentive to agricultural investment, and uses minimal force as needed to dislodge squatters. However, one such expulsion of squatters in December 1998 resulted in the death of *360one activist who had threatened police personnel with a machete.

. 18 F.3d 1017 (2d Cir.1994).

. Id. at 1029.

.The U.N. Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees at ¶¶ 63-64 (cited by Osorio, 18 F.3d at 1029).

. 43 F.3d 1167 (7th Cir.1995).

. Id. at 1171.

. Matter of Acosta, 19 I&N Dec. 211, 1985 WL 56042 (BIA 1985).

. Id. at 233 (BIA 1985) (emphasis added) (holding, however, that membership in a taxi cooperative, based on the facts of the case, did not constitute a particular social group).

. See INS v. Elias-Zacarias, 502 U.S. 478, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); Rivas-Martinez v. INS, 997 F.2d 1143 (5th Cir.1993).