Douglas Cardenas Elizabeth Napa Douglas Omar Cardenas Sharon Cardenas Cheryl Cardenas v. Immigration & Naturalization Service

294 F.3d 1062 Douglas CARDENAS; Elizabeth Napa; Douglas Omar Cardenas; Sharon Cardenas; Cheryl Cardenas, Petitioners, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. No. 01-70557. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 11, 2002. Filed June 12, 2002. Curtis Pierce, Esq., Los Angeles, CA, for the petitioners. Robert D. McCallum, Jr., Michael P. Lindemann, and Janice K. O'Grady, Esq., Washington, DC, for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals; INS. No. Afz-rsk-bov, And-acb-etr, Aeo-eaa-tyb, Aqk-umt-bed, Afs-ttp-uwg. Before REINHARDT, GRABER, Circuit Judges, and HUNT, District Judge. * Opinion by Judge REINHARDT; Dissent by Judge GRABER. OPINION REINHARDT, Circuit Judge. 1 Petitioner Douglas Cardenas ("Cardenas"), and his spouse and three children, natives and citizens of Peru, petition for review of the Board of Immigration Appeals' ("BIA") denial of their asylum and withholding of deportation applications. 1 We conclude that the BIA erred in determining that Cardenas has not established a well-founded fear of future persecution by the Shining Path, grant the petition for review, and remand…

Opinion by Judge REINHARDT; Dissent by Judge GRABER.

OPINION

Petitioner Douglas Cardenas (“Cardenas”), and his spouse and three children, natives and citizens of Peru, petition for review of the Board of Immigration Appeals’ (“BIA”) denial of their asylum and withholding of deportation applications. 1 We conclude that the BIA erred in determining that Cardenas has not established a well-founded fear of future persecution by the Shining Path, grant the petition for review, and remand for further proceedings consistent with this opinion.

*1064 1. Factual Background

Cardenas testified to the following at his asylum hearing before the Immigration Judge (“IJ”):

Cardenas, his wife, Elizabeth Napa (“Napa”), and their three children, Sharon Cardenas, Douglas Omar-Cardenas, and Cheryl Cardenas, are natives and citizens of Peru. Cardenas was employed by a merchant shipping, company, which shipped merchandise from Peru’s, port at Lima, The Cardenas family was targeted by the Shining Path, a violent revolutionary organization, because it suspected Cardenas of providing' information to the government regarding the organization, in part because his brother was a police official. Cardenas…

dissenting:

I respectfully dissent.

The BIA concluded that the lead Petitioner had failed to meet his burden to establish that it would not be reasonable for him to relocate within Peru. In my view, the record does not compel a contrary finding.

The majority relies on a single telephone message to support its conclusion that the record compels a finding that Petitioner had a well-founded fear of future persecution, despite the absence of past persecution. Several things are unclear about the evidence pertaining to that message, for example: (a) whether the relevant testimony is part of the sequence that the BIA found not credible; (b) whether this message actually came from the Shining Path or was left by someone else; (c) what “either way” referred to; (d) whether the message was a death threat or a threat to have Cardenas arrested on a false charge; and (e) when the message was left on the machine. The pertinent questions and answers at the hearing were:

(Emphasis added.) Ambiguity matters, because our standard of rewew is very deferential.

Most likely this sequence was part of the testimony that the BIA discredited, which pertained to a supposedly false charge against…