Jacqueline Canales-Vargas v. Alberto R. Gonzales, Attorney General

441 F.3d 739 Jacqueline CANALES-VARGAS, Petitioner, v. Alberto R. GONZALES, * Attorney General, Respondent. No. 03-71737. United States Court of Appeals, Ninth Circuit. Submitted August 9, 2004. ** Filed March 21, 2006. COPYRIGHT MATERIAL OMITTED Rhoda Wilkinson Domingo, San Francisco, CA, for the petitioner. Victor M. Lawrence, Office of Immigration Litigation, U.S. Dept. of Justice, Civil Division, Washington, D.C., for the respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. Aal-rgz-pgh. Before HARRY PREGERSON, ALEX KOZINSKI, and MICHAEL DALY HAWKINS, Circuit Judges. PREGERSON, Circuit Judge. 1 An Immigration Judge ("IJ") denied Petitioner Jacqueline Canales-Vargas' applications for suspension of deportation, asylum, and withholding of deportation. The Board of Immigration Appeals ("BIA") affirmed without opinion. We have jurisdiction under 8 U.S.C. § 1252 . For the reasons set forth below, we grant Canales-Vargas's petition in part and remand to the BIA for further proceedings. BACKGROUND 1 2 Canales-Vargas is a native and citizen of Peru. She first entered the United States in 1986 and stayed until May 1989, when she then…

An Immigration Judge (“IJ”) denied Petitioner Jacqueline Canales-Vargas’ applications for suspension of deportation, asylum, and withholding of deportation. The Board of Immigration Appeals (“BIA”) affirmed without opinion. We have jurisdiction under 8 U.S.C. § 1252 . For the reasons set forth below, we grant Canales-Vargas’s petition in part and remand to the BIA for further proceedings.

BACKGROUND

Canales-Vargas is a native and citizen of Peru. She first entered the United States in 1986 and stayed until May 1989, when she then returned to Peru. She reentered the United States in December 1990. She claims that in April 1990, while she was in Peru, she attended a political rally where she gave a speech denouncing the terrorist group Sendero Luminoso (the “Shining Path”). After the rally, she began receiving threatening notes and phone calls of escalating severity, including some that threatened her with death if she did not leave Peru.

Specifically, beginning two or three weeks after she spoke at the political rally in April 1990, Canales-Vargas received five or six threatening notes and various threatening phone calls. The last threatening phone call came just before she…

dissenting:

We have never before held that anonymous death threats, without a scintilla of corroborating harassment, compel a finding that an asylum seeker’s fear of persecution is well founded, and I cannot join the majority in interfering, yet again, with the ability of Immigration Judges to do their jobs. Petitioner doesn’t allege she endured any harassment other than anonymous threats — not beatings, not detention, not face-to-face confrontation — to support her claim that she will be persecuted if she returns to Peru. The majority nevertheless holds not merely that a reasonable factfin-der could have determined that Canales-Vargas has a well-founded fear of future persecution, but that a reasonable factfin-der would be required to so find. See INS v. Elias-Zacarias, 502 U.S. 478 , 481 & n. 1, 112 S.Ct. 812 , 117 L.Ed.2d 38 (1992). This conclusion contravenes both Supreme Court and circuit precedent requiring deference to the administrative agency.

The majority concedes, as it must, that the handful of anonymous threats petitioner received doesn’t amount to past persecution. See maj. at 744. So our cases holding that “death threats alone can constitute persecution,” Navas v.…