In the Matter of Fritz Desir v. David N. Ilchert, Dist. Dir., Immigr. & Naturalization Serv., 840 F.2d 723 (9th Cir. 1988). · Go Syfert
In the Matter of Fritz Desir v. David N. Ilchert, Dist. Dir., Immigr. & Naturalization Serv., 840 F.2d 723 (9th Cir. 1988). Cases Citing This Book View Copy Cite
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cited 4× by 2 distinct cases, last quoted 2001 · …to challenge the extortion is to challenge the underpinnings of the political system. at p. 727 ≈ altered
537 citation events (148 in the last 25 years) across 17 distinct courts.
Strongest positive: Singh v. Garland (ca9, 2024-03-22) · Strongest negative: Salazar-De Leon v. Ashcroft (ca9, 2003-06-24)
Treatment trajectory · 1988 → 2026 · click a year to view as-of
1988 2007 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited "but see" Salazar-De Leon v. Ashcroft
9th Cir. · 2003 · signal: but see · confidence high
Id. at 960-61; but see Desir v. Ilchert, 840 F.2d 723, 729 (9th Cir.1988) (concluding that beatings, arrests and harassment of a Haitian applicant for asylum constituted past persecution, which, “without more, satisfies the requirement of § 101(a)(42)(A), even independent of establishing a well-founded fear of future persecution”).
examined Cited as authority (verbatim quote) Singh v. Garland
9th Cir. · 2024 · signal: see · quote attribution · 1 verbatim quote · confidence high
where evidence of a specific threat on an life is presented in conjunction with general corroboration which describes political and social turmoil, the has succeeded in establishing prima facie eligibility for asylum.
examined Cited as authority (verbatim quote) Esther Josephine Bunuan Agbuya v. Immigration and Naturalization Service (4×) also: Cited "see"
9th Cir. · 2001 · signal: see · quote attribution · 2 verbatim quotes · confidence high
to challenge the extortion is to challenge the underpinnings of the political system.
examined Cited as authority (verbatim quote) Esther Josephine Bunuan Agbuya v. Immigration and Naturalization Service (4×) also: Cited "see"
9th Cir. · 2000 · signal: see · quote attribution · 2 verbatim quotes · confidence high
to challenge the extortion is to challenge the underpinnings of the political system.
examined Cited as authority (verbatim quote) 95 Cal. Daily Op. Serv. 6601, 95 Daily Journal D.A.R. 11,313 Harpinder Singh, Petitioner-Appellant-Cross-Appellee v. David Ilchert, District Director, Ins, Respondent-Appellee-Cross-Appellant (3×) also: Cited as authority (rule)
9th Cir. · 1995 · signal: see · quote attribution · 1 verbatim quote · confidence high
hether the political opinion is actually held or implied makes little difference where the alien's life is equally at risk.
examined Cited as authority (verbatim quote) Singh v. Ilchert (3×) also: Cited as authority (rule)
9th Cir. · 1995 · signal: see · quote attribution · 1 verbatim quote · confidence high
hether the political opinion is actually held or implied makes little difference where the alien's life is equally at risk.
discussed Cited as authority (verbatim quote) Gebremichael v. INS
1st Cir. · 1994 · signal: see · quote attribution · 1 verbatim quote · confidence high
ast persecution, without more, satisfies the even independent of establishing a well-founded fear of future persecution.
discussed Cited as authority (rule) Rabinder Balami v. Attorney General United States
3rd Cir. · 2017 · confidence medium
Where an applicant proceeds based on an imputed political opinion, the court may grant asylum “where the motives and perspective of the persecutor 8 demonstrate that the persecution was on account of a belief attributed to the alien, even where the alien did not overtly subscribe to that belief.” Chavarria, 446 F.3d at 516 (citing Desir v. Ilchert, 840 F.2d 723, 728 (9th Cir. 1988)).
discussed Cited as authority (rule) Vladimir Oliva v. Loretta Lynch
4th Cir. · 2015 · confidence medium
See, e.g., Aliyev v. Mukasey, 549 F.3d 111, 117-18 (2d Cir.2008) (holding that the BIA erred in finding that the petitioner’s extortion was not on account of his ethnicity when the persecutors made comments about the petitioner’s ethnic background); Desir v. Ilchert, 840 F.2d 723, 727-28 (9th Cir.1988) (finding that extortion, backed up with physical violence, was on account of both the petitioner’s political beliefs and the personal greed of the persecutor); cf. Quinteros-Mendoza, 556 F.3d at 164-65 (finding no evidence that gang extortion was on account of a protected ground).
discussed Cited as authority (rule) Elisned Corro-Barragan v. Eric H. Holder Jr.
9th Cir. · 2013 · confidence medium
See, e.g., Fleuti, 374 U.S. at 450-51 , 83 S.Ct. 1804 ; Desir v. Ilchert, 840 F.2d 723, 728 (9th Cir.1988). 7 . 8 U.S.C. § 1229b(d) provides in relevant part: (d) Special rules relating to continuous residence or physical presence.... (2) Treatment of certain breaks in presence.
discussed Cited as authority (rule) Antonio Lee v. Eric Holder, Jr. (2×)
9th Cir. · 2011 · confidence medium
See Sagaydaµ v. Gonzales, 405 F.3d 1035, 1044 (9th Cir. 2005) (refusing bribes constituted political opinion because alien's actions were tied to government political and economic reforms); Desir v. Ilchert, 840 F.2d 723, 727 (9th Cir. 1988) (resisting bribes constituted political opinion because government was a µleptocracy from the highest to lowest level).
examined Cited as authority (rule) Koba Khakhnelidze v. Eric Holder, Jr. (4×) also: Cited "see"
6th Cir. · 2011 · confidence medium
Refusal to accede to government corruption can constitute a political opinion for purposes of refugee status.” Grava v. INS, 205 F.3d 1177 (9th Cir. 2000) (citing Reyes- -24- No. 09-4514 Khakhnelidze, et al. v. Holder Guerrero v. INS, 192 F.3d 1241, 1245 (9th Cir. 1999), and Desir v. Ilchert, 840 F.2d 723, 729 (9th Cir. 1988)); see also Marku v. Ashcroft, 380 F.3d 982, 986 (6th Cir. 2004) (recognizing that opposition to government corruption can constitute a political opinion).
discussed Cited as authority (rule) N-M
BIA · 2011 · confidence medium
See Castro v. Holder, 597 F.3d 93, 104 (2d Cir. 2010) (stating that evidence of pervasive corruption, including direct ties between corrupt elements and the president of Guatemala, made it likely that the alien’s whistleblowing actions would be perceived to reflect political opposition to the governing regime); Desir v. Ilchert, 840 F.2d 723, 724-25, 727 (9th Cir. 1988) (stating that evidence that the Macoutes political system was a “kleptocracy” founded on extortion made it likely that refusal to accede to extortion would be seen as politically subversive, particularly where the alien p…
discussed Cited as authority (rule) Regalado De Perlera v. Holder
9th Cir. · 2011 · confidence medium
We need not determine whether the BIA erred by applying In re Maldonado- Cruz, 19 I. & N. Dec. 509 (B.I.A. 1988), despite our own decisions in Sangha v. INS, 103 F.3d 1482, 1488 (9th Cir. 1997); Maldonado-Cruz v. INS, 883 F.2d 788, 791 (9th Cir. 1989), abrogated on other grounds by INS v. Elias-Zacarias, 502 U.S. 2 478, 483 (1992); Desir v. Ilchert, 840 F.2d 723, 728 (9th Cir. 1988); and Bolanos-Hernandez v. INS, 767 F.2d 1277, 1286 (9th Cir. 1985), because the BIA properly denied Petitioner’s asylum claim on an alternative ground.
discussed Cited as authority (rule) Baghdasaryan v. Holder (2×)
9th Cir. · 2010 · confidence medium
See, e.g., Zhu, 537 F.3d at 1044-45 (finding political opinion where a Chinese factory worker wrote a letter of complaint to the town government after her supervisor, who was also a government official, raped her); Fedunyak, 477 F.3d at 1129 (finding political opinion where Ukrainian business owner filed complaints opposing government extortion scheme); Hasan v. Ashcroft, 380 F.3d 1114, 1120 (9th Cir. 2004) (finding political opinion where a journalist wrote a newspaper article criticizing a cor- rupt government official); Desir v. Ilchert, 840 F.2d 723, 724, 728-29 (9th Cir. 1988) (finding po…
discussed Cited as authority (rule) Baghdasaryan v. Holder (2×)
9th Cir. · 2010 · confidence medium
See, e.g., Zhu, 537 F.3d at 1044-45 (finding political opinion where a Chinese factory worker wrote a letter of complaint to the town government after her supervisor, who was also a government official, raped her); Fedunyak, 477 F.3d at 1129 (finding political opinion where Ukrainian business owner filed complaints opposing government extortion scheme); Hasan v. Ashcroft, 380 F.3d 1114, 1120 (9th Cir.2004) (finding political opinion where a journalist wrote a newspaper article criticizing a corrupt government official); Desir v. Ilchert, 840 F.2d 723, 724, 728-29 (9th Cir.1988) (finding politi…
discussed Cited as authority (rule) Khan v. Mukasey
1st Cir. · 2008 · signal: cf. · confidence medium
See, e.g., id. at 132 (seven arrests over a two-year period, accompanied by brief detentions and beatings which did not require medical treatment, did not rise to the level of persecution); Bocova, 412 F.3d at 263 (finding no persecution where petitioner was arrested, threatened with death twice over an eight-year period, and was so severely beaten that he lost consciousness and was hospitalized); Ravindran v. INS, 976 F.2d 754, 756-60 (1st Cir.1992) (persecution not found where ethnic minority member had been interrogated and beaten for three days in prison after participating in a political …
cited Cited as authority (rule) Siqueira v. Mukasey
9th Cir. · 2008 · signal: cf. · confidence medium
Cf. Desir v. Ilchert, 840 F.2d 723, 727 (9th Cir.1988) (concluding that petitioner had established a nexus based on his refusal to accede to governmental corruption).
discussed Cited as authority (rule) Bu v. Gonzales
6th Cir. · 2007 · confidence medium
In his appellate brief, Bu contends that he “saw his struggle against his employers as a form of protest against the result of government action.” He also questions “whether having other prisoners beat Petitioner until he passed out is a legitimate method of enforcing ‘laws of general application’” and describes his abuse as an effort to “suppress unwanted political dissent.” No. 05-4663 Bu v. Gonzales Page 7 opinion”); Marquez v. INS, 105 F.3d 374, 381 (7th Cir. 1997) (“political agitation against state corruption” can provide a basis for grant of asylum); Desir v. Ilche…
discussed Cited as authority (rule) Yidong Bu v. Alberto Gonzales, Attorney General
6th Cir. · 2007 · confidence medium
See, e.g., Grava v. INS, 205 F.3d 1177, 1181 (9th Cir.2000) (“whistleblowing against one’s supervisors at work is not, as a matter of law, always an exercise of political opinion[,] ... [but] where the whistle blows against corrupt government officials, it may constitute political activity sufficient to form the basis of persecution on account political opinion” (citations omitted)); see also Reyes-Guerrero v. INS, 192 F.3d 1241, 1246 (9th Cir.1999) (Colombian attorney who prosecuted corruption by members of the opposition party established “a causal connection between the persecution …
cited Cited as authority (rule) Velarde v. Gonzales
9th Cir. · 2007 · confidence medium
Persecution is “the infliction of suffering or harm upon those who differ in a way regarded as offensive.” Desir v. Ilchert, 840 F.2d 723, 727 (9th Cir.1988).
cited Cited as authority (rule) Singh v. Gonzales
9th Cir. · 2006 · confidence medium
See Agbuya v. INS, 241 F.3d 1224, 1230 (9th Cir.2001); Desir v. Ilchert, 840 F.2d 723, 727 (9th Cir.1988).
cited Cited as authority (rule) Ming Qin Fang v. Gonzales
9th Cir. · 2006 · confidence medium
Reviewing for substantial evidence, Desir v. Ilchert, 840 F.2d 723, 726 (9th Cir.1988), we deny the petition for review.
discussed Cited as authority (rule) Morales-Lopez v. Gonzales
9th Cir. · 2006 · confidence medium
See id. at 992 (“Petitioner’s ‘presumed affiliation’ with the Guatemalan government — an entity the guerrillas oppose — is the functional equivalent of a conclusion that [he] holds a political opinion opposite to that of the guerrillas, whether or not [he] actually holds such an opinion”); Desir v. Ilchert, 840 F.2d 723, 729 (9th Cir.1988) (finding persecution on account of imputed political opinion where petitioner refused to affiliate himself with a particular political faction or to accede to its extortionate demands, and was then perceived by the group as opposing it because …
discussed Cited as authority (rule) Yueqing Zhang v. Alberto Gonzales, United States Attorney General
2d Cir. · 2005 · confidence medium
See Marku v. Ashcroft, 380 F.3d 982, 986 (6th Cir.2004) (noting that persecution based on “ideologically motivated” opposition to government corruption may constitute grounds for asylum); Hasan v. Ashcroft, 380 F.3d 1114, 1120 (9th Cir.2004) (holding that a journalist raised “indisputably political issues” when she accused a local political leader of “organizing a cadre of ‘terrorism, repression, and extortion,’ of ‘misappropriation of public money,’ ... and of making his political office ‘an office of corruption.’ ”); Marquez v. INS, 105 F.3d 374, 381 (7th Cir.1997) (n…
cited Cited as authority (rule) German Ochoa Claudia Diaz v. Alberto R. Gonzales, Attorney General
9th Cir. · 2005 · confidence medium
For example, in Desir v. Ilchert, 840 F.2d 723, 725 (9th Cir.1988) the petitioner was arrested, threatened, and assaulted for refusing to pay bribes in return for fishing privileges.
discussed Cited as authority (rule) Iffat v. Gonzales
9th Cir. · 2005 · confidence medium
The death threats, arson, and attempted kidnaping of Iffat’s daughter satisfy our definition of persecution as “the infliction of suffering or harm ... in a way regarded as offensive.” See Desir v. Ilchert, 840 F.2d 723, 727 (9th Cir.1988) (internal quotation marks and citation omitted).
cited Cited as authority (rule) Grigoryan v. Gonzales
9th Cir. · 2005 · confidence medium
Desir v. Ilchert, 840 F.2d 723, 725, 727-28 (9th Cir.1988) (as amended).
cited Cited as authority (rule) Karouni v. Gonzales
9th Cir. · 2005 · confidence medium
KAROUNI v. GONZALES 2851 Cir. 1995) (quoting Desir v. Ilchert, 840 F.2d 723, 726-27 (9th Cir. 1988)).
discussed Cited as authority (rule) Nasser Mustapha Karouni v. Alberto Gonzales, Attorney General
9th Cir. · 2005 · confidence medium
Persecution is “ ‘the infliction of suffering or harm upon those who differ (in race, religion, or political opinion) in a way regarded as offensive.’ ” Prasad v. INS, 47 F.3d 336, 339 (9th Cir.1995) (quoting Desir v. Ilchert, 840 F.2d 723, 726-27 (9th Cir.1988)).
discussed Cited as authority (rule) Fouad Youssef Hakim Mansour v. John Ashcroft, Attorney General, Soheir Gamil Shaker Ewada v. John Ashcroft, Attorney General (2×)
9th Cir. · 2004 · confidence medium
Persecution is "`the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive.'" Prasad v. INS, 47 F.3d 336, 339 (9th Cir.1995) (quoting Desir v. Ilchert, 840 F.2d 723, 726-27 (9th Cir.1988)). "[P]ersecution is an extreme concept that does not include every sort of treatment our society regards as offensive." Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir.1995).
cited Cited as authority (rule) Fahim Kaiser Faiza Fahim Sheryar Kaiser Anushay Fahim v. John Ashcroft, Attorney General
9th Cir. · 2004 · confidence medium
Desir v. Ilchert, 840 F.2d 723, 729 (9th Cir.1988).
cited Cited as authority (rule) Tapia-Paniagua v. Ashcroft
9th Cir. · 2004 · confidence medium
Wade v. Terhune, 202 F.3d 1190, 1194 (9th Cir.2000); Desir v. Ilchert, 840 F.2d 723, 726 (9th Cir.1988).
cited Cited as authority (rule) Guillen-Meza v. Ashcroft
9th Cir. · 2004 · confidence medium
See Agbuya v. INS, 241 F.3d 1224, 1230 (9th Cir.2001); Desir v. Ilchert, 840 F.2d 723, 727 (9th Cir.1988).
discussed Cited as authority (rule) Mamadou Ndom v. John Ashcroft, Attorney General
9th Cir. · 2004 · confidence medium
Combined with the police commissioner’s death threats, these circumstances satisfy our definition of persecution as requiring “the infliction of suffering or harm ... in a way regarded as offensive.” See Desir v. Ilchert, 840 F.2d 723, 727 (9th Cir.1988) (quotation marks and citation omitted), B.
discussed Cited as authority (rule) Liri Norek Marku v. John Ashcroft, Attorney General Immigration and Naturalization Service (2×) also: Cited "see"
6th Cir. · 2004 · confidence medium
Cir.2001); Gonahasa v. INS, 181 F.3d 538, 543 (4th Cir.1999); Reyes-Guerrero v. INS, 192 F.3d 1241, 1245 (9th Cir.1999); Marquez v. INS, 105 F.3d 374, 381 (7th Cir.1997); Gonzales-Neyra v. INS, 133 F.3d 726 (9th Cir.1997); In re Desir, 840 F.2d 723, 727 (9th Cir.1988).
discussed Cited as authority (rule) Afroza Hasan Khandker Nazmul Hasan v. John Ashcroft, Attorney General
9th Cir. · 2004 · confidence medium
See, e.g., Reyes-Guerrero v. INS, 192 F.3d 1241, 1245 (9th Cir.1999) (holding that an investigation into white collar crimes committed by politicians in Colombia, where the criminal justice and political systems are closely intertwined, is, “by its very nature, political”); Desir v. Ilchert, 840 F.2d 723, 727-28 (9th Cir.1988) (noting the substantial evidence in the record that the Haitian government operated as a “ ‘klep-tocracy,’ or government by thievery, from the highest to the lowest level,” and concluding that persecution due to “Desir’s refusal to accede to extortion in …
discussed Cited as authority (rule) Thuri v. Ashcroft
5th Cir. · 2004 · confidence medium
See Grava v. INS, 205 F.3d 1177 , 1181 & n.3 (9th Cir. 2000) (recognizing that “[p]urely personal retribution is, of course, not persecution on account of political opinion,” but holding that “[w]hen the alleged [government] corruption is inextricably intertwined with governmental operation, the exposure and 7 prosecution of such an abuse of public trust is necessarily political”); Desir v. Ilchert, 840 F.2d 723, 727-29 (9th Cir. 1988) (concluding that refusal to comply with the extortionate demands of members of a government security force constitutes the expression of a political opi…
discussed Cited as authority (rule) R-A
unknown court · 2004 · confidence medium
Desir v. Ilchert, 840 F.2d 723, 728 (9th Cir. 1988) (recognizing that the “essentially political nature of the respon- dent’s predicament” was evident from the fact it was a “relationship of the weak to the powerful”); Lazo-Majano v. INS, supra; Korablina v. INS, supra, at 1045; Kovac v. INS, 407 F.2d 102, 107 (9th Cir. 1969).
discussed Cited as authority (rule) Thuri v. Ashcroft
5th Cir. · 2004 · confidence medium
See Grava v. INS, 205 F.3d 1177 , 1181 & n. 3 (9th Cir.2000) (recognizing that “[p]urely personal retribution is, of course, not persecution on account of political opinion,” but holding that “[w]hen the alleged [government] corruption is inextricably intertwined with governmental operation, the exposure and prosecution of such an abuse of public trust is necessarily political”); Desir v. Ilchert, 840 F.2d 723, 727-29 (9th Cir.1988) (concluding that refusal to comply with the extortionate demands of members of a government security force constitutes the expression of a political opinio…
discussed Cited as authority (rule) Mooneer Riad Tawadrus v. John Ashcroft, Attorney General
9th Cir. · 2004 · confidence medium
See, e.g., Baballah, 335 F.3d at 989-90 (Severe harassment, threats, violence and discrimination made it virtually impossible for the applicant to earn a living.); Desir v. Ilchert, 840 F.2d 723, 727 (9th Cir.1988) (finding persecution where an applicant was “tangibly harmed, both physically and in his ability to earn a livelihood."); Kovac v. INS, 407 F.2d 102, 107 (9th Cir.1969) (Persecution may encompass a “deliberate imposition of substantial economic disadvantage.”).
cited Cited as authority (rule) Bhalla v. Ashcroft
9th Cir. · 2004 · confidence medium
See Agbuya v. INS, 241 F.3d 1224, 1229-30 (9th Cir.2001); Yazitchian v. INS, 207 F.3d 1164, 1168 (9th Cir.2000); Desir v. Ilchert, 840 F.2d 723, 727-28 (9th Cir. 1988).
discussed Cited as authority (rule) Michelle Thomas David George Thomas Tyneal Michelle Thomas Shaldon Waide Thomas v. John Ashcroft, Attorney General (2×)
9th Cir. · 2004 · confidence medium
Persecution is “ ‘the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive.’ ” Prasad v. I.N.S., 47 F.3d 336, 339 (9th Cir.1995) (quoting Desir v. Ilchert, 840 F.2d 723, 726-27 (9th Cir.1988)).
cited Cited as authority (rule) Hakobyan v. Ashcroft
9th Cir. · 2004 · confidence medium
Desir v. Ilchert, 840 F.2d 723, 727-29 (9th Cir.1988) (persecution based on petitioner’s refusal to affiliate himself with a particular group by paying bribe was based on imputed political opinion).
cited Cited as authority (rule) Ganut v. Ashcroft
9th Cir. · 2003 · confidence medium
Indeed, “whether the political opinion is actually held or implied makes little difference where the alien’s life is equally at risk.” Desir v. Ilchert, 840 F.2d 723, 729 (9th Cir.1988).
cited Cited as authority (rule) Bortnikov v. Immigration & Naturalization Service
9th Cir. · 2003 · confidence medium
See Florez-de Solis v. INS, 796 F.2d 330, 335 (9th Cir.1986); Desir v. Ilchert, 840 F.2d 723, 727 (9th Cir.1988).
discussed Cited as authority (rule) Shpetim Hoxha v. John Ashcroft, Attorney General
9th Cir. · 2003 · confidence medium
Persecution is “the infliction of suffering or harm upon those who differ (in race, religion, or political opinion) in a way regarded as offensive.” Desir v. IIchert, 840 F.2d 723, 727 (9th Cir.1988) (quoting Kovac v. INS, 407 F.2d 102, 107 (9th Cir.1969)).
discussed Cited as authority (rule) Carrera v. Ashcroft
3rd Cir. · 2003 · confidence medium
See Fatin v. INS, 12 F.3d 1233 ,1240 & n. 10 (3d Cir.1993) (“[PJersecution does not encompass all treatment that our society regards as unfair, unjust or even unlawful or unconstitutional.”); Desir v. Ilchert, 840 F.2d 723, 726-27 (9th Cir.1988) (taunting and teasing to not rise to the level of persecution).
discussed Cited as authority (rule) Sene v. Ashcroft
3rd Cir. · 2002 · confidence medium
See Al Najjar v. Ashcroft, 257 F.3d 1262, 1289 (11th Cir.2001) (acknowledging that proof of an imputed political opinion would have qualified as persecution "on account” of political opinion under the INA); Morales v. INS, 208 F.3d 323, 331 (1st Cir.2000) ("There is no doubt that asylum can be granted if the applicant has been persecuted or has a well-founded fear of persecution because he is erroneously thought to hold a particular political opinion.”); Lwin v. INS, 144 F.3d 505, 509 (7th Cir.1998) ("One way that an applicant can establish 'political opinion' under the INA is to show an i…
cited Cited as authority (rule) Taniguchi v. Schultz
9th Cir. · 2002 · confidence medium
Singh v. Ilchert, 63 F.3d 1501, 1506 (9th Cir.1995) (citing Desir v. Ilchert, 840 F.2d 723, 726 (9th Cir.1988)).
Retrieving the full opinion text from the archive…
In the Matter of Fritz DESIR, Petitioner-Appellant,
v.
David N. ILCHERT, District Director, Immigration & Naturalization Service, Respondent-Appellee
86-2064.
Court of Appeals for the Ninth Circuit.
May 26, 1988.
840 F.2d 723
Robert D. Baizer, Yonemura & Yasaki, Oakland, Cal., for petitioner-appellant., Susan L. Kamlet and Larry J. Gallagher, Asst. U.S. Attys., San Francisco, Cal., for respondent-appellee.
Choy, Tang, Nelson.
Cited by 323 opinions  |  Published
TANG, Circuit Judge:

We examine whether beatings, imprisonment, and assaults by government security forces for the purpose of extortion may constitute persecution on account of political opinion within the meaning of sections 101(a)(42)(A) and 243(h)(1) of the Immigration and Nationality Act (the Act). Because we answer in the affirmative, we reverse the district court’s denial of an alien’s petition for a writ of habeas corpus.

I

Fritz Desir, a citizen and native of Haiti, was detained in Miami on September 11, 1981 and placed in exclusion proceedings under section 212(a)(20) of the Act, 8 U.S.C. § 1182(a)(20) (1982). Desir had fled Haiti aboard a boat which was towed into Miami by the United States Coast Guard. Desir had supported himself in Haiti by fishing and by selling curios to tourists in Port-au-Prince. In exchange for the right to fish in certain waters, Desir was expected to pay bribes to the Haitian security forces known as the Ton Ton Macoutes. Desir introduced expert testimony and documentary evidence to the effect that the Haitian government operated as a “kleptocracy,” or government by thievery, enforced by the Ton Ton Macoutes’ terrorizing and extortion of powerless citizens. Persons who resisted the extortion were marked as political subversives and subjected to official repression.

Desir was arrested, assaulted, and threatened by the Macoutes on several occasions from 1979 to 1981 as a result of his failure to pay bribes and his competition with Macoutes-approved merchants and fishermen. The first such incident occurred in June 1979. Captain Monday, an official associated with the Macoutes, was sailing by in a small boat when he saw Desir and his partner in their fishing boat and stopped them. Captain Monday boarded their boat, told the men that they were not to be fishing in that area and then[*725] struck Desir some fifty times with a wooden stick.

In 1980, Desir testified he was arrested “for speaking out.” The petitioner stated he had been a member of a small organization, the Sans Manman, meaning “without mother.” [1] The immigration judge found the organization appeared to consist of a group of three young men, who spoke out against the Government, though only privately.

Two later incidents in 1981 involved encounters with another official, Captain Sau-val, also of the Ton Ton Macoutes. In the first instance, Desir and his partner were asleep in their fishing boat when they were awakened at gunpoint by Captain Sauval. Sauval bound the men and took them to jail. Desir testified that during the time of his arrest, a period of some two to three weeks, he was beaten with a wooden stick and warned that he would be shot if “caught” again. Desir stated the Ton Ton Macoutes beat him because he did not pay money to them.

Later that same year, Captain Sauval again threatened and assaulted Desir. De-sir was near the waterfront dock in Port-au-Prince attempting to sell to tourists small wooden tables he had made. When Captain Sauval recognized Desir, he threatened him with a gun, demanded a “contribution” and fired upon him when refused. Desir testified that Captain Sauval again took him into custody and threatened to shoot him if he was ever seen again on the beach front.

After the incidents involving Captain Sauval, Desir moved to another county where he believed that the security forces would not harass him. He lived in that area for three months without incident, although there also, he stated “you had to be associated with [the] police, the Ton Ton Makute (sic), to make a living.” Thereafter, he fled on the first available boat for the United States. Desir fears that his return to Haiti would lead to a recurrence of the earlier abuses against him by the Ton Ton Macoutes, and he has submitted documentary evidence to the effect that Haitians who are deported to Haiti often face death, imprisonment and torture.

The INS placed Desir in exclusion proceedings pursuant to section 286 of the Act, 8 U.S.C. § 1226 (1982), and charged him as being excludable under section 212(a)(20) of the Act, 8 U.S.C. § 1182(a)(20) (1982) (immigrant not in possession of valid entry document). Desir sought asylum under sections 208 and 101(a)(42)(A) (1982) of the Act, 8 U.S.C. §§ 1158, 1101(a)(42)(A) and prohibition against deportation [2] under section 243(h)(1) of the Act, 8 U.S.C. § 1253(h) (1982). The Immigration Judge (IJ) found Desir’s testimony “creditable,” although noting some inconsistency, and accepted all of his statements as true. Nevertheless, the Immigration Judge found that Desir had failed to carry his burden of proof to establish entitlement to asylum or prohibition of deportation. Thus, the IJ found Desir excludable as charged and ordered him deported.

The Board of Immigration Appeals (BIA) affirmed the decision of the Immigration Judge on the basis that the Ton Ton Mac-outes harassed Desir not because of his race, religion, nationality, membership in a particular social group, or political opinion, but instead, because they wished to extort money from him for personal reasons. The BIA reasoned that Desir had not shown that his refusal to pay the bribes was an expression of political opinion rather than the product of other motivations such as inability to pay. The BIA further noted that Desir had failed to show that the Macoutes interpreted his failure to pay bribes as politically motivated, or that he was a member of a particular social group composed of persons who refused to pay bribes to the Macoutes.

[*726] On April 18, 1986, Desir filed a petition for a writ of habeas corpus in the United States District Court for the Northern District of California. [3] The district court found substantial evidence in support of the BIA affirmance of the denial of Desir’s application and denied the petition on June 2. 1986. The district court and the BIA both took judicial notice of the fact that the regime headed by President Jean-Claude (“Baby Doc”) Duvalier ended on February 6, 1986, and that the new government had ordered the Ton Ton Macoutes disbanded. Desir timely appealed. We have jurisdiction under 28 U.S.C. § 2253.

II

The decision whether to grant or deny a petition for habeas corpus is reviewed de novo. Grooms v. Keeney, 826 F.2d 883, 885 (9th Cir.1987); Chatman v. Marquez, 754 F.2d 1531, 1533-34 (9th Cir.), cert. denied, 474 U.S. 841, 106 S.Ct. 124, 88 L.Ed.2d 101 (1985). The factual findings underlying the BIA’s denial of the applications for asylum and prohibition of deportation are reviewed under the substantial evidence standard. Turcios v. INS, 821 F.2d 1396, 1398 (9th Cir.1987); McMullen v. INS, 658 F.2d 1312, 1316 (9th Cir.1981). Where, however, the agency determinations turn on purely legal questions concerning the requirements of the applicable statutes, “[t]he questions before us are questions of law, which we review de novo.” Lazo-Majano v. INS, 813 F.2d 1432, 1434 (9th Cir.1987). See also, Florez-De Solis v. INS, 796 F.2d 330, 333 (9th Cir.1986).

III

Desir contends that the evidence amply demonstrated past persecution on account of political opinion within the meaning of the Act. [4] We agree.

A.

To establish eligibility for asylum under section 208, an alien must demonstrate that he or she has been persecuted or has a “well-founded fear of persecution” on account of one of the enumerated factors. See 8 U.S.C. §§ 1101(a)(42)(A), 1158(a). As we have indicated, the test for refugee status includes both a subjective and objective component. Bolanos-Hernandez v. INS, 767 F.2d 1277, 1283 & n. 11 (9th Cir.1984). The subjective component is satisfied if the fear is “genuine.” Hernandez-Ortiz v. INS, 777 F.2d 509, 513 (9th Cir.1985). The objective component requires a showing, “by credible, direct, and specific evidence in the record,” Diaz-Escobar v. INS, 782 F.2d 1488, 1492 (9th Cir.1986), that persecution is a “reasonable possibility,” INS v. Cardoza-Fonseca, — U.S. -, 107 S.Ct. 1207, 1217-18, 94 L.Ed.2d 434 (1987). The evidentiary facts necessary to support a finding of persecution on one of the statutory grounds may be established by the production of specific documentary evidence or by the credible and persuasive testimony of the applicant. Cardoza-Fonseca v. INS, 767 F.2d 1448, 1453 (9th Cir.1985), aff'd, — U.S. -, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987); Blanco-Comarribas v. INS, 830 F.2d 1039, 1042-43 (9th Cir.1987).

The statutory term “persecution” or “well founded fear of persecution” has been defined in this Circuit as encompassing more than just restrictions or threats to life and liberty. Cordoza-Fonseca, 767 F.2d at 1452. Most simply, we have stated[*727] that persecution involves “the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive.” Kovac v. INS, 407 F.2d 102, 107 (9th Cir.1969). Persecution is found “only when there is a difference between the persecutor’s views or status and that of the victim; it is oppression which is inflicted on groups or individuals because of a difference that the persecutor will not tolerate.” Hernandez-Ortiz, 777 F.2d at 516. Thus, in determining whether the threats and violence of the Ton Ton Macoutes constituted political persecution we may examine the motives and perspective of both the victim and persecutor, for at issue is “the relationship between the two.” Id.

B.

We first consider the objective facts advanced by the petitioner. Cardoza-Fonseca, 767 F.2d at 1453 (alien’s subjective fear relevant only after introduction of objective evidence sufficient to suggest risk of persecution). Desir credibly testified at his exclusion hearing that he had been arrested three times, severely beaten on several occasions, and directly fired upon by an officer associated with the Ton Ton Macoutes who “recognized” him. These abuses resulted because of Desir’s failure to make “contributions” to the Macoutes upon demand. In addition to this physical abuse, Desir’s ability to earn a livelihood was also severely impaired by his refusal to give money to the Macoutes because the threats on his life precluded both fishing and the selling of curios. As a direct consequence of the threats and violence perpetrated by the Macoutes, the petitioner testified that he was required to move to a different county. This personal account points to sufficient specific and objective facts to suggest that Desir’s fear has some basis “in the reality of the circumstances,” Blanco-Comarribas, 830 F.2d at 1042, insofar as he was tangibly harmed, both physically and in his ability to earn a livelihood. See Kovac, 407 F.2d at 107 (imposition of substantial economic disadvantage upon an alien for reasons of race, religion or political opinion may support application for withholding of deportation). On the subjective side, Desir also testified that he personally feared to return to Haiti because of his “previous problems” with the Macoutes.

The record also contains substantial evidence that the Haitian government under Duvalier operated as a “kleptocracy,” or government by thievery, from the highest to the lowest level. The Ton Ton Mac-outes, an elaborate network of official and semi-official security forces, factions of which were fiercely loyal to the Duvalier family, formed the heart of the system. Because the Macoutes often went unpaid except for a few of their highest ranking officers, they depended on their fellow Haitians for their livelihood, a circumstance encouraging wide-scale corruption, extortion and violence. Refusal to comply with extortionate demands resulted in the attribution of anti-government sympathies and also in swift reprisals, including beatings, imprisonment and death. At least one district court recognized this reality:

Because the Macoutes are an organization created for political purposes, they bring politics to the villages of Haiti. To challenge the extortion by which the Macoutes exist is to challenge the underpinnings of the political system. Accordingly, to resist extortion is to become an enemy of the government. Moreover, it is not unreasonable to assume that when a single individual has the unfettered power to determine who is an enemy of the government, the individual’s enemies are soon classified as the government’s enemies. [Virtually any encounter with a member of the security forces is a political encounter.

Haitian Refugee Center v. Civiletti, 503 F.Supp. 442, 498-500 (S.D.Fla.1980), aff'd as modified sub nom. Haitian Refugee Center v. Smith, 676 F.2d 1023 (5th Cir. Unit B 1982).

Desir’s refusal to accede to extortion in a political system founded on extortion resulted in his classification and treatment as a subversive. The extortion and other lawlessness inflicted by the Ton Ton Mac-outes[*728] [5] on Desir thus amounted to more than arbitrary, personal actions undertaken independent of the Duvalier regime. Instead, such actions were tactics whereby the Duvalier regime systematically exercised its authority by way of terror and intimidation. Although the results of extortion may have directly benefited the Macoutes as individuals, the intimidation and fear thereby engendered accrued to the benefit of the Duvalier regime.

Thus, the treatment endured by Desir is more properly understood as motivated by “political” rather than “personal” interests. In Lazo-Majano v. INS, 813 F.2d 1432, 1435 (9th Cir.1987), this court considered the asylum and prohibition of deportation claim of an alien who had been brutalized, beaten, and raped by a member of the Salvadoran Armed Forces. In that case as in this, the essentially political nature of the alien’s predicament is apparent given the superior status and political power of the government security forces, enforced through threats and actual violence, coupled with the reasonable belief that denunciations by such officers will carry considerable weight. In Zayas-Marini v. INS, 785 F.2d 801 (9th Cir.1986) by contrast, we denied a Paraguayan alien’s petition for review of a denial of section 208 and 243(h) relief where the alien’s differences with two officials, which in one instance arose from the refusal to participate in a smuggling scheme, stemmed from “personal hostility” between what were essentially social and political equals. As stated in Lazo-Majano, 813 F.2d at 1436, the Za-yas-Marini case essentially involved “a falling out within the Paraguayan elite.” The relationship of Desir to Captain Sauval of the Ton Ton Macoutes, like that of Olim-pia Lazo-Majano to Sergeant Zuniga of the Salvadoran Armed Forces, is a rather different matter: it is a relationship of the weak to the powerful, which in particular instances, defined by the Act and the deci-sional law of this Circuit, can result in persecution on account of political opinion or imputed political opinion. [6]

The relationship between victim and persecutor is especially significant in situations where the petitioner may not have overtly given any expression to his opinions, but-because of particular acts or circumstances, certain opinions are attributed to him. In several cases we have recognized that such decisions or acts, when sufficiently conscious and deliberate on the part of the petitioner, may support a claim of well-founded fear on account of political opinion. See, e.g., Bolanos-Hernandez, 767 F.2d 1277 (refusal of former member of right-wing party and military groups to join guerrillas in El Salvador was conscious choice to remain politically neutral and constituted political opinion); Argueta v. INS, 759 F.2d 1395 (9th Cir.1985) (death threat based on persecutors’ erroneous belief that alien was member of guerrilla organization coupled with affirmative choice to remain politically neutral sufficient to establish clear probability of persecution based on political opinion); Del Valle v. INS, 776 F.2d 1407 (9th Cir.1985) (refusal to join “death squad” and pursuit of studies and other community activities constituted choice to remain neutral and expression of[*729] political opinion under the Act); Hernandez-Ortiz, 777 F.2d 517 (alien’s actual political view, whether neutral or partisan, irrelevant; where government attributed certain political opinions to him this constituted persecution on account of political opinion); Lazo-Majano, 813 F.2d 1435 (alien persecuted because of political opinion imputed by persecutor).

Under this line of cases, the harm suffered by Fritz Desir constituted persecution on account of political opinion. Like the petitioners in Bolanos-Hernandez and Del Valle, Desir expressly refused to affiliate himself with a particular faction by declining to accede to the Macoutes extortionate demands. By this act, Desir was perceived as disloyal and subversive and the machinery of the state, enforced by the Macoutes, was violently engaged against him. Desir’s actual political view at the time, whether neutral or partisan, or his inability to pay, is not relevant to our assessment of his refugee status. See Hernandez-Ortiz, 777 F.2d at 517. We must view Desir as possessing a political opinion because his persecutors, the Ton Ton Mac-outes, both attributed subversive views to Desir and treated him as a subversive. As we have noted elsewhere, whether the political opinion is actually held or implied makes little difference where the alien’s life is equally at risk. See Lazo-Majano, 813 F.2d at 1435 (“[i]f the persecutor thinks the person guilty of a political opinion, then the person is at risk.”) In the context of Duvalier’s Haiti, the refusal to submit to the extortionate demands of the Macoutes could, and in Desir’s case did, constitute a political choice.

Where evidence of a specific threat on an alien’s life is presented in conjunction with general corroboration which describes political and social turmoil, the alien has succeeded in establishing pri-ma facie eligibility for asylum. Bolanos-Hernandez, 767 F.2d at 1284, 1288. Because Desir has presented evidence of (1) successive and specific threats on his life; (2) on the basis of imputed political opinion; (3) in the context of systemic human rights abuses linked to extortion by the Ton Ton Macoutes under Duvalier, he has established his eligibility for asylum.

Further, past persecution, without more, satisfies the requirement of § 101(a)(42)(A), even independent of establishing a well-founded fear of future persecution. If an alien establishes eligibility for relief under section 208(a), “[n]o further showing that he or she ‘would be’ persecuted is required.” See Cardoza-Fonseca, 107 S.Ct. at 1218; see also, 767 F.2d at 1453 (citing Carvajal-Munoz v. INS, 743 F.2d 562, 574 (7th Cir.1984)); Blanco-Comarribas, 830 F.2d at 1043; INS Operations Instruction § 208.4, reprinted in 4 Gordon & Rosenfield, Immigration Law and Procedure at 23-156.14(1) (Bender 1987). Accordingly, we find, based on the record in this case, that Desir has established his eligibility for a grant of asylum. The Board of Immigration Appeals erred when it concluded that the beatings, arrests and assaults for purposes of extortion presented in this case did not constitute persecution on the basis of political opinion within the meaning of the Act. [7]

IV

We now turn to the question of whether substantial evidence supported the BIA determination that Desir failed to demonstrate a clear probability of persecution as required by section 243(h)(1) of the Act, 8 U.S.C. § 1253(h)(1). [8]

Resolution of this issue requires that we determine whether past persecution of De-sir by agents of the Duvalier regime indi[*730] cates a clear probability that he “would be” persecuted upon his return to post-Duvalier Haiti. [9] Desir has referred to, but did not submit to the BIA nor to this court, materials indicating that repression continues in Haiti despite the exit of the Duvalier regime and the order that the Macoutes be disbanded. We do not doubt that this failure was due to the fact that, when Desir presented his evidence to the IJ, the events of which we now take judicial notice had not yet occurred. Given our holding that resistance to official government extortion may constitute expression of a political opinion for the purpose of section 101(a)(42), it follows that facts which Desir has not yet had an opportunity to develop may form the basis for a valid claim under section 243(h)(1). Accordingly, we vacate the determination of the district court as to this claim, and remand for a determination of whether Desir now faces a clear probability of persecution should he be returned to Haiti. [10] See, e.g., Del Valle, 776 F.2d at 1414. Upon remand, Desir will have the opportunity to demonstrate facts regarding the treatment of persons like himself in post-Duvalier Haiti.

V

We reverse the district court’s denial of Desir’s habeas petition. The case is remanded to the district court, with instructions to remand to the Attorney General for the exercise of his discretion under section 208(a) of the Act and for further proceedings on the prohibition of deportation claim under section 243(h) of the Act, not inconsistent with this opinion.

REVERSED and REMANDED.

1

. Desir was orphaned as a child. He had other siblings. He testified that his sister was beaten to death while trying to escape from Haiti in 1981. He also has two brothers, one in Haiti, one in the United States; he has no contact with either of them.

2

. We employ this term instead of the statutory term, "withholding of deportation,” for reasons explained in Bolanos-Hernandez v. INS, 767 F.2d 1277, 1282 (9th Cir.1984).

3

. 8 U.S.C. § 1105a(b) (1982) provides that the alien’s sole means for obtaining review of an order of exclusion is a petition for a writ of habeas corpus. See, e.g., Castillo-Magallon v. INS, 729 F.2d 1227 (9th Cir.1984).

4

. Section 101(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A) (1982) provides in pertinent part:

The term "refugee” means ... any person who is outside any country of such person’s nationality ... and who is unable or unwilling to return to, and is unable or unwilling to avail 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. § 1158(a) grants the Attorney General discretion to award asylum once the alien has established that he or she is a refugee as defined in section 1101(a)(42)(A).

5

. The Act encompasses acts of persecution "by the government or by a group which the government is unable to control.” McMullen v. INS, 658 F.2d 1312, 1315 & n. 2 (9th Cir.1981); accord, Bolanos-Hernandez, 767 F.2d at 1284; Zepeda-Melendez v. INS, 741 F.2d 285, 289 (9th Cir.1984).

6

. Other distinctions between the Zayas-Marini fact pattern and those of the instant case are also apparent. Apart from his problems with the two named officers, Zayas-Marini remained on excellent terms with the Paraguayan government following his departure from the country, so much so that he was offered the New York consulate’s position. See Zayas-Marini, 785 F.2d at 806. Since arriving in the United States, Desir, by contrast, has maintained close ties to Haitian groups opposed to the Duvalier government; his roommate at the time of the exclusion hearing in 1985 was a prominent opposition figure active in the Haitian refugee community. A significant source of Desir’s fear of deportation to Haiti stems from his opposition activities in the United States and his belief that he will be further punished for his associations. We do not address this claim.

Also, though not dispositive of a claim to refugee status, Zayas-Marini in no way suffered the repeated physical assaults and harm inflicted upon Desir. See Zayas-Marini, 785 F.2d at 806.

7

. Because we conclude Desir has established his eligibility for asylum on the basis of the political opinion factor of the refugee definition, 8 U.S.C. § 1101(a)(42)(A), we do not reach his contention that eligibility was also established because of his membership in a "particular social group" of small merchants and fishermen who refused to pay bribes.

8

. Section 1253(h)(1) provides in pertinent part: The Attorney General shall not deport or return any alien ... to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.

9

. As did the district court, we take judicial notice of the fact that President Duvalier fled Haiti on February 6, 1986, and that the successor government ordered that the Macoutes be disbanded.

10

. Nor is this question foreclosed by our holding that Desir established prima facie eligibility for a grant of asylum. Despite prima facie eligibility, the Attorney General still has discretion to refuse a grant of asylum. 8 U.S.C. § 1158(a). Prohibition against deportation under section 243(h)(1), however, is mandatory; once the alien has established eligibility therefore, the Attorney General has no discretion to deport the alien. See Bolanos-Hernandez, 767 F.2d 1277.