C-A-L

Interim Decision #3305

In re C-A-L-, Respondent

Decided February 21, 1997

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) An alien, who served as a soldier in the Guatemalan Army, has not established a

well-founded fear of persecution by the guerrillas on account of one of the five grounds enu-

merated in section 101(a)(42)(A) of the Immigration and Nationality Act, 8 U.S.C.

§ 1101(a)(42)(A) (1994), where he claims that his personal file from the army fell into the

hands of the guerrillas, who sought to recruit him for his artillery expertise.

(2) An alien has failed to establish that he has a well-founded fear of country-wide persecution

from the guerrillas in Guatemala where he was able to live for more than 1 year in different

areas within the country, including an area well known for its guerrilla operations, without

experiencing any problems from the guerrillas.

FOR RESPONDENT: Patricia M. Spicer, Esquire, Alexandria, Virginia

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Linda A. Dominguez,

Assistant District Counsel

BEFORE: Board En Banc: DUNNE, Vice Chairman; VACCA, HEILMAN, HOLMES,

HURWITZ, VILLAGELIU, FILPPU, COLE, MATHON, and GUENDELSBERGER, Board

Members. Dissenting Opinions: SCHMIDT, Chairman; ROSENBERG, Board Member.

HURWITZ, Board Member:

The respondent’s appeal from an Immigration Judge’s decision dated

October 13, 1995, finding him deportable as charged, denying his applica-

tions for asylum and withholding of deportation under sections 208 and

243(h), of the Immigration and Nationality Act, 8 U.S.C. §§ 1158 and

1253(h) (1994), respectively, but granting him voluntary departure, will be

dismissed.

I. FACTUAL BACKGROUND

The respondent is a 27-year-old male, native and citizen of Guatemala,

who entered the United States without inspection on December 15, 1991. The

respondent was a soldier in the Guatemalan Army from November 1, 1986,

to April 30, 1989. He was trained as an artillery specialist.

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The respondent testified that, as a soldier, he was sent on separate occa-

sions into the mountains to combat guerrilla forces. He was involved in vari-

ous confrontations in which several soldiers and guerrillas were killed. On

March 15, 1989, the respondent and his unit were leaving a conflict area in

the mountains when their convoy of trucks was ambushed by guerrillas.

Many soldiers were wounded and killed in this incident.

In addition, as a result of the ambush, certain military files fell into the

hands of the guerrillas. These files contained personal information about five

soldiers who would be discharged in the Spring of 1989, including their

names, civilian addresses, and military experience. The respondent’s file was

among this lot.

The respondent was discharged as planned and went to live with his father.

In September 1989, the respondent came across a friend who was one of the

four soldiers discharged from the army with him. This friend informed the

respondent that he had received a note from the guerrillas requesting that he

and the other four discharged soldiers present themselves to the guerrillas.

At the time, the respondent had joined a political organization and did not

want to get involved with the guerrillas. The respondent knew the guerrillas

had personal information on him. Fearing the guerrillas would harm him, he

moved to a different area on September 30, 1989.

The respondent returned for a brief visit to see his father in December

1989. At this time he had another discussion with his friend, who told the

respondent that he had received a second note from the guerrillas. His friend

stated that the guerrillas were looking for both of them and that their lives

were in danger. In January 1990, the respondent moved away to yet another

location. In December 1990, the respondent learned from his father that his

friend had been killed by the guerrillas.

Fearing that he was not safe anywhere in Guatemala, the respondent went

to Belize in January 1991. When his tourist visa had expired in April 1991, he

returned to see his father. The respondent’s father had received notes from

the guerrillas asking for the respondent’s whereabouts. Therefore, the

respondent went back to Belize within the same month.

The respondent’s father continued receiving notes through October 1991,

when the respondent returned one last time to see his father before leaving for

Mexico on his way to the United States. Prior to his asylum hearing, the

respondent had communicated with his father, who told him that the guerril-

las were still looking for him at the time.

II. THE IMMIGRATION JUDGE’S DECISION

The Immigration Judge questioned the respondent’s testimony about the

guerrillas’ motives in seeking to harm the respondent on account of his ser-

vice in the Guatemalan Army. The Immigration Judge noted that although

the respondent tried to escape from the guerrillas by leaving his home town,

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he moved to an area where he knew from his military experience that the

guerrillas were active. The Immigration Judge stated that it was unreasonable

for the respondent to move there to seek safety from the guerrillas knowing

that they operated in that region.

The Immigration Judge found that the respondent’s move to an area occu-

pied by the guerrillas and his ability to survive for a year without incident

undermined his claim that it was fear of the guerrillas that led him to move

there. If the respondent were truly trying to avoid the guerrillas, it would be

more likely that he would move to a region known to have little guerrilla

presence. The Immigration Judge held that the respondent did not demon-

strate past persecution or a reasonable possibility of future persecution and,

therefore, did not meet the definition of “refugee” as provided in section

101(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A) (1994). The respondent

appeals from this decision.

III. WELL-FOUNDED FEAR OF PERSECUTION

The respondent bases his application for asylum on a well-founded fear of

future persecution by the guerrillas in his country due to his past service in the

Guatemalan Army and his failure to join the guerrillas’ efforts. On appeal,

the respondent argues that the evidence in the record compels a finding that

the guerrillas would persecute him on account of his political opinion and

past membership in the military and not solely because they were trying to

obtain information from him or impress him into their service. The respon-

dent argues that the Immigration Judge erred by failing to find that he had a

well-founded fear of persecution if he returned to Guatemala.

The burden of proof is upon an asylum applicant to establish that a “rea-

sonable person” in his circumstances would fear persecution upon return to

his native country. Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987). In

addition, to be eligible for asylum, the applicant must establish that his

well-founded fear of persecution is “on account of” one of the five grounds

specified in the Act, here, his political opinion or his membership in a partic-

ular social group.

In the present case, the respondent claims that he fears returning to Guate-

mala because the guerrillas have targeted him as a former soldier. He distin-

guishes himself from the majority of the soldiers by indicating that his

personal file fell into the hands of the guerrillas after an ambush in the moun-

tain region of Guatemala. With this file, he argues, the guerrillas know what

experience he has had in the army and can locate him through his civilian

addresses on record.

Even accepting this as true, the respondent has failed to submit adequate

evidence from which we could reasonably surmise that the guerrillas’ inter-

est in him relates to his imputed political opinion. Instead, the record demon-

strates that the guerrillas’ interest in the respondent was not “on account of”

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any ground protected in section 101(a)(42)(A) of the Act. The respondent

himself testified that the reasons the guerrillas had for contacting him were to

obtain information about the army troops and their actions against the guer-

rilla groups, and to attempt to recruit him due to his expertise as an artillery

specialist. Without more, we are unable to discern that the guerrillas sought

the respondent for any purpose except those he described. We therefore find

that the respondent has not established facts on which a reasonable person

would fear that danger arises on account of his race, religion, nationality,

membership in a particular social group, or political opinion. INS v.

Elias-Zacarias, 502 U.S. 478 (1992); INS v. Cardoza-Fonseca, 480 U.S. 421

(1987); Matter of S-P-, 21 I&N Dec. 486 (BIA 1996). For this reason, the

respondent’s application for asylum must be denied.

VI. COUNTRY-WIDE PERSECUTION

The respondent’s asylum claim must also be denied because he has not

provided any convincing evidence to suggest that his fear of persecution

would exist throughout Guatemala. This Board has found that an alien seek-

ing to meet the definition of a refugee must do more than show a

well-founded fear of persecution in a particular place within a country. He

must show that the threat of persecution exists for him country-wide. Matter

of R-, 20 I&N Dec. 621 (BIA 1992); Matter of Acosta, 19 I&N Dec. 211 (BIA

1985), modified on other grounds, Matter of Mogharrabi, 19 I&N Dec. 439

(BIA 1987).

The Department of State country conditions report on Guatemala states

that the numbers of guerrillas have declined through the years, the guerrillas

are concentrated in remote areas with large Indian populations not easily

accessible to government control, and the threat to the general population has

decreased. Bureau of Democracy, Human Rights, and Labor, U.S. Dep’t of

State, Guatemala-Profile of Asylum Claims & Country Conditions (Aug.

1995). In addition, given the poor infrastructure of the various guerrilla

groups, most low-profile victims of localized harassment by the guerrillas

can relocate away from the area where they experienced problems, instead of

seeking asylum in a foreign country. Id.; see also Rojas v. INS, 937 F.2d 186,

190 n.1 (5th Cir. 1991); Matter of R-, supra. The respondent acknowledged at

the hearing that he was able to move to another area because a different guer-

rilla group was active in that part of Guatemala.

We do not consider the respondent to be a high-profile victim of harass-

ment by the guerrillas. Moreover, we find that his problems were confined to

his hometown. The respondent testified that he received letters from the guer-

rillas only at his father’s home. Although the guerrillas may have been look-

ing for him, he experienced no problems while he was living in other areas of

the country. In fact, he was able to live and work in another location for a year

without incident despite the well-known guerrilla operations in that area of

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the country. We therefore, find that conditions in Guatemala are not such that

the respondent would have a well-founded fear of returning to that country.

Having failed to meet the “well-founded fear of persecution” standard

required for a grant of asylum, the respondent has also failed to meet the

higher “clear probability” standard required for withholding of deportation.

See Matter of Mogharrabi, supra. Accordingly, the appeal will be dismissed.

ORDER: The appeal is dismissed.

FURTHER ORDER: Pursuant to the Immigration Judge’s order

and in accordance with this Board’s decision in Matter of Chouliaris, 16 I&N

Dec. 168 (BIA 1977), the respondent is permitted to depart from the United

States voluntarily within 30 days from the date of this order or any extensions

that may be granted by the district director, and under such conditions as the

district director deems appropriate; and in the event of failure to so depart, the

respondent shall be deported as provided in the Immigration Judge’s order.

DISSENTING OPINION: Paul W. Schmidt, Chairman

I respectfully dissent.

This case presents three issues: (1) whether the respondent has established

a well-founded fear of persecution in Guatemala; (2) whether internal reset-

tlement is a reasonable alternative; and (3) whether the recent peace accords

in Guatemala have an impact on the respondent’s asylum claim. As set forth

below, I conclude that: (1) the respondent has established a well-founded fear

of persecution on this record; (2) the current record is inconclusive on the

internal resettlement alternative; and (3) the case should be remanded to the

Immigration Judge for the parties to explore the impact on the respondent’s

claim of the recent peace accords in Guatemala.

I. WELL-FOUNDED FEAR

The respondent presented credible testimony establishing that he was part

of a group of five former Guatemalan soldiers who fought the guerrillas and

whose personnel files fell into the hands of the guerrillas shortly before the

group of five was discharged from the Guatemalan military in April 1989.

The respondent’s credible testimony also establishes that one member of the

group of five was killed by the guerrillas in 1990 and that threats against the

respondent by the guerrillas continued even after his final departure from

Guatemala in October 1991.

On this record, I conclude that a reasonable person in the respondent’s sit-

uation would believe that he has at least a 10 percent chance of being perse-

cuted because of imputed political opinion if returned to Guatemala. See INS

v. Cardoza-Fonseca, 480 U.S. 421 (1987). This conclusion is consistent with

Matter of S-P-, 21 I&N Dec. 486 (BIA 1996). In S-P-, which involved past

persecution, we found that a respondent need not conclusively show the per-

secutor’s motive. Rather, we observed that a respondent must present

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evidence, either direct or indirect, from which it is reasonable to believe that

the harm was motivated at least in part by the respondent’s actual or imputed

political opinion. That test has been met here.

The majority, in effect, concludes that the guerrillas sought the respondent

exclusively because of his ability to provide strategic information. That con-

clusion seems unlikely.

The respondent was trained as an artillery specialist. I doubt that the guer-

rillas would have persisted in pursuing the respondent for 2½ years just to

obtain outdated strategic information on artillery operations or troop deploy-

ment. The killing of the respondent’s colleague by the guerrillas in 1990 also

seems inconsistent with a desire to obtain strategic information. The more

plausible conclusion is that the guerrillas pursued the respondent and his col-

leagues to punish them for their imputed political support of the Guatemalan

Government and their active opposition to the guerrillas’ political aims.

Because a reasonable person in the respondent’s situation would fear per-

secution if returned to Guatemala, the respondent has established a well-

founded fear of persecution in accordance with Matter of Mogharrabi, 19

I&N Dec. 439 (BIA 1987).

II. INTERNAL RESETTLEMENT ALTERNATIVE

Turning to the internal resettlement alternative, I agree that it is appropri-

ate to require a refugee who has a reasonable internal resettlement alternative

in his own country to pursue that option before seeking permanent resettle-

ment in the United States. On the other hand, the internal resettlement alter-

native must be carefully applied. It should not be a routine basis for denying

protection to refugees just because they cannot produce evidence to negate

every possibility of internal relocation. The test for the internal resettlement

alternative is whether, under all the circumstances, internal resettlement is a

reasonable possibility.

Initially, a refugee who fears persecution from a nongovernmental body

should produce some evidence regarding the internal resettlement alterna-

tive. However, the burden of proof is shared. Once the respondent has made

some showing on the internal resettlement alternative, the Immigration and

Naturalization Service also should provide evidence on the viability of the

alternative. Cf. Matter of Vivas, 16 I&N Dec. 68, 71 (BIA 1977) (stating that

the burden of going forward with evidence may be placed on the party having

better control or knowledge of the evidence). In fact, much of the documen-

tary information and expert testimony available on this subject would be

more accessible to the Service than to respondents. This is particularly true

because of the existence of the Service’s Resource Information Center. The

internal resettlement alternative should be applied only if the Immigration

Judge or we find that a preponderance of the evidence establishes that inter-

nal resettlement is a reasonable possibility.

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The respondent has made some showing that internal resettlement is not a

reasonable possibility. In that respect, I note that Guatemala is a relatively

small country, a factor we deemed significant in Matter of Kasinga, 21 I&N

Dec. 357 (BIA 1996). The respondent has shown that the guerrillas possess

personal identifying details gleaned from his captured military file, and that

they possess both the means and the inclination to continue to pursue and

harm him. Additionally, the record contains the 1995 country profile from

the U.S. Department of State, which establishes that considerable gue-

rilla-instituted violence continues to plague Guatemala. Bureau of Democ-

racy, Human Rights, and Labor, U.S. Dep’t of State, Guatemala-Profile of

Asylum Claims & Country Conditions (Aug. 1995) [hereinafter Profile]. The

respondent also testified that he had to move several times to avoid the guer-

rillas before leaving Guatemala for good in 1991.

On the other hand, the Service can point to evidence in the Profile indicat-

ing that guerilla strength in Guatemala is diminishing and that guerrillas are

concentrated in more remote areas. The Profile states in conclusory terms

that low-profile victims of localized guerilla harassment may seek internal

relocation. However, it is by no means clear that an individual in the respon-

dent’s situation can be characterized as “low-profile” or that credible death

threats can be characterized as “harassment.” The Service also can point out

that the respondent lived for a year in a known guerilla-infested area without

suffering any actual harm.

It is also possible that the Immigration Judge’s negative consideration of

the internal resettlement alternative was colored by his conclusion that the

respondent did not have a well-founded fear of persecution.

I find the current record inconclusive with respect to the internal resettle-

ment alternative. Because this is a question with potential life or death signif-

icance, I would remand the case to the Immigration Judge to have this matter

redetermined under the criteria set forth above. See Matter of H-, 21 I&N

Dec. 337 (BIA 1996) (remanding to give the parties an opportunity to further

develop the record).

III. CHANGED CONDITIONS—IMPACT OF RECENT

PEACE ACCORDS

In addition, I take administrative notice that on December 29, 1996, a

peace accord was signed by the Government of Guatemala and the guerillas.

See Committees on Foreign Relations and International Relations, 105th

Cong., 1st Sess., Country Report on Human Rights Practices for 1996 (Joint

Comm. Print 1997). Because the hearing before the Immigration Judge

occurred in October 1995, the impact of the peace accords was neither con-

sidered by the Immigration Judge nor addressed by the parties. Interestingly,

neither party has brought this potentially significant new development to our

attention through supplemental filings.

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The change in country conditions potentially affects the respondent’s

well-founded fear and the reasonableness of internal resettlement. Both these

questions should be explored upon remand.

IV. CONCLUSION

I conclude that the respondent has established a well-founded fear of per-

secution on this record. I also conclude that the record is inconclusive on the

question of the internal resettlement alternative. Additionally, the recent

peace accords in Guatemala could have an impact on the respondent’s claim.

Therefore, I would remand the record to the Immigration Judge to have the

respondent’s well-founded fear and the internal resettlement alternative reex-

amined in light of the appropriate legal criteria and current country condi-

tions in Guatemala.

For the foregoing reasons, I respectfully dissent from the majority’s deci-

sion to dismiss the respondent’s appeal.

DISSENTING OPINION: Lory D. Rosenberg, Board Member

I respectfully dissent.

I dissent from the decision of the majority and concur with much of the

rationale of the well-reasoned dissent of Chairman Schmidt. However, I dif-

fer with his conclusion as to the disposition of this case. I offer, in addition,

the following points in support of a different result.

I. PERSECUTION BASED ON MILITARY STATUS

The majority concedes that the respondent, whose credibility has not been

questioned, became known to the guerrillas when his military file, complete

with personal information, came into their hands. Nevertheless, the majority

contends they cannot “surmise” or “discern” any reason why the guerrillas

would have any interest in the respondent, a former military officer, other

than, (1) their desire to obtain military information, and (2) their desire to

recruit him. Matter of C-A-L-, 21 I&N Dec. 754 (BIA 1997).1

It does not take much imagination to see that in such a situation, it is rea-

sonable to believe that the guerillas could easily harbor multiple motives

towards a former soldier. See, e.g., Osorio v. INS, 18 F.3d 1017, 1028 (2d Cir.

1994) (citing INS v. Elias-Zacarias 502 U.S. 812 (1992) (emphasizing that

the plain meaning of the phrase “on account of political opinion” does not

mean that the persecutor is motivated to harm the victim solely on account of

the victim’s political opinion)); Matter of S-P-, 21 I&N Dec. 486 (BIA 1996).

1 It is noteworthy that the “statements” of the respondent upon which the majority relies—

that the guerrillas wanted him for the military information he possessed—were not offered by

the respondent. They were his monosyllabic affirmations acquiescing to questions put to him

by the Immigration Judge suggesting that these were the motives of the guerrillas. The

respondent stated only that the guerrillas wanted him because of his experiences in the army.

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The respondent is not required to establish conclusively the guerrillas’

motives in threatening him, threatening and killing his friend (one of the sol-

diers discharged with him whose military file also was seized by the guerril-

las), and seeking to kill him. The proper standard to apply in judging whether

the respondent has a well-founded fear of persecution is whether, taking into

consideration subjective and objective factors, a reasonable person in like

circumstances would fear persecution on account of a belief or affiliation

protected under the statute. INS v. Cardoza-Fonseca, 480 U.S. 421 (1987);

M.A. v. INS, 899 F. 2d 304, 311 (4th Cir. 1990) (en banc); see also Matter of

Mogharrabi, 19 I&N Dec. 439 (BIA 1987).

The Office of the United Nations High Commissioner for Refugees,

Handbook on Procedures and Criteria for Determining Refugee Status

Under the 1951 Convention and the 1967 Protocol Relating to the Status of

Refugees (Geneva, 1992)(“Handbook”)2 specifically recognizes, as have we,

that often the asylum applicant himself may not be aware of the reasons for

the persecution visited upon him or feared. Id. para. 66, at 17; see also

Bolanos-Hernandez v. INS, 767 F.2d 1277, 1285 (9th Cir. 1984) (stating that

persecutors are not likely to provide their victims with evidence of their

motives and that an asylum applicant’s credible testimony can satisfy the

requirement for objective evidence); Matter of S-P-, supra.

It would be most unusual if the guerrillas did not attribute any political

opinion to the respondent, knowing him to be a former military officer. It

would be equally unlikely if the opposing force’s interest in the respondent

was devoid of any individual political objective to punish him for his affilia-

tion with the military which they found offensive, or if their interest, as pos-

ited by the majority, was only to acquire whatever strategic information

might be in the respondent’s possession or to recruit him. It is highly improb-

able, given both the history of conflict in Guatemala and the nature of the spe-

cific death threats made and carried out, that the guerrillas viewed this former

member of the military forces in Guatemala solely as a neutral source of

intelligence, and nothing more.

Indeed, the likelihood that the guerrillas possess a persecutory motive as

to the respondent is raised by his testimony, not mentioned by the majority,

that he was “feeling afraid” of what happened when his military file was

seized by the guerrillas. It is also consistent with his affidavit, also not

2 The Handbook provides practical guidance to government officials as they are determining

refugee status under the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102, which was

enacted to bring United States refugee law into conformance with our international obligation

of nonrefoulement under the United Nations Convention Relating to the Status of Refugees,

July 28, 1951, 189 U.N.T.S. 150, and the United Nations Protocol Relating to the Status of

Refugees, Jan. 31, 1967, [1968] 19 U.S.T. 6223, T.I.A.S. No. 6577, 606 U.N.T.S. 268

(“Protocol”). INS v. Cardoza-Fonseca, supra, at 436-37 (1987); Matter of Q-T-M-T-, 21 I&N

Dec. 639 (BIA 1996) (Rosenberg, dissenting); Matter of Rodriguez-Palma, 17 I&N Dec. 465,

468 (BIA 1980).

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mentioned by the majority, which was attached to his asylum application and

in which he states that the threats he received from the guerrillas, in the form

of notes they left and in their direct communications with his father, indicated

that they intended to kill him because of his former position in the military. It

also is consistent with objective circumstances described by the respondent

in his testimony, such as the murder of his friend, a former soldier, and indi-

cated in the Department of State country profile. Bureau of Democracy,

Human Rights, and Labor, U.S. Dep’t of State, Guatemala- Profile of Asylum

Claims & Country Conditions (Aug. 1995) [hereinafter Profile].

An individual’s fear that he will suffer harm at the hands of guerrillas

because of his status as a former military officer, when supported by “objec-

tive circumstances personally known to him,” has been held to provide a

basis for granting asylum. See Montecino v. INS, 915 F.2d 518, 520 (9th Cir.

1990); see also Chanco v. INS, 82 F.3d 298, 303 (9th Cir. 1996); Matter of

Fuentes, 19 I&N Dec. 658, 662 (BIA 1988). Moreover, there is authority that

even if the guerrillas did seek out the respondent in part because of his train-

ing and the information that he may have possessed, such a motive on the part

of a persecutor may qualify as persecution within the meaning of the Act.

See, e.g., Artiga-Turcios v. INS, 829 F.2d 720, 722-23 (9th Cir. 1987) (hold-

ing that an ominous visit from the guerrillas following the respondent’s dis-

charge from the military was more than coincidence and constitutes a

cognizable threat which warrants a grant of asylum).

The United States Court of Appeals for the Fourth Circuit, in which this

case arises, holds that an applicant for asylum must present specific facts

concerning the individual predicament he faces in order to distinguish him-

self from the dangers faced by the applicant’s fellow citizens. Figeroa v. INS,

886 F.2d 76, 80 (4th Cir. 1989) (citing Cruz-Lopez v. INS, 802 F.2d 1518,

1522 (4th Cir. 1986) (finding that because Cruz-Lopez offered no other evi-

dence “in the form of repeated threats . . . tending to indicate the threat he

received was serious or that the guerrillas will persist in their recruiting

effort,” he failed to establish an objectively well-founded fear)); see also

Cardoza-Fonseca v. INS, 767 F.2d 1448, 1453 (9th Cir. 1986), aff’d, INS v.

Cardoza-Fonseca, supra.

A note and a visit have been held sufficient to support a well-founded fear

of persecution. Aguilera-Cota v. INS, 914 F.2d 1375, 1379-80 (9th Cir.

1990) (holding an anonymous note threatening harm based on government

employment and a visit by an unidentified man constitutes “specific evi-

dence” adequate to satisfy the applicant’s burden); see also Canjura-Flores

v. INS, 784 F.2d 885, 887 (9th Cir. 1985) (reversing denial of asylum where

petitioner, active with a leftist organization, believed the National Guard was

seeking him out and received information that, after his flight, they had come

to his home looking for him); Sotelo-Aguije v. Slattery, 17 F.3d 33 (2d Cir.

1994) (holding that evidence of threats alone is sufficient to establish a

well-founded fear and the absence of physical harm or a face-to-face

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confrontation is not determinative), rev’d on other grounds, 62 F.3d 54 (2d

Cir. 1995); see also Sotelo-Aguije v. Slattery, 62 F.3d 54 (2d Cir. 1995).

The respondent here provided specific facts going beyond the general cli-

mate of violence or the fact of an ongoing civil war in Guatemala. He testified

credibly to repeated notes containing death threats, to his now-deceased

friend’s communication that the guerrillas had told him they were going to

kill the respondent, and to the guerrillas’ repeated, continuing threatening

visits to his father. Whether judged against a measure of “other Guatemalan

males,” or “other Guatemalan former military personnel,” the respondent has

distinguished himself from others in his country by providing specific objec-

tive facts which support an inference of risk of future persecution. Figeroa v.

INS, supra, at 80, (citing Cardoza-Fonseca v. INS, supra, at 1453).

I concur with Chairman Schmidt that the majority has unreasonably dis-

missed the plain and uncontroverted facts suggesting the guerrillas have a

mixed persecutory motive in pursuing the respondent.

II. “COUNTRY-WIDE” PERSECUTION

The principle flaw in the majority’s analysis leading to their conclusion

that the respondent has not met his burden of demonstrating a reasonable fear

of persecution throughout Guatemala is that the guerrillas first encountered

the respondent in an ambush in a mountainous department within Guatemala,

yet managed to pursue both the respondent and the other former soldier to a

different department. To my mind, this is uncontroverted evidence that the

guerrillas are highly mobile and raises grave doubts about the majority’s con-

clusion that the respondent’s “problems were confined to his hometown.”

Matter of C-A-L-, supra, at 757, (BIA 1997).

Guatemala is slightly smaller than Virginia, making the majority’s propo-

sition that the respondent’s fear of persecution could be considered reason-

able only in his hometown, but not in the other areas where he lived, about as

reasonable as saying that an individual’s fear of persecution in Alexandria,

Virginia, would not be reasonable in Richmond. See also Matter of Kasinga,

21 I&N Dec. 357 (BIA 1996) (finding that Togo is a relatively small country,

making a fear of country-wide persecution reasonable even when arising out

of a local conflict).

The Profile, supra, provided by the Department of State, relied upon by

the majority, is equivocal. It can be cited more readily for the proposition that

the respondent faces a likelihood of persecution than for the proposition that

he does not. For example, the Profile states that, while reduced somewhat in

their numbers, the guerrillas are still active, and that their size “has not ham-

pered the violence they employ.” Id. at 4. The objects of the guerrillas’

threats and violence are reported to include persons associated with the gov-

ernment, id. at 5, which certainly would include a former solider. Given that

the respondent’s burden is to establish a reasonable possibility of

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persecution, this information provides adequate support for his contentions

that the guerrillas ambushed his military unit in one department, pursued him

to a different department, killed a similarly situated former military compan-

ion, and continued to make death threats against him, even after his father

informed them he had fled to Belize.

A secondary problem, with due respect to my colleagues, is the reasoning

in Matter of R-, 20 I&N Dec. 621 (BIA 1992). There is no statutory, constitu-

tional, or international requirement that an asylum applicant demonstrate

“country-wide persecution.” “[T]here is also no reason . . . why the fear of

persecution should relate to the whole of the asylum-seeker’s country of ori-

gin . . . .” Guy Goodwin Gill, The Refugee In International Law 42 (1983).

While related, the requirement that a refugee must be unwilling or unable to

return to one’s country to qualify as a refugee in need of international protec-

tion, and the consideration of whether it would be unreasonable to expect a

refugee to relocate internally, are not as entwined, as the majority might

prefer.

Matter of R-, supra, cited by the majority, has been widely criticized. See

Ignatius, Asylum: Country-Wide Persecution, 21 Nat’l Immigr. Project of the

Nat’l Law. Guild, Inc., Immigr. Newsletter, No. 1 (1993). It also has been

soundly rejected by the United States Court of Appeals for the Ninth Circuit,

and all but abandoned elsewhere for practical purposes. See Singh v. Ilchert,

63 F.3d 1501 (9th Cir. 1995); Damaize-Job v. INS, 787 F.2d 1332, 1336 (9th

Cir. 1986); see also Abdel-Masieh v. United States INS, 73 F.3d 579 (5th Cir.

1996); Matter of S-P-, supra; cf. Matter of Fuentes, supra; Matter of Acosta,

19 I&N Dec. 211 (BIA 1985), modified on other grounds, Matter of

Mogharrabi, supra.

To my mind, the decision overstates the point. The Handbook makes clear

that country-wide danger is not an absolute requirement, stating that “[t]he

fear of being persecuted need not always extend to the whole territory of the

refugee’s country of nationality.” Handbook, supra, para. 91, at 21-22. For

example, in the case of government-sponsored, persecution suffered in the

past, the courts have imposed a presumption of nationwide persecution,

requiring the Immigration and Naturalization Service to show that the

“persecutive actions are truly limited to a clearly delineated and limited

locality and situation.” Abdel-Masieh v. United States INS, supra; see also

Singh v. Ilchert, supra. In addition, even where evidence of country-wide

persecution is absent and the local character of the persecution is not dis-

puted, the Ninth Circuit has not required actual acts of persecution nation-

wide, but has looked to the persecutors’ intent to persecute in a broad

geographic area. Damaize-Job v. INS, supra, at 1336; see also Ignatius,

supra.

When the persecutor is a nongovernmental force, an asylum applicant

may be charged with demonstrating that he or she cannot reasonably be

expected to relocate within the country of persecution. Handbook, supra,

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para. 91, at 21-22. The internal relocation principle has been interpreted as

being a restriction applicable to persons who “can genuinely access domestic

protection and for whom the reality of protection is meaningful.” J.

Hathaway, The Law of Refugee Status 134 (1991). Determinations of “rea-

sonableness” include consideration of likely financial or logistical barriers to

internal relocation, as well as the circumstances which fail to satisfy civil,

political, and socio-economic human rights norms, or to place the refugee in

illusory or unpredictable situations. Id.

While the Fourth Circuit has not yet expressly addressed the question of

“country-wide” persecution, there is no reason to presume that the standard

for determining whether an asylum applicant can reasonably relocate to a

zone of safety in the country of persecution is other than that contemplated by

the Handbook, supra, para. 91, at 21-22, as “for various reasons it may be

unreasonable to expect the asylum-seeker to move internally.” Guy Goodwin

Gill, supra. In this case, it does not appear that there is a zone of safety within

Guatemala to which the respondent reasonably could be expected to relocate.

This is not a problem of local origin, nor is it confined to a local area,

despite the effort of the majority to make it seem so. The respondent indi-

cated that the guerrillas were looking for him “wherever [he] was.” He testi-

fied, despite the Immigration Judge’s misleading and possibly intimidating

remark questioning how the respondent could dare to contradict the Depart-

ment of State Profile,3 that there were guerrillas in Guatemala City. There is

nothing in the record to indicate that the guerrillas are not mobile or that their

operations are limited to only a discrete area of the country, or that they do

not have the intent to pursue the respondent nationwide. Indeed, as the record

reflects, they encountered the respondent and his fellow soldiers in one prov-

ince, and they threatened the respondent, and accosted and apparently killed

his friend and former soldier, in another province.

This respondent attempted, out of fear, to move on three different occa-

sions during the course of an 18-month period, and finally, when he learned

his compatriot had been killed, out of the country temporarily on a tourist

visa to Belize. He returned to learn that the guerrillas had approached his

father while he was in Belize, again seeking his whereabouts. Matter of

C-A-L-, supra. The object of attempted relocation is not that the respondent

must run from place to place, or suffer harm when harm is threatened, before

we accept that he or she is a refugee.

Where a persecutor shows no clear intent to limit his persecution to any

one geographical area of a country and the potential victim can readily be

identified by his persecutors, a conclusion that the risk of persecution does

not exist country-wide is unfounded. See Damaize-Job v. INS, supra. Here,

3 In fact, the Profile doesn’t state that there are no guerrillas in Guatemala City or in other

departments in Guatemala; it states only that the guerrillas are most prominent in the rural

highlands.

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the record reflects that the guerrillas operated readily between two or more

departments in a relatively small country; there is no evidence suggesting

they could not operate in any department of the country, even if other guer-

rilla factions were more prominent there. There is no evidence to suggest that

they have limited their persecution to a specific area.

In a case such as this one, where we have strong indications that these

guerrillas were mobile and determined to pursue the respondent, we should

recognize the essential role played by the “benefit of the doubt.” See Hand-

book, supra, para. 196, at 47 (stating that while the burden may lie with the

applicant, in cases containing some statements not susceptible of proof, a

credible applicant should be given the benefit of the doubt); see also id. paras.

203, 204, at 48. The respondent has established a reasonable likelihood the

persecution he fears is nationwide in scope.

III. SATISFACTION OF BURDEN AND EXERCISE OF

DISCRETION

The majority stands logic on its head by requiring the respondent to dis-

prove what amounts to a questionable presumption that he would not be per-

secuted throughout Guatemala. Matter of C-A-L-, supra; Matter of R- supra,

at 627. Generalizations derived from the Profile, such as that the guerrilla

forces operate principally in remote areas, or that “low-profile” victims can

relocate, provide little comfort to the victim of those guerrilla units, fewer

though they may be, which are not operating only in remote areas or targeting

only “high-profile” opponents. The respondent’s fear must only be reason-

able, interpreted by the Supreme Court to mean a 1 in 10 chance of suffering

persecution, not a 90 or 50 percent chance of suffering persecution. INS v.

Cardoza-Fonseca, supra; M.A. v. INS, supra.

The majority’s contention that the respondent was able to live in an area

occupied by guerrillas undisturbed for a year must be taken in context with

contemporaneous events. During that same year or shortly thereafter, the

guerrillas appear to have murdered his friend, a former soldier, and continued

to threaten the respondent. Persecution need not be a certainty; it is the risk of

persecution that our laws protect.

Furthermore, I know of no standard which requires an asylum seeker to

demonstrate that he is a “high-profile victim of harassment” by the guerrillas

to establish a well-founded fear of persecution. Matter of C-A-L-, supra, at

757. Nor am I aware that we, or the federal courts, have ever held that

because an individual has not “experienced any problems” (i.e. been perse-

cuted or killed) in the course of flight—even during a 1-year period—consti-

tutes conclusive evidence that an individual does not have a well-founded

fear of persecution. See Ramirez-Rivas v. INS, 899 F.2d 864, 871 (9th Cir.

1990) (rejecting a reading of the Immigration and Nationality Act which

requires the persecutor to be in “hot pursuit” when he flees the country).

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As discussed above, and in Chairman Schmidt’s opinion, there is ample

reason to find that the guerillas pursued the respondent out of a political

motive. There is little basis to attribute an exclusively nonpolitical motive to

the guerrillas’ interest in harming or ability to harm the respondent on

account of his status as a former military officer. Matter of S-P-, supra. I

would conclude that on this record, the respondent has satisfied his burden

and, barring any adverse discretionary factors which have not been presented

here, he should be granted asylum.

I recognize that we are determining a likelihood of harm in the future in

Guatemala, and that during the pendency of this appeal there have been peace

accords signed. However, we are not required to take administrative notice of

such events. Ademi v. INS, 31 F. 3d 517, 520 (7th Cir. 1994). We have no

information as to how these accords have been or will be effectuated. Fur-

thermore, an official change in government or formal cessation of hostilities

between political opponents says little about the continuing danger to an indi-

vidual asylum applicant. As Chairman Schmidt has noted, no party has come

forth with any additional evidence for us to consider, either on its merits or

for purposes of remand while this appeal has been pending.

Remand is not the result required when the respondent has met his burden,

as I find him to have done. I believe it is appropriate to look to the record as it

exists at the time of our adjudication to render our decision and issue our

opinion. Figeroa v. INS, supra, at 77 n.1. Nothing on the record before us

now calls for a different conclusion than granting the asylum application.

Consequently, I would sustain the appeal.

768