holding that applicant had failed to show guerrilla threats were made because of political opinion where guerillas had not indicated any knowledge of applicant's political views and applicant had not communicated those views to guerillas
How later courts described this case
- holding that applicant had failed to show guerrilla threats were made because of political opinion where guerillas had not indicated any knowledge of applicant's political views and applicant had not communicated those views to guerillas
- noting that the possibility of internal relocation may be considered in determining well-founded fear of persecution
- finding no persecution on account of political opinion by guerilla force where no evidence supports the conclusion that harassment was based on alien’s political views
- stating that appellant’s claims were undercut by the fact that his father and brother have not been harmed and remained in El Salvador for five years
Written by the judges who cited it.
The opinion
NOONAN, Circuit Judge,
dissenting:
In adopting the position that a petitioner for asylum must show that a reasonable person in his circumstances would have well-founded fear, the Board adopted an objective standard of proof. The difference between the subjective state of mind of any particular individual and the state of mind of a hypothetical “reasonable person” is one of the most fundamental distinctions of Anglo-American law, see Prosser and Keeton, Torts, § 32 (1984); Holmes, The Common Law, 108-11 (1948); The Germanic, 196 U.S. 589, 596 , 25 S.Ct. 317, 318 , 49 L.Ed. 610 (1905).
In Cardoza-Fonseca v. INS, 767 F.2d 1448, 1452 (9th Cir.1985), aff'd, 480 U.S. 421 , 107 S.Ct. 1207 , 94 L.Ed.2d 434 (1987), this court stated: “The term ‘well-founded fear’ refers to a subjective state of mind, while ‘clear probability’ refers to an objective fact. The latter phrase requires an examination of the objective realities, while the former requires an analysis of the applicant’s mental state (notwithstanding the fact that the fear must have some objective basis if we are ultimately to find it well-founded).” The court thus carefully distinguished between “a reasonable person” test and a subjective test of fear. The court recognized that there must be some facts outside the mind of the petitioner to which the petitioner would have to point&emdash; “specific, objective facts that support an inference of past persecution or risk of future persecution.” Id. at 1453. But the necessity of such specific external facts was very far from converting the statutory focus on the petitioner’s personal subjectivity into focus on what a hypothetical reasonable person would have feared.
Affirming this court, the Supreme Court noted that the government was contending for a standard that had no subjective component. INS v. Cardoza-Fonseca, 480 U.S. 421, 430 , 107 S.Ct. 1207, 1212 , 94 L.Ed.2d 434 (1987). The Supreme Court rejected the government’s position and went on to say: “That the fear must be ‘well-founded’ does not alter the obvious focus on the individual’s subjective beliefs....” Id. at 431 , 107 S.Ct. at 1213 .
In invoking Matter of Mogharrabi, a case decided before the decision of the United States Supreme Court in Cardoza-Fonseca, and now in Cuadras in explicitly adopting “a reasonable person” standard, the Board has departed from controlling authority in this circuit and in the decisions of the United States Supreme Court. As the Board has not applied the proper standard, we are compelled to reverse it. Ar *574 teaga v. INS, 836 F.2d 1227, 1233 (9th Cir.1988).
I would REVERSE and REMAND.