Vivian C. ARUTA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent

HUG, Chief Judge,

dissenting.

I respectfully dissent.

The focus of this appeal is on the question of whether Vivian Aruta’s fear of persecution is objectively reasonable, so as to qualify her for asylum. The BIA did not question her credibility or the genuineness of her subjective fear. On the basis of the very strong evidence presented from Aruta’s family and knowledgable persons from the Philippines and experts on the Philippines, regarding the likelihood of persecution, it cannot be said that the fear she has is objectively unreasonable.

The BIA decision to deny Aruta asylum was also made on the grounds that she failed to demonstrate a country-wide threat. This court recently found that the existence of a threat of country-wide persecution is not required for determining eligibility for asylum or withholding of deportation. Singh v. Ilchert, 69 F.3d 375, 380 (9th Cir.1995). Because the BIA decision rested in part on impermissible grounds, the only issue remaining is the reasonableness of Ms. Aruta’s fear.

I.

The facts stated by the majority reveal a good part of the reason for her fear. I add some other pertinent facts:

In addition to threats against her own family, Aruta testified to specific instances of violence against others to explain why she fears returning to the Philippines. She testified that in 1981 or 1982 a well-known Christian broadcast journalist who was critical of the MNLF fled from Mindanao to Cebu and then disappeared. Aruta believes, based on what she heard from others and what was reported in the press, that he was tracked down by the MNLF and murdered. On the basis of a newspaper report, she testified that in 1981-1982 a Christian politician from Mindanao took his family and fled to Toledo City, Cebu, where they were killed by the MNLF.

After Aruta’s return to Mindanao from Cebu, her family continued to receive threats and Mr. Aruta advised his daughters to leave the country if they could.

Aruta’s sister Imelda, who works for the Philippine Department of Social Services distributing food and supplies to military and civilian workers, has received written death threats from the NPA and MNLF against her and her family because she works for the government and gives out food and supplies to the military. In July 1987, Imelda wrote a letter to Aruta telling her that their family was not safe in the Philippines. She wrote,

We are so much worried of Papa. He is being sought by the ... MNLF because he was one of those who made the military operation in Barangay Palid.- Our father *1397 now evacuated in Misamis Occidental. We plan to evacuate too with Mama and the kids_ We might be in Misamis Occidental next month and of course we will abandon everything here. Our life is not safe this time. They are watching on the family of military men.

After receiving her sister’s letter, Aruta decided that it was not safe for her to return to the Philippines and she filed her application for asylum in 1988. In January, 1989, Brigadier General Eduardo Batalla and Colonel Romeo Abendan, two of Mr. Aruta’s friends and superior officers, were kidnapped and executed. Sometime thereafter, Aruta’s parents and two of her sisters fled, this time to Cologne, Germany, where they now live. At the time of the hearing before the IJ, Imelda was the only family member that remained in the Philippines.

II.

I disagree with the BIA’s denial of Aruta’s asylum application. On the basis of the evidence in the administrative record, I must conclude that a reasonable fact finder would be compelled to find that Aruta’s fear of persecution by both the NPA and the MNLF is reasonable and that the BIA’s finding to the contrary is not supported by reasonable, substantial, and probative evidence. See Elias-Zacarias, 502 U.S. at 480-81, 112 S.Ct. at 815. Furthermore, I believe that the BIA erred in requiring Aruta to prove that she would be subject to persecution throughout the Philippines. While the geographic scope of the threat may in certain circumstances be relevant to a finding of whether petitioner’s fear is well founded, it is not itself a legal prerequisite to a grant of asylum. See Cuadras v. INS, 910 F.2d 567 , 571 n. 2 (9th Cir.1990). Even so, the record in this case does compel a finding that Aruta’s fear that the MNLF and the NPA could seek her out anywhere in the Philippines is reasonable.

A Reasonable Fear

In spite of the expert testimony and declarations, and in spite of Aruta’s own credible testimony, the Board found insufficient evidence that either the MNLF or the NPA actually target either former officials or family of present or former officials. The Board accepted only that the MNLF and NPA target active duty officials. The Board discounted all the evidence to the contrary in the record because it found no “documented instances where this occurred.”

In fact, there is substantial evidence in the record that the MNLF and NPA target family members of officials and retired officials, and no contrary evidence to support the BIA’s conclusion that the MNLF and NPA target only active duty officials. For example, Dr. Cesar Adib Majul, a leading scholar of Muslim culture in the Philippines, 1 declared in reference to the NPA and MNLF,

Threats against Mr. Paulo Aruta, the father of Miss Aruta probably stem from his role and actions against insurgents and secessionists while he was in active duty. Revenge or retaliation against him can normally be extended to his innocent family members or near relatives. This has not been an uncommon occurrence in the Philippines, especially in Mindanao. Such revenge or retaliation on innocent persons has been a technique utilized to deter members of the police or army forces from taking punitive actions against those fighting the established order.

(emphasis added).

Prof. James Anderson, professor of anthropology at University of California at Berkeley and former United States Marine, 2 declared,

*1398 the fact that groups such as the MNLF and the NPA have made threats against the life of a former constabulary officer and his family is entirely likely.... Iam aware that Philippine military and police officials recently have been tortured and/or assassinated by the NPA. I am also aware that MNLF and NPA members have targeted family members of these officials for kidnapping, torture and/or murder as a further means to exact retribution upon those they consider to be their political enemies.

(emphasis added.) Prof. Anderson also stated in his declaration, “The fact that her father and her family have received written death threats means that there is a real probability of a violent encounter should Ms. Aruta return to her native land.” And he stated, “The fact that Dr. Majul, himself a Muslim, believes that the Muslim secessionist movement poses a threat to Ms. Aruta is strong unbiased evidence that the same is true.”

Manolito Roliuqui, District IV Commander of the 482nd Constabulary, stated in a declaration, “while [Paulo Aruta] was in the active sendee in the Philippine Constabulary for thirty (30) years, he was one of those who actively campaigned against insurrection and rebellion, so that upon his retirement, his life and that of his family were the object of revenge by the rebels, proof of which he had received anonymous letters threatening to kill him and his family.” (emphasis added). The Barangay Captain of Don Andres also testified in a declaration:

When said Lt. Anita retired from the service, he and his family were object of reprisals by the rebels, thus endangering his life and that of his family. This can be proven by many death threats he received from anonymous persons as well as some unsigned letters, for which reason, prompted Miss Vivian C. Aruta, one of his daughters to flee to the United States sometime in 1985, which was later on followed by her youngest sister, Miss Eliza Anita to flee to Germany in mid 1987.

Ralph Saenz, former FBI special agent and current head of international security for Levi Strauss, 3 testified specifically that an ex-Philippine Constabulary official would be at risk. He described the risk to family members from the MNLF and NPA as part of a continuum. The risk from the MNLF is not as great as the risk from the NPA, and the risk to a family member is not as great as the risk to the politically active individual. He quickly added,

That’s not to say, however, that they would be immune from ... risk, because there have been instances in some of the provinces where threats have been made against family members of a particular policeman or police official or elected official with the idea through the family you send the message to the person.... I think most of us can probably understand we may be much more willing to accept risk if the risk is to us as opposed to where the risk is to our daughter or son or wife.

The Immigration Judge at the hearing posed the following hypothetical to Mr. Saenz:

We have an individual who has clearly been a combatant, he has been in the Constabulary, he has fought against the NPA, he has fought against the MNLF, he is known presumably to both these organizations. As a matter of fact, one of them even had him as a hostage but let him go. Now he has a family member. That family member has not been in the Philippines since 1985. While she was in the Philippines other than the familial relationship she participated in no political activities that could be considered by the NPA or the MNLF as particularly heinous crimes against the people or against their organizations. Would you say in such a situation, Mr. Saenz, that there is a clear probability of a real likelihood that if the family member returned to the Philippines she would be targeted by either the NPA or the MNLF?

*1399 Mr. Saenz answered that, if Aruta were an employee of his company, he would recommend against sending her back to the Philippines because the risk would be unacceptable, even if she would have been a valuable employee in the Philippines. In answer to another hypothetical question, “would an ex- lieutenant of the Philippine Constabulary who had arrested several prominent MNLF leaders and who had participated ... in a battle against the MNLF and the NPA, would such a person be in danger of being targeted?” Mr. Saenz answered, “Oh, absolutely.” (emphasis added).

Aruta herself testified that Mr. Aruta found the risk in the Philippines so great, even after his retirement from the Constabulary and the city council, that he took his wife and two of his daughters and fled to Germany. Mr. Saenz testified that the fact that the targeted official has left the country could actually put the remaining family members at even greater risk because it would be the only way to hurt the official, either for purposes of retribution or to serve as a deterrent to others.

In refusing to find Aruta’s fear reasonable, the BIA ignored this very substantial and admittedly credible evidence establishing that Aruta will be at risk if returned to the Philippines, while highlighting certain specific pieces of evidence that it found irrelevant to her claim. For example, it discounted the death threats to Mr. Aruta and his family, and Mr. Aruta’s kidnapping, because, according to the BIA, they occurred before his retirement. I do not see how the BIA could have drawn the conclusion that any events that occurred while Mr. Aruta was in the Constabulary or while he was a politician are irrelevant to Aruta’s asylum claim now that he is retired. All the evidence in the record, including testimony and declarations from highly qualified experts and Philippine officials, clearly and without contradiction shows that ex-officials and their family members are at risk.

The BIA also found that Aruta’s well-founded fear was undermined by the fact that Aruta returned to Mindanao after finishing college and lived there safely for two years, and by the fact that her sister had remained in Mindanao unharmed at the time of the hearing (although she had received death threats from the NPA and MNLF). But the fact that Aruta escaped harm in the past does not make her fear of future harm unreasonable. See Damaize-Job, 787 F.2d at 1386 (fact that petitioner remained unharmed in Nicaragua for two years did not defeat his well-founded fear of returning). Actual past persecution is not required for asylum where the fear of future persecution is well founded, as it is here. Moreover, all evidence in the record points to the fact that the dangers have escalated since Aruta left the country, as evidenced by her father’s kidnapping, the death threats to her sister, the executions of her father’s superior officers, and the fact that most of her family fled the country. In addition, as Mr. Saenz testified, the fact that threatening letters may have stopped does not mean that the MNLF or NPA are no longer interested in targeting someone. He elaborated that, with respect to the NPA, while there are financial concerns and short term military setbacks that account for time delays, they have a long memory-as long as twenty years, and just because they have not acted against a target in a few years does not mean that person is not still in danger. He stated, “I think the NPA has not forgotten and that they still have things that they would want to have, you know, blood vengeance for. So the memory, the organizational memory of the NPA is actually quite long.”

The BIA also discounted Aruta’s fear that she would be persecuted by the NPA, in particular. Although acknowledging that Mr. Aruta had responsibility for combatting the NPA, it discounted the risk from this group because it found no evidence that Mr. Aruta took specific actions against the NPA or that he received threats from the NPA. And although her sister received death threats from the NPA, the BIA found that this was due to her activities as a government social worker, not her relationship to the family.

The evidence is clear, and the BIA does not deny, that in his 30 years in the Constabulary, Mr. Aruta combatted the NPA He did not receive the same special commenda *1400 tion that he received for arresting two prominent MNLF leaders, but he fought against both groups for many years, and the declarations from his commanders attest to this fact.

Moreover, Aruta testified that her family received threats from the NPA as well as from the MNLF. As neither the BIA nor the IJ found this testimony incredible, we presume that it is true. See Platero-Cortez, 804 F.2d at 1131; Damaize-Job, 787 F.2d at 1338. In addition, the fact that Aruta’s sister was threatened by the NPA augments, rather than diminishes, the reasonableness of Aruta’s well-founded fear. As the Barangay Captain declared, “The eldest daughter ... being connected with the Department of Social Services, a government agency, adds to the ire of the muslim rebels and the ... NPA hence, their fear of being killed.”

Furthermore, Mr. Saenz testified that the NPA will target a family member of an official for retribution if the official has committed an “extraordinary crime against the people.” Mr. Saenz’s testimony was based on a personal interview he had with the head of the NPA. Mr. Saenz clarified that by an “extraordinary crime against the people,” the NPA leader “was referring to open armed conflict with units of the NPA.” This is precisely the “crime” that Mr. Aruta committed. Thus, according to the NPA leader himself, it is likely that Mr. Aruta’s family would be targeted for retribution by the NPA.

After reading her asylum application, Mr. Saenz was of the opinion that Aruta’s fear of returning to the Philippines has a “real objective basis,” and that it is “within the realm of possibility” that Aruta would be targeted for reprisals by the NPA if she returned to the Philippines. Prof. Anderson found her asylum application “perfectly credible, and [ ] entirely consistent with [his] knowledge of the political situation in the south Mindanao,” and concluded that Aruta has a “well-founded and rational fear of persecution should she be deported to the Philippines.” I conclude that any reasonable fact finder would be compelled to agree. As Aruta’s attorney so aptly put it at the hearing before the IJ, these “are events which would cause a rational person to be scared stiff.” The BIA’s conclusion that a reasonable person in Aru-ta’s position would not share Aruta’s fear is completely unfounded.

B. Aruta’s Family

The majority relies on Mendez-Efrain v. INS, 813 F.2d 279 (9th Cir.1987) in deciding that the Aruta family’s continued residence within the zone of danger is evidence of a reduced probability of persecution. Yet Aru-ta’s parents and two of her sisters have fled to Germany. Her sister Imelda, who continued to live in Mindanao, received death threats against her own family from the MNLF and NPA. The situation is simply not comparable to that of Mendez-Efrain where, “Mendez’s friends and family also continue[d] to live in El Salvador. They have never been harmed or threatened by the military.” Id. at 283 . 4 This court would send Aruta back to a country to be the sole member of her family still residing there.

Additionally, while petitioner in Mendez-Efrain was never “himself threatened,” id, at 283, Aruta was threatened as a member of her father’s family on several occasions. The two notes received by the Aruta family, one of which had a rock attached, stated that the entire family were at risk, again distinguishing this case from Mendez-Efrain .

Aruta is not a draft-dodger, nor are she and her family attempting to flee a life of poverty in the Philippines. Her family was financially comfortable and well-known in Ipil. They left because they feared for their safety. It seems to me that her fear, and the fear of her family, is objectively reasonable and supported by substantial evidence.

. Dr. Majul was professor of political science, Islamic studies, and philosophy at the University of the Philippines for eighteen years and has written numerous books and articles on Philippine and Islamic history, culture and politics.

. Prof. Anderson studied social structure in Luzon from 1960 to 1962. He conducted further research visits to the Philippines at least ten times between 1966 and the present. He served as a consultant for the Asian Development Institute and the Asian Institute of Technology. He was visiting Professor of Anthropology and Environmental Studies at the University of the Philippines from July 1977 to August 1979. He has also published numerous articles on the Philippines.

. Mr. Saenz received a J.D. from University of California at Berkeley, worked for five years in counter-intelligence for the FBI, and for the past six years has been performing risk analysis for Levi Strauss' overseas operations. Levi Strauss has plants in the Philippines and employs Philippine nationals to work in those plants.

. At oral argument petitioner's counsel stated that, subsequent to the filing of this appeal, Imelda also fled the Philippines. While the majority is correct in noting that our inquiry is limited to a review of the administrative record, in light of the fact that Imelda’s continued residence in the zone of danger was a basis for a significant proportion of the majority opinion, her flight may serve as a basis for a motion to reopen.