# Esther Josephine Bunuan Agbuya v. Immigration and Naturalization Service > Court of Appeals for the Ninth Circuit · March 12, 2001 · 241 F.3d 1224 URL: https://www.frixlaw.com/law-library/cases/9493837 ## Case - **Full name:** Esther Josephine Bunuan AGBUYA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** March 12, 2001 - **Citations:** 241 F.3d 1224; 2001 Daily Journal DAR 2589; 2001 Cal. Daily Op. Serv. 2017; 2001 U.S. App. LEXIS 3728; 2001 WL 238143 - **Precedential status:** Published - **Opinion:** Dissent by Hall - **Judges:** Schroeder, Fletcher, Hall - **Cited by:** 42 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9493837 ## How later opinions describe it (automated extraction) - finding past persecution on account of imputed political opinion and rejecting arguments that persecution was merely extortion where communist insurgents targeted an employee of a mining company who had taken actions in the course of her employment that the communists viewed a… - reversing no nexus finding, where petitioner was singled out by the guerillas for her unpopular actions terminating mining employees, she was kidnapped and threatened because she was perceived to be pro-government, and a reasonable factfinder would have to conclude that her ac… - holding company executive was kidnaped based on imputed political opinion stemming from a labor dispute ## Opinion text CYNTHIA HOLCOMB HALL, Circuit Judge, dissenting. The majority opinion in this case stretches the meaning of political persecution to cover those aliens who are persecuted on purely economic grounds. Because I believe that only Congress has the authority to re-write our immigration laws in this manner, I dissent. I. The majority opinion’s recitation of the facts glosses over in a few sentences a sequence of events that the BIA thought pivotal in explaining why Petitioner was abducted. Petitioner began working for the Benguet Mining Company as a personnel clerk in 1980. Petitioner was rapidly promoted within the Company’s personnel department. Petitioner was responsible for the unenviable tasks of terminating workers and notifying workers when they were being disciplined for habitual absences, theft of company property, or inefficient work practices. In 1985, when the Company began a series of downsizing programs that sparked much hostility among the Company’s unionized miners, Petitioner became a lightning rod for union members’ fierce criticism of company policies. At one heated meeting, Petitioner was assaulted by the local union president. After a second round of downsizing in 1989, the union members petitioned management, seeking Petitioner’s discharge. The union also staged a rally at the company’s main gate demanding that she be removed from office. The Company again downsized its workforce in 1990 and 1991, making Petitioner the target of even more scorn from angry laborers. At work, Petitioner received telephone calls threatening her and her family if she did not resign. Petitioner was also subjected to other harassment from workers: At one point a disgruntled worker swung a chair at her, and union members even called her a terrorist. In addition, her children had to be escorted to their school buses because of concerns about their safety. Fed up with this union harassment, and also harboring- concerns about the propriety of some of her supervisor’s actions, Petitioner resigned in July of *1232 1991. Approximately two months after her resignation, three individuals identifying themselves as NPA members abducted Petitioner. The important question in this case is not whether what happened to Petitioner was persecution. Rather, the panel here must focus on why Petitioner was abducted and abused. Petitioner described her captors’ motivations at great length in her hearing before the Immigration Judge: They wanted me to accept the faults that I’d been doing during my work or during my tenure in that Benguet gold operation to accept that I’d been doing, that I have had wrongdoings to the laborers of the Philippines.... Yeah, they told me that they belonged to the NPA group and they sympathized with the workers of Benguet Corporation because they claimed that we had been so abusive and we’d been threatening them to be discharged. Administrative Record at 57. On cross-examination, INS Counsel asked further questions to probe Petitioner’s views regarding why she was abducted: Q. During the time that you were being held by these individuals, what did they tell you? Did they say anything to you or ask you any questions? A. They told me that I had been abusive, that I had been coercing the employees of Benguet Corporation and I’d been doing unlawful termination to the employees. Q. So, they were primarily interested in your alleged injustices that you committed to the workers while you were employed? A. Uh-huh. Q. Is that yes? A. Yes sir. Q. So, them main problem with you was the fact that they didn’t think that you were being fair when you were employed with Benguet Corporation? A. Yes sir. Q. [D]id the rebels express any other problems with you other than those that stemmed from your employment? A. Yeah, they told me that it’s my personality in dealing with the workers. Q. You were too harsh on them. A. They think I was too strict on them. Q. Was anything else discussed? A. Nothing more, sir. Administrative Record 67-69. This was followed by further questioning on re-direct. Trying to elicit testimony to establish political persecution, Petitioner’s counsel initiated the following exchange about her captors: Q. Did you ever state your position as to the NPA or to the Philippine government? A. What position are you referring to as, sir? Q. Your political opinion. In other words, did you ever discuss what side you were on? A. No, I didn’t side anybody. Administrative Record at 71. Petitioner then stated that she was afraid to make any political statements because she believed that doing so would antagonize her captors. In short, this record clearly establishes that Petitioner was singled out by the NPA because of her unpopular actions in a bitter conflict between Company management and labor. Petitioner’s abduction was the culmination of a lengthy campaign by union members to harass and intimidate Petitioner and to force her discharge. Petitioner was plainly identified as the human face of a mining company’s downsizing program, and was subjected to inhumane harassment as a result. Like the majority, I find the harassment Petitioner had to endure quite disturbing. But my personal feelings aside, I can find nothing in this record that comes close to indicating that Petitioner was ever persecuted on account of imputed political opinion. *1233 II. After an unusually thorough review of the evidence that prompted the Immigration Judge to deny Petitioner’s asylum application, the Board of Immigration Appeals dismissed her appeal on the grounds that she had failed to prove that she had been persecuted on account of her political opinion. In reviewing that finding, we must defer to the BIA’s expertise. “To reverse the BIA finding we must find that the evidence not only supports [a contrary] conclusion, but compels it.” INS v. Elias-Zacarias, 502 U.S. 478 , 481 n. 1, 112 S.Ct. 812 , 117 L.Ed.2d 38 (1992). Moreover, the applicant has the burden of establishing a “causal connection” between the persecution and the political opinion. Sangha v. INS, 103 F.3d 1482, 1486-87 (9th Cir.1997). In Petitioner’s case, there is simply no evidence that politics ever entered into the NPA’s persecution calculus. This is a straightforward case of persecution on exclusively economic grounds. As her own testimony reveals, when NPA guerrillas asked Petitioner whose side she was on in the political disputes gripping the Philippines, Petitioner responded “I didn’t side [with] anybody.” Petitioner unambiguously and repeatedly testified that she was abducted and abused because her captors viewed her actions, all of which were made within the scope of her employment with the Company, as unduly harsh. In viewing Petitioner’s persecution as political in nature, the majority places great emphasis on the facts that Petitioner “was kidnapped and threatened only after she had resigned her position and that the NPA threatened to monitor her activities in the future.” From this fact the majority concludes that “she was identified by the NPA as an enemy for more than simply the job she held.” This conclusion simply does not follow. The NPA may have continued to persecute Petitioner even after her resignation for any number of reasons stemming from sheer vindictiveness to a desire to make an example of her in order to deter other company employees from disciplining union members in the future. Or they may have felt that by kidnapping her after her resignation, they would encounter less “heat” from the Company and the authorities. Perhaps the NPA found itself in desperate need of cash on the day of the abduction, and targeted Petitioner as someone whose relatives were likely to come up with 150,000 pesos in ransom. For all we know, her captors may have mistakenly believed that Petitioner was still working for the Company on the day they abducted her — she had resigned less than two months previously. Unlike the majority, I’d prefer not to decide this case on the basis of speculation not articulated in the record. The BIA examined the record and drew a reasonable conclusion: [H]er disputes with the miners stemmed from the respondent’s performance of her job duties by implementing company personnel policies in a way which the union, rightly or wrongly, perceived as unjust. The direct and circumstantial evidence does not support an inference that the miners’ threats and actions •against her were motivated by anything other than their anger at adverse personnel actions, including disciplinary actions and layoffs which they considered to be unfair or in violation of their contract. I am profoundly troubled that the majority effectively ignores the substantial evidence standard by disregarding this BIA conclusion on the basis of far-fetched speculation about the chronology of events. The majority’s second justification for reversing the BIA’s determination stems from a single out-of-context quote about Petitioner’s “wrongdoings to the laborers of the Phillippines.” The majority concludes that this quote demonstrates that the kidnappers imputed to Petitioner some vague ideological opposition to the rights of workers everywhere in the country. The majority then leaps to the conclusion that this opposition obviously rendered Petitioner “an opponent of the guerilla group” in the minds of her captors. The extensive transcript quotations I repro *1234 duce above demonstrate that such a reading of Petitioner’s testimony is implausible. Her captors quite obviously objected to the employment actions Petitioner had taken at a single mine. When her captors asked Petitioner about her views toward the NPA, she told them that she did not side with anybody. There is no evidence in the record that the NPA kidnappers viewed Petitioner as an ideological person. The majority’s conclusion that the BIA lacked substantial evidence to support its conclusion is puzzling, given the pages of Petitioner’s testimony where she unambiguously stated that she was singled out because of unpopular employment actions and perceived harshness in dealing with union members. Even under this court’s most expansive interpretations of the “on account of political opinion” language, Petitioner cannot prevail. Briones v. INS, 175 F.3d 727, 728 (9th Cir.1999) (en banc), involved an alien who had worked as a confidential informer for the government of the Philippines, supplying it with information that the government used to apprehend and eliminate NPA operatives and defeat NPA guerrillás in combat. This court held that Briones’s “active involvement in a fiercely ideological dispute between the government of the Philippines and the Communist NPA” raised a likelihood that the NPA imputed certain political views to Briones. Briones was employed by the government in a civil war against the NPA. By contrast, Petitioner was employed by a private firm involved in a labor dispute with its employees. It is therefore not difficult to characterize Briones’s activity as political and Petitioner’s as nonpolitical. Similarly, in Vera-Valera v. INS, 147 F.3d 1036 (9th Cir.1998), this court held that Vera-Valera’s prominent, publicly-articulated support for a Peruvian government project designed to weaken the Sendero Luminoso, and his subsequent persecution at the hands of Sendero Lumi-noso members who “accused him of being a spy for the government,” amounted to persecution on account of his political opinions. Id. at 1038-39. Petitioner never mentioned supporting the government of the Philippines, nor did the NPA ever accuse her of being a government supporter. In Borja v. INS, 175 F.3d 732, 734 (9th Cir.1999) (en banc), this court determined that an alien who was persecuted after she told armed NPA operatives that she would not join their organization because she was “pro-government,” had indeed been persecuted “on account of her political opinions.” The court went to great lengths to note Borja’s “outspoken political opinion,” and her drawing of “a political line in the sand.” Id. at 736 . This outspokenness is in sharp contrast to Petitioner’s silence. Finally, the majority cites Desir v. Ilchert, 840 F.2d 723 (9th Cir.1988). In Desir , this court held that the petitioner’s refusal to pay extortion money to the Haitian Ton Ton Macoutes was an expression of political opposition only because the Haitian political system was founded on extortion. See id. at 727 (“To challenge the extortion is to challenge the underpinnings of the political system.”). Outside of a political environment as unique as the Haitian “kleptocracy” that prevailed under Duvalier, refusing to pay extortion money is not an expression of political opposition. Cf. Elias-Zacarias, 502 U.S. at 481 , 112 S.Ct. 812 (holding that refusing to join a guerrilla group is not political expression). Moreover, it is utterly implausible that labor-management relations is as central to the underpinnings of the Philippines’ political system as extortion was to the Haitian political system under Duvalier. Certainly nothing in the record suggests as much. 4 In any event, even if Desir is *1235 read most expansively, it does not support the proposition that Petitioner’s employment actions resulted in an imputation of anti-NPA political opinions to her: That question is factual, not legal; and the analogy between refusing to pay a bribe and holding down a job is something of a stretch. In holding that an alien who is persecuted based purely on economic actions taken in the private sector is eligible for asylum, the majority creates a split among the circuits. The majority’s holding is inconsistent with the Seventh Circuit’s opinion in Cuevas v. INS, 43 F.3d 1167 (7th Cir.1995). In Cuevas , the petitioners were absentee landlords who were harassed and threatened after they refused to sell their agricultural land to squatters who were acting on behalf of the NPA. The Court noted that regardless of the squatters’ political orientation, the fact remained that they were interested in purchasing the land simply “in order to grow rice.” Id. at 1171 . The Seventh Circuit wisely determined that whatever harassment petitioners endured as a result of their failure to sell the land was economic intimidation, and not political persecution. The court therefore held that the petitioners had failed to demonstrate persecution on the basis of a protected ground. I would follow Cuevas and deny the petition in the case at bar. By holding that Petitioner was persecuted on the basis of her political beliefs, the majority essentially conflates an economic motivation with a political one. But in writing the Immigration and Nationality Act, Congress did not intend to provide those persecuted on economic grounds with refugee status. Given that decision by Congress, the courts must not do what the majority has done here: collapse economic and political persecution into the same category. All over the world, individuals are persecuted because they are rich or poor. Workers are oppressed by management in nations across the globe and, as we see in this case, workers sometimes persecute managers as well. Congress might one day decide to protect all these victims of economic persecution with refugee status. But that is a decision for Congress to make; and the courts must not usurp that congressional prerogative. I respectfully dissent. . Footnote 2 of the majority opinion states that “the record demonstrates that central to the guerillas’ advocacy of communism is the belief in more egalitarian labor-management relations.” I remain unsure what, precisely, in the record demonstrates that trend. To the contrary, my reading of the record suggests that the NPA seeks only power itself. For example, page 99 of the Administrative Record, which is a copy of a 1991 Amnesty International Report, documents numerous in *1235 stances in which the NPA has assassinated mainstream labor union activists because of their refusal to acquiesce in the NPA's violent, revolutionary tactics. When it comes to labor-management disputes, the NPA's egalitarianism appears limited to ensuring that both workers and managers live in a state of fear. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9493837. Public record. Not legal advice.