Interim Decision #3307

Interim Decision #3307

In re T-M-B-, Respondent

Decided February 20, 1997

U.S. Department of Justice

Executive Office for Immigration Review

Board of Immigration Appeals

(1) An applicant for asylum need not show conclusively why persecution occurred in the past

or is likely to occur in the future. However, the applicant must produce evidence from which

it is reasonable to believe that the harm was motivated, at least in part, by an actual or

imputed protected ground.

(2) Criminal extortion efforts do not constitute persecution “on account of” political opinion

where it is reasonable to conclude that those who threatened or harmed the respondent were

not motivated by her political opinion.

(3) Country profiles submitted by the Department of State’s Bureau of Democracy, Human

Rights and Labor are entitled to considerable deference.

FOR THE RESPONDENT: Miguel D. Gadda, Esquire

FOR THE IMMIGRATION AND NATURALIZATION SERVICE: Dina F. Haynes, Assistant District Counsel

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

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

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

HURWITZ, Board Member:

In a decision dated August 8, 1995, an Immigration Judge determined that

deportability on the charge set forth above was established by clear, unequivocal, and convincing evidence in conformity with Woodby v. INS, 385 U.S.

276 (1966). The Immigration Judge denied the respondent’s applications for

asylum and withholding of deportation pursuant to sections 208(a) and

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

1253(h) (1994), but granted the respondent’s request for voluntary departure

under section 244(e) of the Act, 8 U.S.C. § 1254(e) (1994). The respondent

timely appealed the decision of the Immigration Judge. The appeal will be

dismissed.

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I. FACTS

The respondent is a 43-year-old native and citizen of the Philippines who

entered the United States at San Francisco, California, on March 29, 1993, as

a visitor for pleasure, authorized to remain in the United States until October

27, 1993. The respondent claims that she fled the Philippines because of her

fear of harm from a guerrilla group known as the New People’s Army

(“NPA”). The respondent testified that the NPA sought her as a recruit as

well as to obtain the financial support of her parents’ shoe business. The

respondent said that her contact with the NPA began in September 1992 and

ended in February 1993, shortly before she left the Philippines.

According to the respondent’s testimony, she was first approached by two

NPA members in September 1992, while working at her parents’ shoe store.

She stated that the NPA representatives attempted to recruit her because they

needed her “to help them with their costs.” The respondent explained that she

refused to pay “revolutionary taxes” to the NPA because she supported the

government. The respondent testified that although she was never involved

in any political activities, she opposed providing financial support to the

NPA “because they kill people, women and children.”

The respondent testified further that the NPA representatives became

angry and subsequently demanded a “revolutionary tax” of 3,000 pesos at

gunpoint. The respondent testified that she paid the requested amount and

was informed by the NPA representatives that they expected a similar payment on a monthly basis thereafter. She continued to make monthly payments of 3,000 pesos through January 1993.

In February 1993, the NPA representatives demanded that her financial

contribution double. She testified that when she told them that she was

unable to provide the 6,000 pesos, the NPA members became angry and

slapped and beat her. One of the NPA representatives then threatened her at

gunpoint while the other member used a knife to cut her right arm. Before

leaving, the NPA representatives informed her that they would return for the

“tax” and failure to provide the money would result in her death. The respondent stated that she did not inform her parents that she was paying the NPA a

“revolutionary tax” from their business until she was injured. She said that

the injury caused her to make preparations to leave the country. She left the

Philippines in March 1993.

The respondent indicated that she worked as an accountant for 15 years at a

hospital in Manila during the time she was threatened by the NPA, although

her encounters with the NPA occurred only at her parents’ shoe store. The

respondent stated that her parents are now retired and have closed their shoe

store. The respondent explained that the NPA sought financial assistance generally from the businesses located in the same area as her parents’ business,

and she surmised that the NPA sought her out because of her position at her

parents’ successful business, as well as her family’s high standard of living.

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Included in the record is the country profile prepared by the Department of

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

The Philippines - Profile of Asylum Claims & Country Conditions (June

1995) [hereinafter Profile]; see also 8 C.F.R. 208.11(a) (1996). The Profile

reveals that “[a] large proportion of Philippine asylum applicants allege that

the NPA threatens them with death or other harm for refusing to support that

organization financially. In most instances the NPA is not interested in the

political opinion of its intended victim but in the victim’s wealth.” Profile,

supra, at 4. The Profile also provides evidence that the NPA’s strength is at

present substantially diminished. It states that the NPA has a “significant

presence in only 2 percent of the 42,000 townships” within the Philippines

and “[i]t is generally possible for Filipinos to seek internal resettlement.” Id.

at 4.

II. APPLICABLE LAW

A. “Persecution” Must Be “on account of” an Enumerated Ground

An applicant for asylum bears the burden of establishing that he or she

meets the “refugee” definition of section 101(a)(42)(A) of the Act, 8 U.S.C.

§ 1101(a)(42)(A) (1994). The respondent must demonstrate that she is unable

or unwilling to return to, and is unable or unwilling to avail herself of, the

protection of the Philippines, 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.” Id. Even treatment that is

regarded as “morally reprehensible” is not “persecution” within the meaning

of the Act unless it occurs “on account of” one of the five enumerated

grounds in the Act. Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995).

B. Mixed Motive

The burden of establishing eligibility for asylum lies with the applicant.

We recognized in Matter of S-P-, 21 I&N Dec. 486 (BIA 1996), that an applicant for asylum need not show conclusively why persecution occurred in the

past or is likely to occur in the future. However, the applicant must produce

evidence from which it is reasonable to believe that the harm was motivated,

at least in part, by an actual or imputed protected ground. INS v.

Elias-Zacarias, 502 U.S. 478 (1992).1 In a claim of persecution based upon

political opinion (either actual or imputed), the persecution must be “on

account of” the victim’s political opinion, not the persecutor’s. Id.

1 Persecution

for "imputed" grounds (e.g., where one is erroneously thought to hold

particular political opinions or mistakenly believed to be a member of a religious sect) can

satisfy the "refugee" definition. Matter of A-G-, 19 I&N Dec. 502, 507 (BIA 1987), aff'd sub

nom. M-A- v. INS, 899 F.2d 304 (4th Cir. 1990).

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In determining the motivation for threats or harm in an actual or imputed

political opinion asylum claim, the record must be examined for direct or circumstantial evidence from which it would be reasonable to conclude that

those who threatened or harmed the respondent were in part motivated by an

assumption that her political views were antithetical to their cause.

III. ANALYSIS

The respondent testified that the NPA initially approached her as part of

their effort to finance their organization. She stated that when she told them

that she would not provide funds because she supported the government, the

NPA representatives threatened to harm her. She testified that the NPA representatives left without incident after she agreed to provide monthly financial

contributions to their cause. The respondent continued providing monthly

“revolutionary taxes” to the NPA without incident for several months. When

the NPA demanded that the respondent double her contribution, she resisted

and was harmed.

We find first that the respondent has failed to demonstrate that the abuse

she suffered at the hands of the NPA was directed toward modifying or punishing political opinion. The United States Supreme Court has held that an

asylum applicant must demonstrate that the persecutor inflicted the harm

because of the victim’s actual or imputed political opinion. INS v. EliasZacarias, supra. Although the respondent testified that she opposed the

NPA, her actual political views, while relevant to the inquiry of whether she

was harmed because of her political opinion, does not by itself answer the

question. Id.

The statements and actions by the NPA, and the resulting harm, are consistent with the nonpolitical end of extorting money for their cause. The

NPA’s conduct towards the respondent is consistent with extortion, i.e., the

illegal taking of money by anyone who employs threats, or other illegal use

of fear or coercion in order to obtain the money. Cf. Desir v. Ilchert, 840 F.2d

723 (9th Cir. 1988) (holding that government-sponsored extortion may be

deemed to be “on account of” the victim’s political opinion when evidence

reveals that persons who resisted extortion were marked as political subversives and subjected to official repression).

The issue before us is not whether the NPA levied “revolutionary taxes,”

but rather how the NPA demands for money should be characterized. The

respondent contends that the NPA targeted her for the infliction of financial

harm on account of her political opinion. However, the evidence supports the

conclusion that the imposition of “revolutionary taxes” (enforced by threats

of harm and enforced by actual harm) was extortion related, not to the

respondent’s political opinion, but rather to her ability to pay.

The reasonable inference from the respondent’s testimony is that the NPA

sought financial backing from business people regardless of their political

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opinion. The respondent is from a family of means and was in a position to

supply needed financial resources to the NPA, whose encounters with the

respondent were in furtherance of this purpose. The respondent’s testimony

reveals that she was sought by the NPA only at her parent’s place of business

and that the business is now closed. She failed to provide any evidence that

the NPA sought her after the business closed, or at the hospital where she

worked for 15 years before leaving the Philippines. The evidence indicates

that the NPA had no interest in the respondent beyond her association with

her parents’ business. This evidence further supports the conclusion that the

NPA was motivated by the ability of the business to generate financial

support.

Secondly, we find that the respondent failed to demonstrate that the NPA

treated her differently from others who were similarly situated. The respondent’s application indicates that the NPA’s attempt to extort money from her

parents’ business is consistent with its illegal activities in the locality and

with its solicitation of “revolutionary taxes” from other local businesses.

Additionally, available in this case is the country profile submitted by the

Department of State’s Bureau of Democracy, Human Rights and Labor,

dated June 1995. Profile, supra. The Profile supports the conclusion that the

respondent was not threatened and harmed “on account of” her political opinion but because of her resistance to pay extortion. It reveals that the NPA’s

practice of securing financial support by the threats of force and actual harm

is motivated by the victim’s wealth, not the victim’s political opinion. The

Profile, in the absence of contradictory evidence, is entitled to considerable

deference. See Kazlauskas v. INS, 46 F.3d 902, 906 (9th Cir. 1995) (stating

that country condition profiles developed by the United States State Department are “‘the most appropriate and perhaps the best resource’ for ‘information on political situations in foreign nations’”) (quoting Rojas v. INS, 937

F.2d 186, 190 n.1 (5th Cir. 1991).

While the harm that the respondent has described is reprehensible, the evidence presented does not support her claim that the harm was caused “on

account of” her political opinion. Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993)

(finding that “persecution" within the Act does not encompass all treatment

that society regards as unfair, unjust, or even unlawful or unconstitutional).

For example, criminal extortion efforts do not constitute persecution “on

account of” the victim’s political opinion where it is reasonable to conclude

that those who threatened or harmed the respondent were not motivated by

her political opinion. Cuevas v. INS, 43 F.3d 1167, 1171 (7th Cir. 1995)

(holding that refusal to sell land despite NPA threats was based on economics, not on account of a political opinion); see also Matter of R-, 20 I&N Dec.

621, 623 (BIA 1992) (finding that the fact that guerrilla militants seeking

operating resources from an asylum applicant in the form of material assistance and manpower may also have had a generalized political agenda is

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inadequate to establish that the applicant fears persecution from them on

account of political opinion).

IV. CONCLUSION

We find no error in the Immigration Judge’s determination that the

respondent failed to meet her burden of showing that she suffered past persecution “on account of” her political opinion. The evidence indicates that the

NPA’s threats and infliction of harm directed at the respondent are appropriately characterized as extortion, not threats made on account of her political

opinion.

Inasmuch as the respondent has failed to satisfy the lower burden of proof

required for asylum, it follows that she also has failed to satisfy the clear

probability standard of eligibility required for withholding of deportation.

See Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987). The evidence does

not establish that it is more likely than not that the respondent would be subject to persecution on account of one of the five grounds specified in section

243(h)(1) of the Act. See INS v. Stevic, 467 U.S. 407 (1984). Accordingly, the

appeal will be dismissed.

ORDER:

The respondent’s appeal is dismissed.

FURTHER ORDER:

Pursuant to the Immigration Judge’s order

and in accordance with our 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 extension

beyond that time as may be granted by the district director; 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.

I agree with my dissenting colleague, Board Member Rosenberg, insofar

as she concludes that the respondent has demonstrated a well-founded fear of

persecution under the standards set forth in Matter of S-P-, 21 I&N Dec. 486

(BIA 1996). On the facts established by the respondent, a reasonable person

in the respondent’s circumstances would have an objective basis to believe

that the harm she suffered at the hands of the New People’s Army (“NPA”)

was, at least in part, on account of her expression of opposition to the political

aims of the NPA. I would remand the record for further inquiry into whether

circumstances in the Philippines with respect to the NPA have changed to the

extent that the respondent no longer has an objective basis for fearing persecution or whether internal relocation within the Philippines is a reasonable

possibility for avoiding further persecution in the respondent’s case. See

Matter of H-, 21 I&N Dec. 337 (BIA 1996).

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Consequently, I respectfully dissent from the decision to dismiss the

respondent’s appeal.

DISSENTING OPINION: Lory D. Rosenberg, Board Member

I respectfully dissent.

The uncontroverted evidence in this case establishes that in September

1992, the respondent was confronted in her parents’ store by members of the

New People’s Army (“NPA”), a group of self-proclaimed communist insurgents. They attempted to recruit her to join their anti-government organization. The respondent adamantly refused to join, stating that she was

“progovernment” and that she opposed the group because they were killers of

women and children. She testified that “[the NPA] get mad at me. They

pointed a gun at me and then I thought they were going to kill me because I

argued with them that I don’t want their . . . organization because they kill

people, women and children.”

Fearing that she would be killed, the respondent offered to pay a “revolutionary tax” to satisfy their demands for support and participation. The NPA

agreed and demanded payment of 3,000 pesos per month in lieu of her joining them, which they regularly collected over the next 4 months. When, in

February 1993, the group insisted upon a doubling of the payment, the

respondent replied that she was unable to provide that amount. NPA members then slapped her, beat her, threatened her at gunpoint, and slashed her

arm with a knife, leaving her with a scar that she still bears today. They

warned that failure to pay the increased amount would result in her death.

Soon thereafter, the respondent fled the Philippines and sought refuge in the

United States.

The majority commits a fundamental error in dismissing the respondent’s

credible testimony of threats, beating, and physical suffering inflicted upon

her by the NPA as nothing more than “extortion not on account of her political opinion.” Matter of T-M- B-, 21 I&N Dec. 775 (BIA 1997). Based upon

this credible evidence, I conclude that the NPA’s actions were motivated, at

least in part, by the respondent’s expressed political opposition and resistance to the group’s recruitment efforts. See INS v. Elias-Zacarias, 502 U.S.

478 (1992) (recognizing that a persecutor may be motivated to harm the victim for more than one reason); Desir v. Ilchert, 840 F.2d 723 (9th Cir. 1988);

Matter of S-P-, 21 I&N Dec. 486 (BIA 1996). In light of the testimony presented and the avowedly political aims of the persecutor, I find puzzling, if

not myopic, the majority’s ready conclusion to the contrary.

I. PERSECUTION ON ACCOUNT OF POLITICAL OPINION

This is not a case of mere nonpolitical extortion. Cf. Aruta v. INS, 80 F.3d

1389, 1392-93 (9th Cir. 1996) (finding ineligibility for asylum where an

applicant failed to present any evidence that she had a political opinion or that

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she or her family ever was targeted, threatened, or harmed by rebel groups for

any reason). Retribution for refusal to give in to extortion is not necessarily

devoid of political content. Desir v. Ilchert, supra, at 728.1 I am unpersuaded

by the majority’s conclusion, not only because their analysis is contrary to

controlling law, but also because they fail to explain why they conclude that

the threats and harm suffered by the respondent resulted from a nonpolitical

motive, and that theirs is the only reasonable characterization of the facts.

A. Inferences Concerning the Persecutor’s Motives

An asylum applicant does not bear the unreasonable burden of showing

the exact motivation of the persecutor when different reasons for actions are

possible, so long as a reasonable person would fear that the persecution was

on account of one of the five grounds enumerated in the statutory definition

of a refugee in the Act. Matter of S-P-, supra, at 489; see also INS v.

Elias-Zacarias, supra. The courts have long recognized that persecutors are

not likely to provide their victims with evidence of their motives.

Bolanos-Hernandez v. INS, 767 F.2d 1277, 1284-88 (9th Cir. 1984).

To determine if the respondent’s well-founded fear is on account of persecution, we need to examine the record for direct or circumstantial evidence

from which it would be reasonable to conclude that those who threatened or

harmed the respondent were in part motivated by an assumption that her

political views were antithetical to their cause. Matter of S-P-, supra, at 9-10;

see also Matter of Fuentes, 19 I&N Dec. 658, 662 (BIA 1988) (recognizing

that there can be more than one possible basis for persecutor’s actions, and

holding that alien’s task is simply to demonstrate the reasonableness of a

motivation which is related to one of the enumerated grounds); Matter of

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

The majority acknowledges that an alien may establish eligibility for asylum where the evidence reflects that it is reasonable to believe that the harm

suffered was motivated, at least in part, by an actual or imputed protected

ground. See Matter of T-M-B-, supra, at 777 (citing Matter of S-P-, supra);

see also INS v. Elias-Zacarias, supra. However, according to the majority,

the respondent’s interactions with the NPA were wholly devoid of political

content or motivation. They contend that the threats and abuse inflicted by

members of the group are “consistent with the nonpolitical end of extorting

money for their cause.” Matter of T-M- B-, supra, at 778. The majority dubs

1 Although Desir v. Ilchert, supra, involved extortion and violence by a group associated

with the government of Haiti under a political system referred to by the court as a

“kleptocracy,” the source of such persecution may be nongovernmental and “may also emanate

from sections of the population that do not respect the standards established by the laws of the

country concerned.” 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 para. 65, at 17 (Geneva,

1992)(“Handbook”); see also Lazo-Majano v. INS, 813 F.2d 1432 (9th Cir. 1987).

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its interpretation of the group’s motivation a “reasonable inference” based on

the respondent’s testimony. Id.

Yet the evidence demonstrates that the NPA’s actions also are consistent

with the politically motivated goals of punishing and overcoming the respondent’s political opposition and securing her allegiance to their cause through

intimidation and physical abuse. See Matter of Acosta, 19 I&N Dec. 211

(BIA 1985), modified on other grounds, Matter of Mogharrabi, supra.

Indeed, the likelihood that the NPA harbored a persecutory motive toward

the respondent is substantiated by evidence that she bluntly declared to the

NPA recruiters that she was unwilling to accede to the group’s demands

because “I am progovernment.” INS v. Elias-Zacarias, supra; see also Osorio

v. INS, 18 F.3d 1017, 1025 (2d Cir. 1994) (stating that the political opinion

actually held by or imputed to the victim is essential to determining that persecution threatened or suffered is on account of political opinion).

In Singh v. Ilchert, 69 F.3d 375, 379 n.1 (9th Cir. 1995), the United States

Court of Appeals for the Ninth Circuit rejected the argument that a Sikh asylum applicant was not tortured on account of political opinion, because the

“real motive” was to gather information about Sikh separatists. The court

stated that “[w]hile that may have been one motive of the police,” an additional motive was that the police refused to believe the applicant when he

insisted that he was not a Sikh separatist. Id.; see also Rodriguez-Roman v.

INS, 98 F.3d 416, 431 (9th Cir. 1996) (holding that the Board erred in concluding that severe punishment an alien would suffer upon return to Cuba following illegal departure would be merely criminal prosecution, rather than

persecution on account of political opinion); Osorio v. INS, supra, at 1028

(holding that “[t]he plain meaning of the phrase ‘persecution on account of

the victim’s political opinion,’ does not mean persecution solely on account

of the victim’s political opinion” (quoting INS v. Elias- Zacharias, supra, at

482 . . . and that “the conclusion that a cause of persecution is economic does

not necessarily imply that there cannot exist other causes of the

persecution”).

In Matter of S-P-, supra, we made clear our acceptance of a “mixed

motive” theory as a basis for establishing that mistreatment by a persecutor

was “on account of” a protected ground. Although the respondent, under

threat of death, initially paid the NPA’s “revolutionary tax” in lieu of joining

their group, she continued to voice her vehement and vocal political opposition.2 When finally she refused based on her political opposition, the NPA

doubled the amount and attacked her.

2 There is no evidence that the respondent's reason for resisting and ultimately refusing to

pay an increased “revolutionary tax” was because she didn't want to give up her money or

objected to the NPA's methods of raising funds. Thus, this is not a situation in which the

victim's reasons for not cooperating with the alleged persecutor are subject to speculation that

her resistance was for nonpolitical reasons. See, e.g., INS v. Elias-Zacarias, supra, a case upon

which the majority relies.

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By construing the record to establish only that the NPA acted against the

respondent out of a desire for money, the majority has impermissibly rejected

credible evidence which establishes the reasonableness of the respondent’s

contentions that the NPA’s motive in threatening and harming her was on

account of her political opposition. See Cardoza-Fonseca v. INS, 767 F.2d

1448, 1453 (9th Cir. 1985) (noting that establishment of objective facts

through testimony alone does not make them any less objective), aff’d, 480

U.S. 421 (1987). However, in determining the respondent’s eligibility for

asylum on the basis of objective facts which raise the possible coexistence of

a political and a nonpolitical motive for the persecutor’s actions, we are

obliged to grant her the benefit of the doubt. See Matter of S-M-J-, 21 I&N

Dec. 722 (BIA 1997).3

Any inferences drawn concerning the implausibility of factual allegations

must themselves be supported by substantial evidence. Aguilera-Cota v. INS,

914 F.2d 1375, 1381 (9th Cir. 1990). It cannot be said that there is substantial

evidence to find the respondent’s contentions that the NPA had a political

reason for persecuting her are implausible. Under a mixed motive standard, a

reasonable inference cannot be drawn to the exclusion of other legitimate

inferences. The confluence of a desire not to be the victim of extortion and

the public, political opposition to the NPA’s ideology and its operations does

not undermine the political nature of a resister’s opposition, and should not

affect our characterization of the punishment she may face. Providing one

does not reason from a conclusion of ineligibility, the totality of the evidence

in the record supports an equally or more persuasive “reasonable inference”

that the NPA acted from a desire to simultaneously further both its political

and nonpolitical goals.

B. Consideration of Mixed Motive Factors

Although Matter of S-P-, supra, involved a claim of persecution by government authorities, several of the factors we articulated in that case are useful in assessing motivation in claims against nongovernmental groups such

as the NPA.4 Thus, a determination of whether the NPA’s conduct in relation

to its extortion or recruitment qualifies as persecution on account of an enumerated ground depends upon the nature of the demands, warnings or threats

asserted, whether such threats are accompanied by physical harm or abuse,

and the type of harm inflicted. Matter of S-P-, supra. Specific factors to be

3 See also Handbook, supra, paras. 203-204, at 48. In addition, where an applicant is unable

to provide documentary or other support for all of her statements, yet provides a credible

account, she should be given the benefit of the doubt. Id. para. 196, at 47.

4 To ascertain whether the abuse inflicted was intended to punish or modify a respondent’s

political views, rather than merely for reasons of extortion, we examine: (1) indications that the

threats or abuse were directed toward modifying or punishing opinion rather than conduct; (2)

statements or abuse out of proportion to nonpolitical ends; and (3) treatment of others who were

confronted by the agent of persecution. Matter of S-P-, supra.

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examined against the political backdrop of the Philippines also may include

the extent to which the victim’s views or affiliations, social class or status

(e.g., as a business owner or merchant), religion, or nationality appears to

have been a consideration in the NPA’s acts of extortion and persecution.

For example, where the evidence reflects no more than mere monetary

demands by the NPA, made solely in order to extort funds for their cause,

such acts most likely will not qualify as persecution on account of a protected

ground under the Act. See Aruta v. INS supra; Cuevas v. INS, 43 F.3d 1167,

1171 (7th Cir. 1995) (finding that dispute with NPA was based on economic

factors, not on the applicants’ political opinions or absentee landlord status).

However, beatings, imprisonment, or assault for the purpose of extortion

may constitute politically motivated persecution. See, e.g., Desir v. Ilchert,

supra, at 728. (finding that “the treatment endured by Desir,” resulting from

his failure to make extortion payments, “is more properly understood as

motivated by ‘political’ rather than ‘personal’ interests.”) Thus, where such

demands are accompanied by threats and intimidation, or retribution for

resistance, the NPA’s activities may, in certain circumstances, support finding a well-founded fear of persecution on account of a political opinion.

Where threats of harm actually are carried out, reasons for the NPA’s

actions demand even closer scrutiny. In Matter of S-P-, supra, we found that

the level of harm is a significant factor which may be indicative of the persecutor’s motive. See supra note 4. As the extreme nature of the threats or the

severity of the methods used to enforce extortion demands increase, so

increases the likelihood that a victim can establish that she qualifies for asylum. When an applicant has manifested political opposition and experienced

a significant level of harm, the presence of another nonpolitical motive for a

group’s actions does not extinguish, but supports, her claim. See Singh v.

Ilchert, supra, at 379 n.1; see also Desir v. Ilchert, supra, at 729; BolanosHernandez v. INS, supra, at 1284-88.

The majority concedes that the respondent suffered an escalating level of

abuse, which culminated in her being cut with a knife and threatened with

death after she expressed opposition to the NPA and its activities and resisted

their demands. Matter of T-M-B-, supra. In fact, the majority describes the

harm experienced by the respondent as “reprehensible,” yet finds that such

harm was not, even in part, on account of the respondent’s actual or imputed

political opinion. Id. at 6. Without providing a reasoned explanation for their

determination, other than to look for support to the Bureau of Democracy,

Human Rights and Labor, U.S. Dep’t of State, The Philippines - Profile of

Asylum Claims & Country Conditions (June 1995) [hereinafter Profile], the

majority concludes that the NPA’s actions constituted no more than a criminal offense motivated exclusively by nonpolitical aims.

In the case of an organization such as the NPA, harm or threats of harm

directed at an individual who specifically opposes their ideology and resists

their demands under the circumstances related here, cannot simply be

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dismissed as enforcement of punishment for having resisted “mere extortion.” I find it difficult to conclude that an avowedly political organization

with a political agenda can be said to so surgically differentiate its motives

and actions.

C. Persecution Which is “Extortion Plus”

Mindful of the Boston Tea Party, I note that reasonable minds might differ

over whether “mere extortion” in the form of a “revolutionary tax,” standing

alone, is or is not a political act, and whether or not resistance to such taxation

could be expected to be perceived as an expression of political opinion. See

Kovac v. INS, 407 F.2d 102, 107 (9th Cir. 1969) (holding that deliberate

imposition of substantial economic harm can support a claim of political persecution); Desir v. Ilchert, supra, at 728. However, we need not resolve those

questions here, as the respondent’s payment of the “revolutionary tax” followed the NPA’s attempt to recruit her to their ranks.

The case before us is an example of what we might call “extortion plus.”

Although the NPA demanded a “tax” and the respondent paid it, the evidence

suggests that something more than the NPA’s desire for the respondent’s

continued payments motivated the threats and harm they imposed. Cf. Aruta

v. INS, supra. The evidence establishes that, in response to the NPA’s efforts

to recruit her, the respondent explicitly stated her political opposition to the

group and her disapproval of their methods and goals. The Ninth Circuit recognizes that forcible recruitment can constitute persecution. See

Maldonado-Cruz v. INS, 883 F.2d 788, 791 (9th Cir. 1989), reversing Matter

of Maldonado-Cruz, 19 I&N Dec. 509 (BIA 1988).5 Such resistance to

recruitment is sufficient to support a well-founded fear of persecution. See

Aguilera-Cota v. INS, supra, at 1379-80 (9th Cir. 1990); Artiga-Turcios v.

INS, 829 F.2d 720, 722-23 (9th Cir. 1987).

Even were we not addressing a case which arises within the jurisdiction of

the Ninth Circuit, our precedent would not foreclose our characterizing either

the respondent’s resistance to recruitment as political or the harm she suffered as being politically motivated. The basis for our conclusion that recruitment or punishment for resisting it cannot constitute persecution is founded

in the principle that sovereign nations have a right to require military service

of their citizens and to impose military discipline. Matter of A-G-, 19 I&N

Dec. 502, 506 (BIA 1987); see also Kaveh-Haghigy v. INS, 783 F.2d 1321

(9th Cir. 1986). This rule was extended to nongovernmental military forces

by the Board in Matter of Maldonado-Cruz, supra.

5 The Board is bound to follow the law of the United States Court of Appeals for the Ninth

Circuit, in which this case arises. See Matter of K-S-, 20 I&N Dec. 715, 719-20 (BIA 1993);

Matter of Anselmo, 20 I&N Dec. 25, 31-32 (BIA 1989); see also NLRB v. Ashkenazy Prop.

Mgmt. Corp., 817 F.2d 74 (9th Cir. 1987).

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The situation in the Philippines is not one involving claims made by soldiers in the context of a civil war, and the NPA is not exerting any sort of justifiable “discipline” over the respondent in threatening and harming her. This

case does not involve military- type recruitment or punishment in the form of

military discipline, but rather political recruitment in which the NPA

demanded that the respondent join them as an expression of her allegiance to

the organization and to help further their political goals. Cf. Matter of

Maldonado-Cruz, supra, at 514-16. In addition, at the time we decided Matter of A-G-, supra, and Matter of Maldonado-Cruz, supra, we had not

decided Matter of S-P-, supra, which expressly recognizes that a persecutor

may harbor a dual motive.

It is reasonable to conclude that an individual’s outspoken resistance to

the NPA’s demands on political grounds would be interpreted by its members as an offensive “belief or characteristic” which the group “seek[s] to

overcome through punishment of some sort.” Matter of Mogharrabi, supra,

at 446 (citing Matter of Acosta, supra). It is also reasonable to infer that resistance of this nature provoked the NPA to resort to threats, intimidation, and

actual harm—to overcome the respondent’s expression of an opposing political view, as well as to enforce the group’s demands. Under these circumstances, the Board cannot simply conclude that the group acted solely from a

nonpolitical desire to extort money, and not also with the aim of punishing

the respondent for her political opinion. INS v. Cardoza-Fonseca, 480 U.S.

421, 440 (1987); Matter of S-P-, supra.

II. CONSIDERATIONS OF COUNTRY CONDITIONS

The majority also bases its denial of the respondent’s asylum claim on the

June 1995 Department of State Profile which purports to address relevant

country conditions in the Philippines having a bearing on the plausibility of

the respondent’s claim. Matter of S-M-J-, supra. The Profile recognizes that

the NPA is a communist insurgent organization that resorts to killing and violence to achieve its political goals. Profile, supra, at 4. It recognizes that the

NPA includes a faction called the Alex Broncayo Brigade which is characterized as “an urban guerrilla group.” Id. at 5. The Profile does not deny that the

NPA is able and motivated to engage in persecution on account of the victim’s political opinion. Id. at 3-5. Nevertheless, the majority suggests that,

even were the respondent to face persecution on account of her political opinion, she could avoid future persecution at the hands of the NPA simply by

relocating within her home country. Id. I do not agree.

A. “Country-wide” Persecution and Reasonable Internal Relocation

There is no statutory, constitutional, 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

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asylum-seeker’s country of origin . . . .” Guy Goodwin Gill, The Refugee In

International Law 42 (1983); see also Ignatius, Asylum: Country-Wide Persecution, 21 Nat’l Immigr. Project of the Nat’l Law. Guild, Inc., Immigr.

Newsletter, No. 1 (1993).

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

a refugee to relocate internally, are not as entwined as our prior decisions

may have made it appear. Nor is there a presumption that the absence of affirmative evidence demonstrating that the persecutor operates nationwide

means there is no basis for the victim to have a well-founded fear of persecution. Damaize-Job v. INS, 787 F. 2d 1332, 1336 (9th Cir. 1986); cf. Matter of

R-, 20 I&N Dec. 621, 627 (BIA 1992) (suggesting that the absence of evidence that there is persecution country-wide means that there is not persecution country-wide).

The Handbook makes clear that proof of 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. 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.” See Abdel-Masieh v.

United States INS, 73 F.3d 579, 587 (5th Cir. 1996); see also Singh v. Ilchert,

63 F.3d 1501 (9th Cir. 1995); Matter of H-, 21 I&N Dec. 337 (BIA 1996).

Where there is some basis to conclude that persecution would be confined

to a local area or when the persecutor is a nongovernmental force, consideration must be given to whether that authority has the inclination and ability to

persecute the alien throughout the home country. Matter of H-, supra, at 349

n.6; see also Singh v. Moschorak, 53 F.3d 1031, 1034 (9th Cir. 1995);

Quintanilla-Ticas v. INS, 783 F.2d 955, 957 (9th Cir. 1986) (finding the

applicant ineligible where the danger of persecution was limited to a single

village); Matter of Fuentes, supra. Although the NPA is a nongovernmental

force, the fact that the NPA confronted the respondent only at her store and

not at her place of other employment does not suggest either that the nature of

their interest in her was not political or that it was confined to a local area.

Damaize-Job v. INS, supra.

The standard for determining whether an asylum applicant can relocate to

a zone of safety in the country of persecution is “reasonableness.” As

addressed by the Handbook, supra, para. 91, at 21-22, “for various reasons it

may be unreasonable to expect the asylum-seeker to move internally.”

(Emphasis added.) See also Guy Goodwin Gill, supra. The internal relocation principle has been interpreted as being a limited restriction, applicable to

persons who “can genuinely access domestic protection and for whom the

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reality of protection is meaningful.” J. Hathaway, The Law of Refugee Status

134 (1991). Determinations of “reasonableness” include consideration of

likely financial or logistical barriers to internal relocation, as well as the circumstances which fail to satisfy civil, political, and socioeconomic human

rights norms, or place the refugee in illusory or unpredictable situations. Id.

B. Relevance of the Department of State Country Profile

The statistics cited by the majority—that the NPA boasts a “significant

presence” in only 2 percent of the country’s townships—offers little insight

into the specific threat faced by the respondent. Matter of T-M-B-, supra, at

777.

The June 1995 Profile specifies that it is not the townships, but the individual provinces, extending from north to south throughout the islands, in which

the NPA is known to be operating. Profile, supra, at 4. The Profile expressly

includes Luzon, which includes Manila, a major population center and the

area in which the respondent worked. Id. It also includes Mindanao in the far

south, and provinces in the central section of the archipelago. Id. One of the

only areas in Luzon which the Profile contends is not beset by NPA activity,

for example, is Catanduanes, an island. Id. Napoleon’s exile notwithstanding, I do not consider it “reasonable” to expect the respondent to relocate to a

small, remote island.

Furthermore, that some areas may have a “significant presence” and others a minimal presence does not support a conclusion that the danger to the

respondent can be alleviated by her internal relocation. As noted, the Ninth

Circuit has not required actual acts of persecution nationwide, 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. Although noting that it is “generally possible” for victims of persecution to relocate internally, the Profile recognizes the NPA is capable of persecuting persons with

credible fears of persecution. Profile, supra, at 4. A “general possibility” that,

assuming it was reasonable to do so, the respondent might relocate successfully, is not sufficient to extinguish her well-founded fear under the standard

in INS v. Cardoza-Fonseca, supra.

Thus, the statistical “data” contained in the Profile is relatively unhelpful

in deciding this specific case. In addition, I view aspects of the “information”

contained in the Profile to be unrelated to the purported role of the Department of State in advising on asylum claims, and I find this inappropriate commentary to undermine any deference that we might ordinarily extend to the

Profile.

The country profile may be an appropriate, and even an excellent, resource

for information on political situations in foreign nations. Kazlauskas v. INS,

46 F.3d 902, 906 (9th Cir. 1994). However, in the absence of any evidence

qualifying the Department of State to discern motive or opine regarding the

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NPA’s reasons for harming their victims, I see no basis to accept or rely upon

their conclusions concerning the “on account of ” element in the statutory

definition. See section 101(a)(42) of the Act, 8 U.S.C. § 1101(a)(42) (1994);

cf. Matter of S-M-J-, supra.

I believe this to be an adjudicative or judicial function. Moreover,

although noting that “in most instances,” the NPA is not interested in its victim’s political opinion, the Profile recognizes that the NPA does not target its

victims only because of their wealth. Profile, supra, at 4. In addition, the Profile suggests that the frequency of Philippine asylum seekers claiming to have

had relatives who were killed might raise credibility questions in view of the

decline of NPA activity. Profile, supra, at 3. Again, in my view, the Department of State exceeds its function in providing such “advice” in the Profile.

Even if such a suggestion was within the competency of the Department of

State to make, generalized and unsupported conclusions which appear to be

derived only from review of other applications are entitled to little weight in

determining credibility in any one specific case.

What is more, such a contention happens to be erroneous as a matter of

law, as it is well established that where a number of similarly situated individuals face a similar type of harm, this does not weaken, but rather strengthens, its political character. See Bolanos-Hernandez v. INS, supra; Matter of

Mogharrabi, supra; see also 8 C.F.R. § 208.13(a)(2)(i) (1996) (recognizing

“pattern and practice” evidence as bolstering an individual’s well-founded

fear of persecution). Although a country profile may be a primary resource

for information on “political situations,” such observations do not pertain to

political factors, but to psychological and evidentiary assessments, not necessarily within the expertise of the foreign service. Kazlauskas v. INS, supra.

In sum, I do not believe that the evidence concerning country conditions

contained in the Profile indicates that the NPA is not capable of operating

throughout the archipelago, or that the respondent could avoid further persecution by relocating within the Philippines. Her uncontroverted testimony

concerning the threats and harm she has already experienced constitutes

objective evidence, which directly contradicts the apparent presumption in

the Profile to the contrary. There is no evidence that the reduction in the

NPA’s force or areas of operation (which is indicated by the June 1995 Profile to have begun after the NPA’s peak in 1988), accelerated so dramatically

between 1993, when the actual threats and harm to the respondent occurred,

and today, that the NPA no longer is capable of persecuting the respondent.

Even if the NPA would not pose a threat to the respondent in certain locations, there is no evidence in the record which indicates it would be reasonable to expect her to relocate internally.

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III. CONCLUSION

Therefore, I conclude that the record lacks substantial evidence to find that

the respondent’s fear of persecution from the NPA on account of her political

opinion is not reasonable under the test in INS v. Cardoza-Fonseca, supra, or

that internal relocation would be either feasible or effective. The respondent

declared her political opposition to the NPA directly to them; she refused first

to join the NPA and later to make the payments they demanded. The death

threats and level of physical harm inflicted on her do not support the conclusion that the NPA’s only interest in the respondent was as a source of funds to

support its revolutionary activities. The escalation of abuse following the

respondent’s resistance to their demands establishes that the NPA acted, at

least in part, from a desire to punish the respondent for her open political

opposition and resistance to their organization. Accordingly, I would sustain

the respondent’s appeal and grant her application for asylum.

791