Opposition Brief — Perafan Saldarriaga v. Gonzales

8

of deportation need not be issued before Board order is

reviewable).

2. Assuming that jurisdiction exists, the court of

appeals correctly determined that the record in this case

is not “so compelling that no reasonable factfinder could

fail to find the requisite fear of persecution” on the basis

of political opinion. /NS v. Elias-Zacarias, 502 U.S. 478,

484 (1992). In Elias-Zacarias, the Court determined

that an applicant for asylum must establish that he held

a political opinion and that the persecutor’s motive

would be to harm him “because of that political opinion.”

Id. at 483. The Board’s decision here hewed to that

standard, concluding only that petitioners’ evidence was

too speculative, unconvincing, and insufficiently accu-

rate and credible (Pet. App. Al7-A18) to demonstrate a

well-founded fear of persecution on the basis of political

opinion. The court of appeals’ affirmance found only

that the record did not compel the contrary conclusion.

Id. at A8-A12.

Petitioners contend (Pet. 14-22) that there is a divi-

sion in the courts of appeals concerning what constitutes

a political opinion or activity. That argument does not

warrant review, for two reasons. First, petitioners do

not challenge the court of appeals’ alternative ruling

(Pet. App. Al2) that, even if Saldarriaga’s attempt to

cooperate with the DEA amounted to a protected politi-

cal activity or opinion, Saldarriaga failed to establish

that the drug traffickers would persecute him “on ac-

count of” that opinion. 8 U.S.C. 1101(a)(42)(A). Show-

ing that nexus is essential to an asylum claim. See

Elias-Zacarias, 502 U.S. at 482-483. Because resolution

of petitioners’ perceived conflict thus could have no ef-

fect on the outcome of this case, further review is not

warranted. |

9

Second, no such conflict exists in any event. The de-

cisions on which petitioners rely do not reflect any diver-

gence in the legal standards applied by the courts of

appeals to review asylum determinations. They simply

reflect that application of the same legal test to different

facts and circumstances can yield different outcomes. In

De Brenner v. Ashcroft, 388 F.3d 629 (8th Cir. 2004),

and Agbuya v. INS, 241 F.3d 1224 (9th Cir. 2001) (cited

at Pet. 16-17), the courts of ap, eals found aliens to be

eligible for asylum not because those courts applied a

different legal test than the court of appeals did here,

but because each court concluded that the record in the

case before it demonstrated that an alien’s activities

were political given the circumstances of the particular

conflict.

In De Brenner, the Eighth Circuit determined that

written threats by guerrillas showed that they imputed

a political opinion to De Brenner because they “ex-

pressly named [her] as a member and supporter of the

[ruling party], accused her family of supporting the gov-

ernment, and mistakenly singled her out as an actual

worker for the [political party].” 388 F.3d 637. Indeed,

the insurgents had “labeled Ms. De Brenner as a politi-

cal enemy.” /d. at 638. Likewise, in Agbuya, the

court determined that particularized evidence demon-

strated that a guerrilla group viewed Agbuya “as politi-

cally aligned with the mining company and the govern-

ment, and against the [guerrilla group],” 241 F.3d

at 1229, and “as an opponent of Communism,” id. at

1230. Here, petitioners offered no comparable evidence

10

that narcotraffickers imputed any political affiliation to

Saldarriaga.*

3. Petitioners also urge this Court (Pet. 23) to re-

solve a “split among the Circuit Courts of Appeals as to

whether an imputed political opinion may form the basis

of political asylum.” But the court of appeals in this case

did not hold that an imputed political opinion could not

form the basis for an asylum claim, as petitioners con-

cede. See Pet. 24 (“[T]he Fourth Circuit has not explic-

itly stated that an imputed political opinion may not

form the basis for an asylum claim.”). The court held

only that the record in this case did not compel the

Board to conclude that petitioners faced a well-founded

fear of persecution on that basis. Pet. App. A12.

4. Petitioners contend (Pet. 32-35) that the court. of

appeals misapplied the burden of proof by requiring

Saldarriaga to establish that he had a well-founded fear

cution by a preponderance of the evidence.

The law is clear. “The burden of proof is on an appli-

cant to establish her asylum claim.” /n re S-M-J-, 21 1.

& N. Dec. 722, 724 (B.1L.A. 1997); see Elias-Zacarias, 502

U.S. at 483-484. “(I]t is the alien who bears the burden

of proving that he would be subject to, or fears, persecu-

tion.” Jn re Acosta, 19 1. & N. Dec. 211, 215, 222 (B.1.A.

1985), overruled in part on other grounds, /n re Mog-

harrabi, 19 I. & N. Dec. 439 (B.1.A. 1987). The alien’s

“burden of persuasion” refers to the burden of “con-

vine[ing] the trier of fact of the truth of the allegations

* Petitioners’ reliance (Pet. 16-17) on Lukwago v. Ashcroft, 329 F 3d

157 (3d Cir. 2003), to demonstrate a conflict in the circuits on the

definition of political opinion is misplaced because that case did not even

involve an asylum claim based on political opinion. The decision in that

case turned upon the statutory definition of a “particular social group.”

Id. at 170.

11

that form the basis of the claim for asylum or withhold-

ing of deportation.” Acosta, 19 Il. & N. Dec. at 215.

“(T]he party charged with the burden of proof must es-

tablish the truth of his allegations by a preponderance

of the evidence.” /bid. (citations and footnote omitted).

Petitioners’ argument confuses the burden of proof,

which petitioners unquestionably bear, with the legal

standard by which they must prove their case—i.e.,

a well-founded fear of persecution. To establish a well-

founded fear of persecution, an alien must show

that there is a “reasonable possibility” that he will be

persecuted on account of a protected ground. /NS v.

Cardoza-Fonseca, 480 U.S. 421, 440 (1987) (citation

omitted); Mogharrabi, 19 1. & N. Dec. at 445-446 (adopt-

ing a “reasonable person” test). That standard is lower

than the “clear probability” standard governing with-

holding of removal. Cardoza-Fonseca, 480 U.S. at 431.

The Board’s decision, which the court of appeals af-

firmed, recognized that petitioners needed to prove only

a well-founded fear of persecution, Pet. App. Al7, but

concluded that petitioners had failed to make that show-

ing, id. at Al7-A18. In concluding that the record did

not compel a contrary conclusion, the court of appeals

did not alter either the established allocation of burdens

of proof or the legal standard of a “well-founded fear of

persecution” that petitioners are statutorily required to

satisfy, 8.U.S.C. 1101(a)(42)(A). See Pet. App. A6, A8.

Indeed, contrary to petitioners’ argument (Pet. 34), no-

where did either the court of appeals or the Board re-

quire Saldarriaga to establish that it was more likely

than not that he would be persecuted on account of a

political opinion.

12

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT

Solicitor General

PETER D. KEISLER

Assistant Attorney General

DONALD E. KEENER

FRANCIS W. FRASER

Attorneys

DECEMBER 2005

Yn The

Supreme Cont of the United States

APOLINAR PERAFAN SALDARRIAGA, LUZ

VELASQUEZ CARMONA, ADRIANNA MENESES

VELASQUEZ; MAURICIO PERAFAN

VELASQUEZ, Petitioners,

v.

ALBERTO GONZALES, ATTORNEY GENERAL,

Respondent.

Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

REPLY BRIEF OF PETITIONER IN SUPPORT

OF PETITION FOR WRIT OF CERTIORARI

Gary M. Bowman, Counsel of Record

Gary M. Bowman, Attorney at Law

306 Market Street

Roanoke, Virginia 24011

(540) 343-7949

Counsel for Petitioner

(ee

TABLE OF CONTENTS

ee .cccnenepenions l

Reply Statement of the Case ...............ccccccccccceeeeeeeeerves 3

EE

L. REVIEW SHOULD BE GRANTED BY

THIS COURT TO DETERMINE WHETHER

THE COURT OF APPEALS ACTED

WITHOUT JURISDICTION ........0..................5

Il. THERE IS A SPLIT AMONG THE

CIRCUITS AS TO WHETHER A

GOVERNMENT INFORMANT MAY BE

ENTITLED TO POLITICAL ASYLUM ........ 7

Il. THERE IS A SPLIT AMONG THE

CIRCUITS AS TO WHETHER AN

IMPUTED POLITICAL OPINION MAY

FORM THE BASIS OF POLITICAL

ASYLUM IN THE UNITED STATES ............ 8

IV. THE FOURTH CIRCUIT APPLIED THE

BURDEN OF PROOF IN A MANNER

WHICH IS NOT CONSISTENT WITH

fe) 6p yo) 3 dt |. 8) y ) Re 10

i a 2 A ee ll

N

TABLE OF AUTHORITIES

Agbuya v. INS, 241 F.3d 1224 (9th Cir. 2001)........... 9

Briones v. INS, 175 F.3d 727 (9th Cir. 1999) ............ 7

INS v. Cardozo-Fonseca, 480 U.S. 421 (1987)........... 3)

Castrejon-Garcia v. INS, 60 F.3d 135 (9th Cir.

| ERE Ere eRe Me ead ae ee 6

Del Pilar v. United States, 326 F.3d 1154

ao Pe BR RR Ra rahe A A ell Sore 6

INS v. Elias-Zacarias, 502 U.S. 478 (1992)............... 7-9

Fadul v. INS, 210 F.3d 374 (7th Cir. 2000)............... 8

Perkovic v. INS, 33 F.3d 615 (6th Cir. 1994)............. 6

IN THE SUPREME COURT OF THE UNITED

STATES

No. 05-266

APOLINAR PERAFAN SALDARRIAGA, ET AL.,

PETITIONERS

Vv.

ALBERTO R. GONZALES, ATTORNEY GENERAL

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

REPLY BRIEF OF PETITIONER IN SUPPORT

OF PETITION FOR WRIT OF CERTIORARI

REPLY STATEMENT OF THE CASE

The Solicitor General has materially

misstated the facts of this case. The Solicitor

General casts the facts to convey the misimpression

that Mr. Perafan came to the United States and was

left here without immigration status as a proximate

result of the actions of Javier Cruz. This is not

correct; Mr. Perafan was brought to the United

States and abandoned here by the Drug

Enfurcement Administration (DEA).

The DEA obtained a visa for Mr. Perafa™ and

his wife to come to the United States because the

DEA asked Cruz, before it closed the DEA

undercover operation in Colombia which Cruz ran,

who would be in danger if they were left in

Colombia. Cruz identified the Perafans. The DEA

agents obtained visas for the Perafans because they

feared that the narcotraffickers would retaliate

against Mr. Perafan on account of their mistaken

belief that he knowingly worked with the DEA's

money laundering operation and provided

intelligence to the United States government about

narcotraffickers/insurgents. (App. 28-29).!

The Solicitor General is incorrect in his

assertion that "Cruz fired Saldarriaga in a labor

dispute." Once Mr. Perafan arrived in the United

States, the DEA subsidized the operation of Cruz's

restaurant, which was used as an undercover

location by the DEA. The DEA fell out with Cruz,

and Cruz fled from Roanoke to Miami, and then back

to Colombia, to evade arrest. When Cruz left, the

restaurant closed. When The Roanoke Times

published the fact that Cruz was an undercover

operative of the DEA, Mr. Perafan went to the DEA

to see if he could receive assistance with his visa, but

the DEA was not willing to help him because he did

1 References to the appendix refer to the appendix

of the petition for writ of certiorari, which contains

all of the opinions below.

not have any useful information about Cruz's illegal

activity (App. 29-30).

The Solicitor General argues that the DEA

agent who testified at trial said that Mr. Perafan is

not likely to be harmed if he returned to Colombia,

but on cross-examination the agent admitted that he

did not know that Mr. Perafan's family had been

threatened in Colombia (App. 48-49) and he

acknowledged that Cruz had been killed when he

returned to Colombia (App. 29). Based on this, the

Immigration Judge found that it was “reasonable

and plausible to believe that [Mr. Perafan's]

persecutors targeted him because of his willingness

to associate himself with Cruz and the DEA (App.

49)."

REPLY ARGUMENT

I. REVIEW SHOULD BE GRANTED BY THIS

COURT TO DETERMINE WHETHER THE

COURT OF APPEALS ACTED WITHOUT

JURISCTION.

The Solicitor General argues that the Fourth

Circuit acted without jurisdiction by reviewing the

Board of Immigration Appeals’ decision. The BIA

reversed the immigration judge and remanded the

case to the immigration judge to allow Mr. Perafan

and his family to apply for voluntary departure. The

Solicitor General argued below, and argues here,

that the Board of Immigration's remand order was

not a “final order" that was reviewable by the Court

of Appeals.

The Fourth Circuit considered the

government's jurisdictional argument and ruled that

it would follow the Sixth,? Ninth,’ and Eleventh‘

circuits which have already ruled that a BIA order

denying relief from deportation, but remanding the

case for voluntary departure proceedings, is

immediately appealable.

However, the government still takes the

position that "there is a substantial question

whether the court of appeals had jurisdiction over

petitioner's appeal,” and this Court has not

addressed the issue. This constitutes grounds for

this Court to grant review in this case. Rule 10(c) of

the rules of this Court states that a factor in

granting a petition is that "a court of appeals has

decided an important question of federal law that

has not been, but should be, settled by this Court."

The jurisdictional issue presented here--whether a

BIA order denying relief from deportation, but

remanding the case for voluntary departure

proceedings, is immediately appealable to a court of

1994).

3 Castrejon-Garcia v. INS, 60 F.3d 135, 1361-62

(9th Cir. 1995).

4 Del Pilar v. United States, 326 F.3d 1154, 1156-57

(11th Cir. 2003)(per curiam).

appeals--should be resolved by this Court and is ripe

for review.

Il. THERE IS A SPLIT AMONG THE CIRCUITS

AS TO WHETHER A GOVERNMENT

INFORMANT MAY BE ENTITLED TO

POLITICAL ASYLUM.

The Solicitor General argues that there is no

split among the Circuit because, even though the

Eighth and Ninth Circuits have reached different

results as to what constitutes political opinion under

this Court's decision in INS v. Elias-Zacarias,' all of

the Courts of Appeal have applied the legal test

stated in Elias-Zacarias that an asylum applicant

must show that he held a political opinion and that

he would be persecuted " because of that political

opinion."¢

It is true that all of the Courts of Appeals

have attempted to follow Elias-Zacarias, but the

courts have defined "political" differently and, as a

result, have reached different results in similar

cases. This Court should address what "political"

means in the asylum context.

For example, the Courts of Appeals disagree

as to whether acting as an informant constitutes

political activity. The Ninth Circuit, in Briones v.

5 502 U.S. 478, 484 (1992).

6 fd. at 483.

INS,’ and the Seventh Circuit, in Fadul v. INS,*

have stated that acting as a government informant

may support a claim based on political opinion even

if the informant is not motivated by political belief.

Yet the Fourth Circuit has ruled in this case that an

applicant is not entitled to political asylum unless

"he is motivated by an ideal or conviction of sorts

(App. A9Q),” and takes “action which is grounded in

principle, inspired by altruism, or intended to

advance a cause (App. Al0)." There is a significant

difference between the Circuits as to what

constitutes political opinion.

III. THERE IS A SPLIT AMONG THE

CIRCUITS AS TO WHETHER AN

IMPUTED POLITICAL OPINION MAY

FORM THE BASIS OF POLITICAL

ASYLUM.

A root cause of the different results reached by

the Courts of Appeals in applying the Elias-Zacarias

test is the divergence of opinion as to whether an

imputed political opinion may form the basis of

political asylum.

In Elias-Zacarias, this Court did not address

whether an asylum seeker must actually hold the

political opinion for which he is being persecuted, or

whether the mere belief by the persecutors that the

7 175 F.3d 727 (9th Cir. 1999).

8 210 F.3d 374 (7th Cir. 2000).

victim held an adverse political opinion would be

sufficient. The Court left this question of imputed

political opinion open.

The government's argument here illustrates

the problem. The Fourth Circuit below focused on

Mr. Perfan's subjective motivation: whether he held

a political opinion contrary to the narcotraffickers.

Since the Fourth Circuit defined political so as to

require Mr. Perafan to have a political motivation, it

found that there was no evidence in the record that

he would be persecuted on account of a political

opinion. However, the Ninth Circuit's definition of

political does not require that the applicant display a

political opinion, but focuses on the motivation of the

persecutors. Under the Ninth Circuit's definition of

“political,” the alien in Agbuya v. INS,° who during

the course of her eraployment at a mining company

took actions which the local communist party

considered to be contrary to the interest of laborers,

was entitled to political asylum because the

communists threatened to retaliate against her,

even though there was no evidence that she held a

political opinion adverse to the communists.

There is a difference between the circuits as to

whether Elias-Zacarias requires that the asylum

applicant prove that he actually holds a political

opinion or whether it is enough that the persecutor

impute a political opinion to him. Today, the

difference between the circuits causes different

outcomes in similar cases. If Mr. Perafan lived in

9 241 F.3d 1224 (9% Cir. 2001).

10

one of the states in the Ninth Circuit, he would have

been entitled to asylum because the narcotrafficker/

insurgents believe that he cooperated with the

United States government in what the

narcotrafficker/insurgents consider to be a political

struggle against them and the insurgents will

retaliate against Perafan because of his imputed

cooperation with the United States government.

This Court should grant review to state

whether imputed politica! opinion may be a basis for

political asylum.

IV. THE FOURTH CIRCUIT APPLIED THE

BURDEN OF PROOF IN A MANNER

WHICH IS NOT CONSISTENT WITH THE

OTHER CIRCUITS.

The Solicitor General argues that the BIA did

not require Mr. Perafan “to establish that it was

more likely than not tht he would be persecuted on

account of a political opinion." This is wrong. The

basis of the BIA decision was that "we find that the

respondent has not provided evidence sufficient to

meet his burden of demonstrating that he is more

likely than not" that he would be persecuted (App.

A18-19). By affirming the BIA decision, the Fourth

Circuit has failed to follow this Court's decision in

INS v. Cardozo-Fonseca that “an alien need not

prove that it is more likely than not that he or she

will be persecuted in his or her home country."!°

10 502 U.S. at 487.

11

The Fourth Circuit, along with the First, Second,

Third, Eighth, Eleventh Circuits, and the BIA!! has

now held that an alien must meet a preponderance

of the evidence standard, even though this Court

held otherwise in Cardozo-Fonseca, although the

Seventh, Ninth, and Tenth Circuits,'? have held that

an alien must merely meet a burden of producing

some evidence of persecution on account of an

enumerated ground, so as to establish eligibility for

asylum, and the Attorney General may then exercise

discretion as to whether to grant asylum. Under

that standard, Mr. Perafan would have been entitled

to political asylum.

This Court should grant review to resolve this

split between the circuits.

CONCLUSION

FOR THE REASONS stated herein the

petitioners pray that this Court will grant this

petition and review the decision of the United States

Court of Appeals for the Fourth Circuit.

11 The relevant cases from these courts are cited at

pages 32-33 of the petition for writ of certiorari.

12 The relevant cases from these courts are cited at

page 32-33 of petition for writ of certiorari.