Saturday, May 10, 2008

Think Gabriela Will Be Demonstrating About This Rape of a Filipina?...Naah!

IMMIGRANT JUSTICE DOT ORG reports that the United States Federal Court of Appeals (Ninth Circuit) has issued a ruling in favor of Ms. Rosalina Silaya in an immigration case, upon a finding that she was kidnapped and raped by the New People's Army (NPA) because her father was a war veteran who fought under Gen. Douglas MacArthur. (And see in the decision where this isn't even the first time the NPA has raped some person because of "an imputed political opinion.") Hey who said they're "just" extortionists bombing cell sites for a living. How else can they get back at those nasty imperialist aggressors, eh? Read the whole decision after this short excerpt:

Silaya v. Mukasey (9th Cir. 5/6/08)

OPINION TROTT, Circuit Judge: Rosalina Silaya ("Rosalina")1 seeks review of the BIA's decision denying her application for asylum, withholding of removal ("withholding"), and protection under the Convention Against Torture ("CAT"). We have jurisdiction pursuant to 8U.S.C. § 1252(a)(1). Because the record compels a finding that Rosalina was subjected to past persecution on account of imputed political opinion, we grant the petition with respect to the asylum claim and remand to the BIA. I BACKGROUND Rosalina is a native and citizen of the Philippines. She entered the United States in May of 1985 as a non-immigrant visitor. When she remained beyond the visa's authorized stay, she was charged with and conceded removability. Subsequently, Rosalina submitted an application for asylum, withholding, and relief under CAT.

Rosalina was born in San Mateo Sur, Philippines. Her father Estaqiou was a World War II veteran who served under General Douglas McArthur. The people of San Mateo Sur knew he was a veteran because it was a small town, and he received a pension from the government.

While she was growing up, Rosalina heard stories about the New People's Army ("NPA"). The NPA "is a violent, revolutionary Communist group which actively opposes the Philippine government" and "has a well-documented history of political violence." Borja v. INS, 175 F.3d 732, 734 (9th Cir. 1999) (en banc). Rosalina was told that the NPA were "really violent and aggressive people and that there are many members in [her] town." Rosalina testified that NPA members came to her house often and asked for food and money. She said her father gave them what they asked for because he knew that the NPA was against the government, and, because he was a World War II veteran, the NPA was against him too.... According to Rosalina's testimony, her father feared that if he didn't give the NPA food or money, they would come back and hurt him and his family. Rosalina said her family was scared of the NPA because her "father supported the government and because he was a military veteran." She said also that when the NPA came to the house and spoke to her father, "[t]hey would always make comments like `when is your daughter [Ros alina] going to grow up?' or `is she going to stay here and live with you in San Mateo Sur?' " Rosalina testified that when she was about fourteen, her older sister Salvacion was kidnaped and missing for almost a month. When Salvacion returned, "she [was] a mess. She ha[d] a lot of bruises, scars, clothes torn apart, half-way naked, people laugh[ed]. My sister was, lost her mind. She's not the same." When questioned as to whether she knew who had taken her sister, Rosalina said, "My father had the idea and he said they are NPA people." The Silayas later found out that Salvacion had been raped.

After Salvacion was kidnaped, and when Rosalina was approximately sixteen, Rosalina's father sent her to Manila to live with her sister Candelaria because it was too dangerous for her to stay in the family home. Rosalina believed her father sent her away to protect her from the NPA. She finished high school in Manila and worked in a bakery.

Around Rosalina's twenty-third birthday, she went back to San Mateo Sur to see her parents. When Rosalina's bus arrived in San Mateo Sur, several men from the NPA stopped her and asked her if she was Estaqiou's daughter. She told them she was. The men walked her to her house, telling her "they knew about [her] father." In the middle of the night, the men returned to the house.

Rosalina and her mother hid in the bedroom. The men pushed the door to the house open and asked Estaqiou where Rosalina was. Rosalina heard sounds like people were fighting in the other room and heard the men saying, "I want your daughter." The Silaya family's dog barked at the men until they cut its head off with a sword.

Eventually, the men overpowered Rosalina's father and put a sword to his throat. They came into the bedroom and punched Rosalina's mother, knocking her to the ground. Ros alina said she "heard the men yelling about [her] father being a war veteran." Although Rosalina initially fought the men, one of them hit her, and she lost consciousness.

Rosalina woke up later to find she had been blindfolded and taken away from her home. She was naked, her hands were tied behind her back, and she was hanging upside down by her feet. She could hear the men laughing at her. Over the next three days, the men repeatedly raped her, hit her, yelled at her, and forced her to perform oral sex. They cut her, poured hot thick liquid on her, and burned her, possibly with cigarettes. The men threatened to cut off her head and put her in the fire pit. They left her hanging upside down "so she will learn her lesson." After three days and three nights, the men returned Rosalina to her family home. She testified that the men carried her back home and threw her in the living room, still bound and naked. The next morning, her parents sent her back to Manila. Rosalina later found out she was pregnant as a result of the repeated rapes.

Rosalina was angry and ashamed by her pregnancy. She tried to abort the baby by drinking clorox and taking pills, but her attempts were unsuccessful. On August 29, 1983, she gave birth to her daughter, Maria Analisa. After Candelaria saw Rosalina hitting the baby, she sent the baby to live in San Mateo Sur with Mr. and Mrs. Silaya. Rosalina believes that her parents sent Maria Analisa back to Manila when she was seven to live with Candelaria because they were "still afraid that the NPA soldiers would come back." Rosalina said that although no NPA members approached her in Manila, she was still afraid. Rosalina said she "was fearful all the time. Wherever I went in the Philippines, even in Manila, I was afraid the NPA soldiers would find me and torture me again." Because of this fear, Rosalina took a job as a nanny and came to the United States in 1985.

The Immigration Judge ("IJ") found Rosalina not credible and denied her application for asylum on that ground. In the alternative, he denied her application for asylum because she did not demonstrate a nexus between the mistreatment she suffered and a protected ground. The IJ found also that the social group that Rosalina claimed to be a member of for refugee purposes was too broad. He further found that it was possible for Rosalina to relocate to Manila. He denied also her applications for withholding and CAT protection.

The BIA reversed the adverse credibility finding, but otherwise affirmed the IJ. It found also that the IJ did not commit a due process violation when he denied Rosalina's motion to permit her relatives to testify by telephone.

II STANDARD OF REVIEW We review findings of fact for substantial evidence. Li v. Ashcroft, 356 F.3d 1153, 1157 (9th Cir. 2004) (en banc). To reverse the BIA's finding that Rosalina did not demonstrate a nexus between the harm she suffered and a protected ground, the evidence must "not only support[ ] that conclusion, but compel[ ] it." INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). Denial of relief under CAT is reviewed for substantial evidence. Bellout v. Ashcroft, 363 F.3d 975, 979 (9th Cir. 2004).

III DISCUSSION A. Past Persecution To be eligible for asylum, Rosalina must show that she is unwilling or unable to return to her country of origin "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." 8U.S.C. § 1101(a) (42)(A). "Once eligibility is established, it is within the Attorney General's discretion to grant asylum." Lopez-Galarza v. INS, 99 F.3d 954, 958 (9th Cir. 1996).

As a preliminary matter, the rape and physical abuse inflicted on Rosalina support a finding of past persecution under 8U.S.C. § 1101(a)(42)(A). See id. at 959. Consequently, the issue before us is whether the record compels a conclusion that the NPA subjected Rosalina to past persecution on account of a protected ground. We hold that the record compels a conclusion that Rosalina was persecuted on account of an imputed political opinion.

[1] "An imputed political opinion is a political opinion attributed to the applicant by his persecutors." Sangha v. INS, 103 F.3d 1482, 1489 (9th Cir. 1997). In order to establish imputed political opinion, Rosalina must show that the NPA actually attributed a political opinion to her. Id. "[P]ersecution on account of political opinion [cannot] be inferred merely from acts of random violence by members of a . . . political subdivision against their neighbors who may or may not have divergent religious or political views." Id. at 1487. However, evidence "[t]hat the alleged persecutor acted because of a petitioner's family's political associations is sufficient" to satisfy the motive requirement. Kebede v. Ashcroft, 366 F.3d 808, 812 (9th Cir. 2004) (citing Lopez-Galarza, 99 F.3d at 960). "The 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.' " Borja, 175 F.3d at 735 (internal quotation marks and alteration omitted).

This is not the first time we have considered whether the NPA targeted a victim for rape on account of an imputed political opinion. In Ochave v. INS, 254 F.3d 859, 862 (9th Cir. 2001), the petitioner and her daughter, both Philippine citizens, were raped by members of the NPA while coming home from the market. The petitioner argued that the rape was on account of an imputed political opinion. Id.

[2] In analyzing the petitioner's imputed political opinion claim, we reviewed both her testimony and her application for asylum. Id. at 865. The petitioner testified that: 1) the rape may have been a random act of violence; 2) other people in the area were raped; and 3) she did not know the rapists before the attack. Id. at 863. In light of this testimony, we explained that the only evidence in the record supporting the petitioner's claim that she was persecuted on account of imputed political opinion was her statement in her application for asylum: My father was employed by the government in the year that the rape occurred. The two men who raped my daughter and I were members of the guerrillas who were trying to overthrow the government.

Because my father had a title, `Municipal Coun selor', my family was viewed as being reactionary in the Marxist eyes of the Communist guerrillas.

Id. at 865. Consequently, we concluded that there was no evidence that the rapists knew who petitioner and her daughter were, let alone who petitioner's father was. Id. at 865-66. We came to this conclusion because, among other things: 1) the rapists never identified the petitioner by name, nor did they mention her father or refer to politics, id. at 865; 2) the rape did not occur in a place "that would suggest that the rapists were seeking [the petitioner] and her daughter specifically"-like her home, id. at 866; 3) the NPA raped and harassed a lot of people in the area where the petitioner was raped, id.; and 4) the petitioner admitted that the NPA did not continue to harass her or attempt to communicate with her after the rape, "so as to suggest that this was a purposeful attack with a political motive, rather than a despicable act of unmotivated violence against a stranger," id. We concluded "in order to impute a political opinion to his victim on account of her family's activities, a rapist necessarily must have some idea who the victim is. That crucial fact--which is a logical predicate to [petitioner's] entire claim--is not established anywhere in this record, including her application." Id.

Although the facts in Ochave are markedly similar in many aspects to the facts in the case at bar, there are some key differences that compel a different result. First, unlike in Ochave, the NPA came to Rosalina's house long before the kidnaping and rape and asked her father when she was going to grow up, indicating that they knew who Rosalina was.

Compare Ochave, 254 F.3d at 865. Second, the NPA did not take Rosalina from a public area. Rather, after ascertaining that Estaqiou was her father, they walked her home from the bus stop and then returned to her home that night and kidnaped her, again suggesting that the rapists were seeking Rosalina specifically. Compare id. at 866. Third, unlike in Ochave, the rapists in this case mentioned Rosalina's father and referenced the fact that he was a war veteran, indicating that the NPA knew who Rosalina was, knew who her father was, and chose Rosalina as a victim because of her father's ties to the Philippine government. This is reflected in Rosalina's statements that: 1) NPA members met Rosalina at the bus stop and asked her if her father was Estaqiou; 2) the men walked Rosalina home and told her they knew about her father; and 3) Rosalina heard the men saying that her father was a veteran. Compare id. at 865-66. Finally, unlike in Ochave, Rosalina never conceded that this may have been a random act of violence. Rather, she testified that after repeatedly raping her, the men hung her upside down from a tree "so she will learn her lesson." Compare id. at 863, 866.

[3] Rosalina has demonstrated the facts that we said in Ochave are necessary to prove an imputed political asylum claim--the NPA members knew who she was, knew who her father was, and made comments indicating that Rosalina was chosen as a victim because of her father's ties to the Philip pine government. See also Lopez-Galarza, 99 F.3d at 960 (finding that a rape victim was eligible for asylum because evidence showed that "[h]er family's ties to the Somoza regime were well-known in her community" and she was singled out for persecution because of these ties). We therefore conclude that there is substantial evidence that compels a conclusion that Rosalina was persecuted on account of an imputed political opinion and is thus eligible for asylum.

B. Future Persecution [4] Because Rosalina suffered past persecution, she is entitled to a presumption of future persecution. 8 C.F.R. § 1208.13(b)(1); Borja, 175 F.3d at 737-38; see also INS v. Ventura, 537 U.S. 12, 17-18 (2002). On remand, the government may rebut this presumption if it can show "by a preponderance of the evidence that conditions in the Philippines have changed to such an extent that [Rosalina] no longer has a well-founded fear that she would be persecuted, should she return there." Borja, 175 F.3d at 738. The BIA must provide an "individualized analysis of how changed conditions will affect [Rosalina's] situation." Id. (internal quotation marks omitted).

C. Humanitarian Asylum [5] Even in the absence of a well-founded fear of future persecution, because Rosalina has established past persecution, the BIA has discretion to grant her humanitarian asylum pursuant to 8 C.F.R. § 1208.13(b)(1)(iii). See Kebede, 366 F.3d at 812 ("Asylum may be granted for humanitarian reasons where a petitioner has suffered atrocious forms of persecution.") (internal quotation marks omitted). Because the BIA did not determine whether Rosalina's past persecution makes her eligible for humanitarian asylum, we remand to the BIA to consider in the first instance whether it wishes to grant her this form of relief.

D. Withholding of Removal [6] The BIA held that Rosalina failed to prove eligibility for asylum, and consequently it assumed that she could not satisfy the higher standard for withholding. Because we hold that Rosalia is statutorily eligible for asylum because she established past persecution, we remand "so that the [BIA] may apply the law to the facts" of her withholding claim. See Mashiri v. Ashcroft, 383 F.3d 1112, 1123 (9th Cir. 2004).

E. Internal Relocation [7] Because Rosalina has demonstrated past persecution, the government bears the burden of proof regarding the reasonableness of relocation within the Philippines. 8 C.F.R. § 1208.13(b)(1)(ii). In this case, it is not clear whether the BIA held the government to its burden or whether it put the burden of proof on Rosalina. Therefore, we remand to the BIA to apply the proper burden of proof and to consider evidence relating to the reasonableness factors listed in 8 C.F.R. § 1208.13(b)(3).

F. Relief Under CAT [8] We deny Rosalina's petition for relief under CAT because she has not demonstrated that, more likely than not, she will be tortured at the instigation of, or with the acquiescence of the Philippine government. See Zheng v. Ashcroft, 332 F.3d 1186, 1188 (9th Cir. 2003).

IV CONCLUSION The facts of this case compel a conclusion that members of the NPA kidnaped, raped, and abused Rosalina because her father was a World War II veteran. Because we conclude that the evidence compels a finding that Rosalina was subjected to past persecution on account of imputed political opinion, we grant the petition for review with respect to the asylum claim and remand this case to the BIA to consider future persecution, humanitarian asylum, withholding of removal, and whether internal relocation is reasonable.2 Costs are awarded to Silaya.

PETITION GRANTED in part and DENIED in part.

1 We refer to petitioner and her family members by first name to avoid confusion. 2 In light of this conclusion and the BIA's reversal of the IJ's adverse credibility finding, we need not address Rosalina's plausible claim that the IJ's refusal to let her witnesses testify telephonically constituted a due process violation. However, if the BIA reaches the issue of relocation on remand, it must afford both parties the opportunity to present additional evidence.

For some strange reason, I doubt that Gabriela will be marching on the U.S. Embassy in support of this Filipina, after all Rep. Satur Ocampo (who claims not to be associated with the Nice People's Army anymore) has already belied Ms. Silaya's claims as "unbelievable." That should be enough for Gabriela, who also claim not to be front organizations.


the jester-in-exile said...

ocampo said THAT?

P.I. niya. 'nuff said.

mesiamd said...

USA is clogged with requests for asylum from many countries worldwide. After the Marcos dictatorship, asylum from the Philippines is rarely granted (a lawyer told me.)

Is it true it's easier to get immigrant status by marrying an American penpal instead?

Dave said...

Clarify something please Dean.
Was Ocampo simply denying that his pals raped somebody? Or was he
expressing a belief that Rosalina
should be denied residence in the US? Or what?

I have no problem with "imputed belief". He might. If NPA thought control provides justification for either political asylum or humanitarian relief, then NPA thought control provides grounds for NPA elimination.

But as reported, I am left a bit confused. Please shed a little light on this.

Karl M. Garcia said...

here is what the PDI or per DJB :Philippine Daily Innuendo has about Ocampo's remarks:

In Manila, former member of the Communist Party of the Philippines and now Bayan Muna party-list Rep. Satur Ocampo said Thursday he was puzzled by the case of Silaya.

“That’s a strange story; the NPAs don’t do that,” he said. “I’m not aware of such an incident. It wasn’t publicized, if it happened at all.”

Ocampo said he wondered why Silaya did not bring the case to a Philippine court after it happened, and waited for 26 years to bring it up.

“That’s very suspicious. She could have raised the case here at the time; there was a mechanism for such cases,” he said"

Anyways, the appeals court, already granted her asylum.(Buti naman)

"An immigration judge had ruled her case did not fit the asylum parameters, but the appeals court disagreed, saying “the facts of this case compel a conclusion that members of the NPA kidnapped, raped and abused Rosalina because her father was a World War II veteran.”

DJB Rizalist said...

thanks karl,
I read that in the paper but couldn't find the link. saved me the trouble.
(also for dave.)

Dave said...

Thanks fellows.

Teresita said...

mesiamd: Is it true it's easier to get immigrant status by marrying an American penpal instead?

The American has to actually go to Manila and fill out paperwork in the Embassy, and the girl gets interviewed there. Americans can't just order in a Filipina like pizza. And then two years later they better still be married when they go to the follow-up interview at Homeland Security.

blackshama said...

Ms Silaya's case is rape in war. Satur Ocampo is in ideological delusion. Whether it is the AFP, US Military, The Red Army, PLA, or the NPA, Tamil Tigers, Nazis etc combatants have been known to rape.

The so called eternal partylist "Nationalists" never uttered a word when the Chinese occupied one of our islands.

Karl M. Garcia said...


You are welcome!

cathy said...

This is in response to the commenter asking about US cit marrying penpal.

Either the American marries the penpal in the Phils. and petition her as a wife which takes longer or petition her as a fiancee.

For the fiancee visa, the US cit should show pictures of their meetings, their correspondences and other evidences of the relationship .

The fiancee visa is good only for a number of days and allows the visaholder to marry the sponsor only.

She would not be able to adjust status in the US in case the marriage did not push thru and marry another US cit.

cathy said...

I read the article again to find out what year she arrived in the US.
It was 1985. I was looking for the year when she filed for application for adjustment of status i.e. from tourist to immigrant but I could not find the information.

Because if she did file in 1985 or a year after, this case is taking too long for decision.

Before 1990's, most of the Filipino immigration lawyers (one such lawyer is now in the Philippines who claimed he was working for the statehood of Phils. ) used asylum as a reason for application for immigrant visa for Filipinos who have no other way to get the green card because no companies could sponsor them for working visa. Visas for domestic helps take long years for approval and convenience marriage is not possible because the person may be married.

After most of the asylees during Marcos went back to the Philippines, the "Marcos government" can no longer be used as a basis for persecution due to political opinion. The lawyers used NPAs as the basis for asylum request.

There was a time in SF when a request for the background of NPA in the Philippines was posted in a forum. It was meant to find out what this organization is about and why it is being used for political asylum.

Now, with the strict immigration laws, political asylum request is only applicable for people coming from countries where there is political turmoil. Only a clueless immigration lawyer would use this to apply for immigrant visa for his Filipino client.

Re: Ocampo's comment that the story is unbelievable... does he know why many of farmers or relatives of farmers come to the cities because of abuses of the NPAs? Does he know all of them? Does he keep track of their activities?

mesiamd said...

Cathy & Teresita:

Thank you for your explanations. I asked the question because the woman had her visa problem since 1985. I thought many Pinoys who got similar problem find ways to adjust their status.

Given that Pinoy asylum cases are rarely favorably adjudicated, she could have been advised better by her lawyer.

Amadeo said...

I agree that she picked a very good lawyer, who not only knew the right reason to pick to suit those times, but also planned that eventually it will be brought before the Ninth Circuit Court, one of the most ah, what can I say, in the appeals system here.

Jaywalker said...

The NPA's raping the "enemy" is not credible maybe if her lieyer errr lawyer used Abu sayaf instead it probably will fly without a doubt, lol.

The rape and sadistic behavior is typical of Abu sayaf's MO and they do rape their kidnap victims.

I tend to agree with the other posters that asylum is the last resort in adjusting immigrant status in the US and heard of ridiculous unbelievable tall tales but this one tops them all.