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Chavarria v. Gonzalez

May 3, 2006


Petition for Review of an Order of the Board of Immigration Appeals No. A70-799-216.

The opinion of the court was delivered by: Nygaard, Circuit Judge.


Argued June 30, 2005

Before: NYGAARD,*fn1 SMITH, and FISHER, Circuit Judges.


Petitioner Celso Chavarria, a native of Guatemala, petitions this court for review of the Board of Immigration and Appeal's ("BIA") denial of his application for asylum and withholding of removal. We find that the BIA applied the correct standard of review under 8 C.F.R. § 1003.1(d)(3)(i). However, because the BIA mischaracterized the nature and degree of the threats Chavarria faced and understated the effect these threats had, its factual findings are not supported by substantial evidence. In addition, the BIA's conclusion that Chavarria is not entitled to asylum or withholding of removal because he failed to establish a well-founded fear of persecution is not substantially supported by the record. We therefore will reverse the BIA's decision and grant the petition for review.

I. Facts and Procedural History

During the second half of the 20th Century, Guatemala experienced a variety of military and civilian governments as well as a thirty-six year guerilla insurgency. This insurgency caused more than 200,000 deaths and disappearances, the majority of which were civilians.*fn2 However, the Government signed an agreement in 1996 at which point the insurgency formally ended. Chavarria's claim for asylum stems from two incidents that occurred in 1992, during the apogee of the insurgency. As we discuss in detail later, the BIA's explanation of these factual incidents differed in material ways from Chavarria's testimony, despite the fact that the BIA and the Immigration Judge ("IJ") accepted Chavarria's testimony as credible. Because Chavarria's testimony has been accepted as credible, we will relay the facts as Chavarria testified to them. Li v. Attorney General of the U.S., 400 F.3d 157, 164 (3d Cir.2005).

At all relevant times, Chavarria was essentially apolitical. He belonged to no political movements, nor did he ascribe particular allegiance to the ruling government. He was also never a member of any anti-government grassroots, political or social groups. The first and primary incident relating to Chavarria's asylum claim occurred while Chavarria was driving through Guatemala City. From his car, he saw two young women being attacked by what he believed were paramilitary forces.*fn3 After parking his car, he began walking toward the altercation but when he saw that the men were pulling the women's clothing off he returned to his car and retrieved some towels. When he returned, the men had withdrawn and he helped the women cover themselves with the towels. Then, at the women's request, he escorted them to safety. When he returned home he told his wife about the incident.

A few days later, Chavarria's wife informed him that there was a car circling their house. Chavarria saw the car and its occupants and recognized them as the same paramilitaries who had assaulted the women.*fn4 Additionally, an article about the incident appeared in the paper. From the article, Chavarria learned that the women were members of a well known human rights organization, the National Coordination of Widows of Guatemala ("CONAVIGUA"), which opposes the government.*fn5 In the article, the women confirmed that they had been beaten, threatened, and stripped. They also stated that a person had come to their aid and covered them. Chavarria's name did not appear in the article. Chavarria testified that after seeing the paramilitary's car parked next to his home and the article in the paper, he was afraid that the paramilitary members would retaliate against him for the assistance he had rendered to the women.

Consequently, Chavarria came to the United States and began an asylum application. He returned to Guatemala, however, when he was unable to get a job and because he was concerned about his ability to support himself and his family. While living again in Guatemala, a second incident occurred. Driving one night, Chavarria's car was cut off by another vehicle. Armed men got out of the vehicle and forced him into the back of his car. They placed a gun to his head and another to his stomach and robbed him. They also threw his keys out into a field and instructed him not to move for five minutes. Before leaving, the men told Chavarria that "if we ever see you again, you're not going to even live to tell the story." Chavarria believed these men attacked him because of his previous aid to the two humanitarian workers and again fled to the United States and pursued his asylum application. Because Chavarria's timely appeal implicates both legal and factual issues, we will briefly recount both the IJ and the BIA opinions.

A. The Immigration Judge

The IJ assumed Chavarria to be credible and therefore accepted the description of the two incidents as we have related them above. Although the IJ found that some of Chavarria's actions were "curious," overall, the IJ determined that Chavarria was telling the truth. Despite this determination, the IJ denied Chavarria's application for asylum because "[Chavarria's] connection with [CONAVIGUA] is so tenuous, so casual, so cursory, that the government was not after him because of his political opinion, but because of some way he in a minor way assisted them." The IJ went on to explain that "casual assistance, as altruistic and admirable as it may have been" did not qualify him for political asylum.

The IJ's determination rested on an analysis of Chavarria's claims for asylum on account of an expressed political opinion rather than an imputed political opinion, stating in part that:

I do not believe the mere act of assistance in a charitable way of a good Samaritan to get somebody off the streets and to clothe them is espousing a political opinion on his part which the government would want to suppress. . . . To consider him, the mere good Samaritan whose casual short, few minute episode assisting these people, would be to expand the concept of political opinion beyond any reasonable bounds.

The IJ also failed to discuss the implications of the attack in Chavarria's car after he returned from his trip to the United States other than to say that the attack "had nothing to do with his political opinion" or any other protected grounds.

Thus, the IJ denied Chavarria's application for asylum and withholding of removal on legal grounds by holding that humanitarian assistance was not sufficient to establish persecution on the grounds of expressed political opinion. The IJ did not make any findings with respect to whether Chavarria ...

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