FRANCISCO HERNANDEZ-PATZON, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 98-70451

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

April 12, 1999 2. , Submitted
April 15, 1999, Filed

NOTICE:  RULES OF THE NINTH CIRCUIT COURT OF APPEALS MAY LIMIT CITATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.

PRIOR HISTORY: On Petition for Review of an Order of the Board of Immigration Appeals. INS No. A72-110-885.

DISPOSITION: PETITION FOR REVIEW GRANTED. Case REMANDED to the BIA.

CORE TERMS: persecution, guerrillas, imputed, well-founded, deportation, posting, rebut, substantial evidence, persecuted, promoted, lesson, asylum, teach, demonstrating, withholding, armed

COUNSEL: For FRANCISCO HERNANDEZ-PATZON, Petitioner: Suzanne B. Friedman, Esq., Attorney at Law, San Francisco, CA.

For IMMIGRATION AND NATURALIZATION SERVICE, Respondent: Regional Counsel, Immigration & Naturalization Service, Laguna Niguel, CA.

For IMMIGRATION AND NATURALIZATION SERVICE, Respondent: Ronald E. LeFevre, Chief Legal Officer, IMMIGRATION & NATURALIZATION SERVICE, San Francisco, CA.

For IMMIGRATION AND NATURALIZATION SERVICE, Respondent: Alison Marie Igoe, Office of Immigration Litigation, U.S. Department of Justice, Mark C. Walters, Ann Varnon Crowley, Attorneys, Linda S. Wernery, Esq., Karen Ann Gunold, Esq., OFFICE OF IMMIGRATION LITIGATION, Washington, DC.

JUDGES: Before: BRUNETTI, LEAVY, and THOMAS, Circuit Judges.

OPINION: MEMORANDUM 1.

Francisco Hernandez-Patzon, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals' ("BIA") decision finding him statutorily ineligible for asylum and withholding of deportation. 3. We have jurisdiction pursuant to 8 U.S.C. § 1105(a), 4. and we grant the petition for review.

We review for substantial evidence the BIA's factual findings underlying its determination that an applicant is ineligible for relief, reversing only if the record would compel a contrary conclusion. See Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997). We will accept as true an applicant's testimony when neither the immigration judge nor the BIA questioned the applicant's credibility. See Prasad v. INS, 47 F.3d 336, 339 (9th Cir. 1995).

An applicant can establish eligibility for asylum by demonstrating past persecution on account of imputed political opinion. See Singh v. Ilchert, 69 F.3d 375, 379 (9th Cir. 1995) (per curiam). An imputed political opinion is a contrary political opinion that the persecutors correctly or incorrectly attribute to the applicant when they target the applicant for persecution. See Sangha, 103 F.3d at 1489-90.

Here, Hernandez-Patzon credibly testified that he worked for a sign company that had contracted with the government to post signs that promoted the government and democracy in Guatemala. Hernandez-Patzon testified that while he was posting such a sign in December 1990, he was confronted by armed members of a guerrilla group who identified themselves as the Armed Organization of the People. The guerrillas immediately ordered Hernandez-Patzon to stop what he was doing and began beating him with their rifles to "teach [Hernandez-Patzon] a lesson." During the attack, the guerrillas threatened to kill Hernandez-Patzon if he continued posting signs for the government. This confrontation lasted approximately fifteen minutes. Before leaving, the guerrillas took Hernandez-Patzon's identification card and papers, presumably so that they could monitor Hernandez-Patzon's whereabouts. Hernandez-Patzon received medical treatment at a hospital for his injuries, which included a laceration to his right arm that was inflicted by a bayonet. Following the attack, Hernandez-Patzon quit his job, moved over one hundred miles from his home to live with his uncle, and left Guatemala in January 1991.

From the undisputed evidence, the BIA concluded that Hernandez-Patzon had not been persecuted on account of either his actual or imputed political opinion. The BIA also concluded that Hernandez-Patzon's fear of future persecution was not well-founded because he failed to establish that he faced a country-wide threat of persecution from the guerrillas. The BIA's findings, however, are not supported by substantial evidence. Specifically, Hernandez-Patzon's credible and uncontradicted testimony established that the guerrillas (1) saw the poster's message; (2) beat him because they though he worked for the government; and (3) wanted to teach him a lesson for posting signs that promoted the government. See Molina v. INS, No. 97-70784, (9th Cir. Mar. 26, 1999); Sangha, 103 F.3d at 1490. Although the INS argues that the guerrillas attacked Hernandez-Patzon for reasons having nothing to do with imputed political opinion, see Sangha, 103 F.3d at 1490-91, the uncontroverted testimonial evidence establishes that Hernandez-Patzon was beaten because the guerrillas though he worked for the government and was promoting its viewpoint. See Molina, No. 97-70784. We therefore conclude that Hernandez-Patzon has established past persecution on account of imputed political opinion. See id.; Singh, 69 F.3d at 379.

Because Hernandez-Patzon has established past persecution, he is presumed to have a well-founded fear of future persecution. See Molina, No. 97-70784, (citing 8 C.F.R. § 208.13(b)(1)(i)). To rebut this presumption, the INS must demonstrate by a preponderance of the evidence that country conditions in Guatemala have changed to such a degree from the time that Hernandez-Patzon was persecuted that his fear of persecution is no longer well-founded. See id.

Because the BIA determined that Hernandez-Patzon did not establish past persecution, it did not address whether the INS had rebutted the presumption of future persecution. Accordingly, we remand for a determination whether the INS can rebut the presumption by demonstrating that changed country conditions in Guatemala, as they apply to Hernandez-Patzon's individual circumstances, rebut the presumption that his fear of future persecution is well-founded.

PETITION FOR REVIEW GRANTED. REMANDED to the BIA for further proceedings.

FOOTNOTES

1. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.

2. The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).  

3. Because Hernandez-Patzon has not challenged the BIA's denial of his request for withholding of deportation, we do not consider this claim here.

4. The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA") repealed 8 U.S.C. § 1105a and replaced it with a new judicial review provision codified at 8 U.S.C. § 1252. See IIRIRA § 306(c)(1), Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), as amended by Act of Oct. 11, 1996, Pub. L. No. 104-302, 110 Stat. 3656. However, because the new review provision does not apply to petitioners whose deportation proceedings commenced before April 1, 1997, this court continues to exercise jurisdiction pursuant to 8 U.S.C. § 1105a. See IIRIRA § 309(c)(1).