                                                                             FILED
                            NOT FOR PUBLICATION                                JUL 07 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S . CO UR T OF AP PE A LS




                            FOR THE NINTH CIRCUIT

LUZVIMINDA RASOS COLOBONG,                       No. 08-73232
AKA Lydia Palaganas Visperas,
                                                 Agency No. A096-215-991
              Petitioner,

  v.                                             MEMORANDUM *

ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                        Argued and Submitted June 18, 2010
                                Honolulu, Hawaii

Before: B. FLETCHER, PREGERSON, and CLIFTON, Circuit Judges.

       Luzviminda Rasos Colobong ('Colobong'), a native and citizen of the

Philippines, petitions for review of the Board of Immigration Appeals' ('BIA')

order dismissing her appeal from an immigration judge's ('IJ') decision denying

her application for asylum, withholding of removal, and relief under the




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Convention Against Torture ('CAT').1 We have jurisdiction under 8 U.S.C.

y 1252. Because the BIA expressly adopted the IJ's decision, citing Matter of

Burbano, 20 I. & N. Dec. 872 (BIA 1994), but also provided its own review of the

evidence and the law, we review both the IJ and the BIA's decision. See Hosseini

v. Gonzales, 471 F.3d 953, 957 (9th Cir. 2006).

      We review a determination that an applicant has not established eligibility

for asylum under the substantial evidence standard of review. See Singh v. INS,

134 F.3d 962, 966 (9th Cir. 1998). We grant the petition and remand to the BIA.

                   I. Colobong's Entry into the United States

       After her husband was µilled, Colobong arranged for her children to be sent

to the United States. She later learned that another man had accompanied her

children into the United States and assumed her deceased husband's identity.

Fearing for her life, Colobong then arranged for her own entry into the United

States, signed papers using a faµe name, Lydia Visperas, and appeared for an

interview with the U.S. embassy using that name. In 2006, Colobong was

convicted of misuse of a social security number acquired through fraud and of




      1
         An oral screening panel denied Colobong's petition for review to the
extent that it challenged the BIA's discretionary denial of her request for a waiver
under INA y 237(a)(1)(H). We lacµ jurisdiction to review the denial of the waiver.
See 8 U.S.C. y 1252(a)(2)(B)(ii); 8 U.S.C. y 1227(a)(1)(H).
employment verification fraud; both convictions related to her assuming the false

identity of Lydia Visperas.

                                     II. Asylum

      Here, the IJ failed to maµe an express adverse credibility finding. Because

the IJ did not maµe an explicit adverse credibility finding, we deem Colobong

credible. See Kalubi v. Ashcroft, 364 F.3d 1134, 1137 (9th Cir. 2004).2

      Substantial evidence does not support the IJ's conclusion that Colobong

failed to establish that she suffered past persecution on account of a protected

ground. Colobong's husband, a political leader in their village, was found dead in

the street with 64 bullets in his body. After this, Colobong and her children

received death threats. Shortly thereafter, the political leader of a neighboring

village, or 'bangaray,' was µilled. The IJ lacµed substantial evidence to find that

Colobong did not suffer past persecution. See Shah v. INS, 220 F.3d 1062, 1072

(9th Cir. 2000) (finding past persecution where petitioner's husband was µilled and

she and her children were threatened); Khup v. Ashcroft, 376 F.3d 898, 904 (9th

Cir. 2004) (finding threats, combined with anguish suffered as a result of the

µilling of a fellow Burmese preacher, to constitute persecution).

      2
         We apply pre-REAL ID Act standards because Colobong filed her
application for relief on December 4, 2004, which was prior to May 11, 2005, the
effective date of the REAL ID Act. See Sinha v. Holder, 564 F.3d 1015, 1021 n.3
(9th Cir. 2009) (applying pre-REAL ID Act standards because petitioner's asylum
application was filed before May 11, 2005).
      Asylum applicants must provide some evidence, direct or circumstantial,

that the persecutor was or would be motivated to pursue the applicants because of

their actual or imputed status or belief. See INS v. Elias-Zacarias, 502 U.S. 478,

483 (1992).

      In some cases, the factual circumstances alone may provide sufficient
      reason to conclude that acts of persecution were committed on
      account of political opinion . . . . Indeed, this court has held
      persecution to be on account of political opinion where there appears
      to be no other logical reason for the persecution at issue.

Navas v. INS, 217 F.3d 646, 657 (9th Cir. 2000) (internal citation omitted); see

also Silaya v. Muµasey, 524 F.3d 1066, 1070-71 (9th Cir. 2008) ('[E]vidence that

the alleged persecutor acted because of a petitioner's family's political associations

is sufficient to satisfy the motive requirement.' (internal quotation marµs and

alteration omitted)).

      Substantial evidence does not support the IJ's conclusion that Colobong

failed to establish that she suffered past persecution on account of her political

opinion or imputed political opinion. When her husband's great-uncle summoned

him from the house on the night of the murder, armed men in uniform

accompanied the great-uncle. Her husband was shot an extraordinary 64 times.

Three months after her husband's death, the mayor, or 'bangaray captain,' of the

nearest bangaray was also murdered. Because the record compels the conclusion


                                           4
that the same person or persons who µilled Colobong's husband also threatened her

and her children, the record also compels the conclusion that Colobong suffered

past persecution on account of her imputed political opinion -- especially in light

of other record evidence, including the 2003 State Department Human Rights

Country Report for the Philippines.

      The record also compels the conclusion that the persecution Colobong

suffered was motivated by her membership in her politically active immediate

family. See Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986) ('[A]

prototypical example of a 'particular social group' would consist of the immediate

members of a certain family.'). The way in which Colobong's husband was

murdered shows that the µilling was not random, and shortly after the murder

Colobong's family received a letter the neighbors said contained a death threat

against her son Juno. The record maµes it plain that this letter was not the only

death threat the family received in the days following the murder. And as we have

noted, any reasonable factfinder would conclude that the person or persons who

µilled Colobong's husband also threatened the family after the murder.

      'If past persecution is established, a rebuttable presumption of a well-

founded fear arises, 8 C.F.R. y 208.13(b)(1), and the burden shifts to the

government to demonstrate that there has been a fundamental change in


                                          5
circumstances such that the applicant no longer has a well-founded fear.'

Tawadrus v. Ashcroft, 364 F.3d 1099, 1103 (9th Cir. 2004) (internal quotation

marµs omitted). The government may rebut the presumption of a well-founded

fear of persecution by showing 'by a preponderance of the evidence' that there has

been a 'fundamental change in circumstances such that the applicant no longer has

a well-founded fear.' 8 C.F.R. y 1208.13(b)(1)(i) & (ii).

      The IJ found that Colobong's two return trips to the Philippines undermined

her well-founded fear of persecution. Return trips can be considered as one factor,

among others, that rebut the presumption of a threat of persecution. See Loho v.

Muµasey, 531 F.3d 1016, 1017-18 (9th Cir. 2008). The Ninth Circuit has

concluded, however, that return trips to a country of origin do not necessarily rebut

the presumption of a well-founded fear of future persecution. See Boer-Sedano v.

Gonzales, 418 F.3d 1082, 1091 (9th Cir. 2005); Karouni v. Gonzales, 399 F.3d

1163, 1175-76 (9th Cir. 2005).

      In this case, Colobong always intended to permanently flee the Philippines.

Colobong only returned when compelled to do so by the grave illnesses of her

father in 1999, and her mother in 2004. During those visits, Colobong avoided

drawing attention to herself, spent only one or two days at a time in her home

village, and did not tell even her family where she was staying. Thus, Colobong's


                                          6
return trips to the country where she feared persecution to visit her sicµ parents

does not undermine her well-founded fear of future persecution. Further, the

continued presence of Colobong's family members in the Philippines does not

rebut Colobong's well-founded fear, because there is no evidence that her extended

family was similarly situated or subject to similar risµ. See Zhao v. Muµasey, 540

F.3d 1027, 1031 (9th Cir. 2008).

                III. Withholding of Removal and Relief Under CAT

         Because Colobong established that she suffered past persecution, she is

eligible for asylum, we therefore 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). We lacµ jurisdiction over Colobong's CAT claim because she failed to

raise it before the BIA. See Abebe v. Muµasey, 554 F.3d 1203 (9th Cir. 2009).

                                   CONCLUSION

         We grant the petition for review and conclude that Colobong is statutorily

eligible for asylum. We remand to the Attorney General to exercise discretion to

grant Colobong's asylum claim and to consider whether Colobong is eligible for

withholding of removal. We deny Colobong's petition with respect to her CAT

claim.




                                            7
      It is worth noting that the IJ in this case wrote that, if she erred in finding

Colobong ineligible for asylum, she would exercise her discretion to grant

Colobong asylum because of her ties to her son, Juno, and her son-in law, Ole,

both of whom are on active-duty with the U.S. Navy. AR 638.3 We have

previously noted that the way in which an asylum applicant enters the country,

even where the entry involves fraud, 'is worth little if any weight' in the decision

whether to exercise discretion to grant asylum. Mamouzian v. Ashcroft, 390 F.3d

1129, 1138 (9th Cir. 2004). 'When a petitioner who fears deportation to [her]

country of origin uses false documentation or maµes false statements in order to

gain entry to a safe haven, that deception does not detract from but supports [her]

claim of fear of persecution.' Id. (quotation marµs and citation omitted).

PETITION GRANTED AND REMANDED IN PART, DENIED IN PART.



      3
          The IJ's specific words were:
If the Court has erred in finding respondent is not eligible for asylum based on [] a
well-founded fear of persecution if she returns to the Philippines, there is also the
matter of discretion. In this case, it is quite difficult to favorably exercise
discretion where there are multiple frauds. . . . On the other hand, respondent is the
mother of a[n] active-duty Naval officer, Juno Colobong, and the mother-in-law of
Ole Betran, who is also active-duty in the U.S. Navy. Because of her ties to these
two men, the Court would have granted the asylum application as a matter of
discretion despite the fraud. This is also because respondent's son has indicated
that he is in desperate need of childcare for his baby since his wife is also active-
duty Navy and is assigned to a ship.


                                           8
                                                                            FILED
No. 08-73232, Colobong v. Holder                                              JUL 07 2010

                                                                         MOLLY C. DWYER, CLERK
CLIFTON, Circuit Judge, dissenting:                                       U.S . CO UR T OF AP PE A LS




       I respectfully dissent. 'To reverse the BIA finding we must find that the

evidence not only supports that conclusion, but compels it.' INS v. Elias-Zacarias,

502 U.S. 478, 481 n.1 (1992). The majority reverses the finding of the BIA and the

IJ that Colobong failed to establish that she suffered past persecution on account of

a protected ground, but the evidence does not compel the majority's conclusion.

       The brutal murder of Colobong's husband, Simeon Colobong, was tragic. It

is not so clear, though, that it was motivated by an actual or imputed political

opinion. No witnesses identified the assailants and the murder was never solved.

Petitioner suggested that responsibility might lie with the New People's Army or

perhaps with an unnamed high-ranµing government official, but she cited only

rumors and anonymous notes to support her suspicions, nothing compelling or

even very persuasive. Notably, she identified no political opinion held by her

husband that might be expected to put him at risµ and gave no reason why her

husband would be targeted by any particular assailant beyond the fact that Simeon

was an elected official in their village.

       It is even less clear that a political motivation aimed at harming the husband,

especially if based upon his position as an elected village official, might extend to

put Petitioner at risµ. She was not an elected village official. The majority notes
that the political leader of a neighboring village was µilled, but there's no evidence

that other members of that leader's family were harmed. Petitioner described

herself as a social activist, but being president of the local parent teacher

association is hardly compelling proof that she was herself at risµ on account of an

imputed political opinion. Other members of the family continued to live in the

Philippines for many years without incident. The evidence does not compel a

conclusion that Petitioner could not have done the same.

      The involvement of Simeon's uncle Efren Colobong is especially hard to

reconcile with the political motivation alleged by Petitioner. It was Efren who

came to the family's door one night and called for Simeon to go out. A short time

later, Simeon was shot 64 times. Petitioner's brother Guillermo told the family

about the dead body in the street near the family's home. Efren apparently did not

appear. Petitioner testified that she later begged Efren to tell her what happened but

Efren refused to open his mouth. Years later an immigration agent contacted Efren,

by then himself living in Honolulu, and Efren said he barely µnew Petitioner and

her daughter, though Efren's wife contradicted that denial. Out of these unusual

facts it is not hard to infer that Simeon might have been µilled on account of

something other than his political opinion. The evidence simply does not compel a

finding that the motivation for Simeon's murder must have been his political


                                            2
opinion and that Petitioner was at risµ due to some imputed political opinion.

      The majority concludes by noting that the IJ specifically wrote in 2004 that

she would exercise her discretion to grant Petitioner asylum, and that we have

suggested that the way an asylum applicant enters the country, even when the entry

involved fraud, should not weigh against a favorable exercise of discretion. But

that ignores the rest of the story. Petitioner's fraud did not stop once she entered

the United States. She continued to use a false name and social security number

and ran up unpaid debt using that false name, such that by 2007 the same IJ

decided that Petitioner did not deserve a favorable exercise of discretion, in the

context of a request for a waiver of inadmissibility:

      This will be a rare case in which this Court denies a discretionary waiver to
      an applicant whose close relatives are active duty military, but the Court
      simply cannot conclude that the favorable factors outweigh the adverse
      factors. In summary, the misrepresentation waiver will be denied because of
      the extent of immigration fraud, the pattern and extent of unpaid debt in the
      Visperas name, the continuing employment during removal proceedings in
      the name of Lydia Visperas, and because the respondent has returned twice
      to the Philippines of her own accord which suggests that the level of danger
      she faces there is not substantial at this time.

      Liµe many applicants, Petitioner presented a story with some highly

sympathetic aspects, but it was not a one-sided story. More to the point, it was not

a story that compelled a conclusion in Petitioner's favor. I would deny the petition.




                                           3
