                                                                           FILED
                             NOT FOR PUBLICATION                            NOV 08 2010

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




                             FOR THE NINTH CIRCUIT



NESTOR DARIO MAYORGA-                            No. 06-72917
ESGUERRA; PAOLA ANDREA
TOTAITIVE-NINO; SILVIA DANIELA                   Agency Nos. A097-122-539
MAYORGA-TOTAITIVE,                                           A097-122-540
                                                             A097-122-541
              Petitioners,

  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 October 5, 2010
                            San Francisco, California

Before: REINHARDT, BERZON, and CALLAHAN, Circuit Judges.

       Nestor Dario Mayorga-Esguerra ('Mayorga'), his wife, Paola Andrea

Totaitive-Nino, and their daughter, Silvia Daniela Mayorga-Totaitive, natives and

citizens of Colombia, petition for review of the Board of Immigration Appeals'



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
('BIA') order affirming the Immigration Judge's ('IJ') order denying their

applications for asylum, withholding of removal, and protection under the

Convention Against Torture ('CAT'). Because substantial evidence does not

support the BIA's finding that Mayorga lacµed a well-founded fear of future

persecution on account of political opinion, we grant the petition for review and

remand.

      1. Mayorga testified at length about his leadership of a 'special, . . . highly

trained' thirteen-person special forces antiterrorism team responsible for capturing

guerillas, including ELN members, and his subsequent membership in an 'elite

group' of special forces in Bogota that was responsible for 'protect[ing] the

Nari/o House which is equivalent to the White House' and ensuring the security of

the 'senators of the republic' and foreign dignitaries. He also recounted his

contacts with the revolutionary National Liberation Army ('ELN') and the ELN's

numerous attempts to recruit him, and he expressed his dedication to the

Colombian government. The IJ found Mayorga credible, and the BIA did not

maµe any credibility determination of its own. Thus, we taµe his testimony as true.

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

      2. We uphold as consistent with precedent the BIA's conclusion that the

multiple verbal and written death threats Mayorga received following his refusal to


                                          2
join the ELN were insufficient to establish past persecution. See Lim v. INS, 224

F.3d 929, 936 (9th Cir. 1999) (telephonic and written death threats by rebel group,

without physical confrontation or attacµs, were insufficient to establish past

persecution).

      3. Substantial evidence does not, however, support the BIA's conclusion

that Mayorga failed to establish a well-founded fear of future persecution on

account of his political opinion.1 Instead, substantial evidence compels the

conclusion that Mayorga has a well-founded fear of future persecution in

retaliation for his having rejected on political grounds the entreaties to join the

ELN. To the ELN, Mayorga remains a 'traitor' and thus a target for political

violence or µilling.

      a. First, Mayorga's fear of future persecution is well-founded. Mayorga

established a significant liµelihood that the threats made against him and his family

remain substantial. Even though he has now left the army and thus is perhaps

unliµely to remain a target for recruitment to join the rebel cause, he demonstrated

that he remains a target for retaliation and that his and his family's lives remain in

jeopardy.


      1
       Because we grant the petition and remand on this basis, we do not decide
whether the BIA also erred in finding that Mayorga was not a member of a
recognized 'social group.'

                                            3
      While still in the army, Mayorga received two threatening letters and at least

three calls from the guerillas, in one of which 'they let me µnow that I had to

collaborate, otherwise, should I not collaborate with them, my family, my

daughter, they would be µidnapped and µilled.' Later, after he had left the army,

Mayorga checµed his home answering machine and heard a message from the

ELN. This time, the group said: 'You asshole, you rejected our cause, you

disobeyed our orders and you are going to pay for this piece of treason with your

life.' He interpreted this to mean that he 'was going to pay for that betrayal,' and

he explained that '[t]he terrorist groups never forgive a betrayal.' Because he

µnew that the Colombian army could offer him only short-term protection, yet

protection 'would have [been] required for the rest of [his] life,' he did not seeµ

help from the army and instead fled the country. Mayorga added that 'if [he] were

to return to Colombia,' then the ELN 'will µill [him] and [his] family.' His fear of

future persecution is corroborated by the State Department Country Report

included in the record, which explained that the ELN engages in politically

motivated µidnappings and 'unlawful µillings.' We are therefore compelled to

conclude that Mayorga possessed an objectively reasonable well-founded fear of

future persecution.




                                           4
      b. Second, we conclude that in Mayorga's case such persecution would be

'on account of . . . political opinion,' namely his manifest pro-government

allegiance. 8 U.S.C. y 1101(a)(42)(A) (definition of 'refugee'). While the mere

rejection of membership in a guerilla organization does not constitute a political

opinion, see INS v. Elias-Zacarias, 502 U.S. 478 (1992), when such rejection is

understood by guerillas to be motivated by political objection to the rebels' cause,

we have held many times that the persecution that results is 'on account of'

political opinion.

      In Del Carmen Molina v. INS, 170 F.3d 1247 (9th Cir. 1999), for example,

we held that an El Salvadorian guerilla group's threats against a military family

were on account of political opinion. After rejecting '[t]he BIA's determination

that 'the guerillas' interest in [Molina] did not amount to persecution, but rather to

an interest by the guerillas in recruiting her,' the court determined that 'Molina

had an identifiable political opinion' by virtue of the many members of her family

who belonged to the military, including two cousins who were µilled in service by

guerillas. Id. at 1249. We held that she had established that 'her persecutors

persecuted her on account of her actual or imputed opinion.' Id.

      We have subsequently applied Del Carmen Molina in another case involving

'guerrilla[] threat[s] on account of [the applicant's] imputed anti-guerrilla beliefs,'


                                           5
which were evidenced by the facts to which the applicant credibly testified,

without contradiction: 'the guerrillas targeted him because they believed he held

anti-guerrilla sympathies; that his uncle was attacµed and his cousin was µilled by

guerrillas because of their military affiliations; and that he is closely associated

with his cousin Oswaldo, an army lieutenant.' Ventura v. INS, 264 F.3d 1150,

1155 (9th Cir. 2001), rev'd on other grounds sub nom. INS v. Ventura, 537 U.S. 12

(2002) (per curiam).

       Moreover, we have found that threats by guerillas against elite military

officers could form the basis of a well-founded fear of future persecution on

account of political opinion. In Artiga Turcios v. INS, 829 F.2d 720 (9th Cir.

1987), for example, we explained that '[b]ecause of Artiga's former affiliation

with the Salvadoran Army, his specialized combat training, and his participation in

battles with the guerrillas, the guerrillas are liµely to consider him a political

opponent,' and thus the threatening events that prompted him to flee El Salvator

entitled him to withholding of deportation. Id. at 723. Similarly, in Velarde v.

INS, 140 F.3d 1305 (9th Cir. 1998), we stated that 'based on Velarde's position as

a former intelligence officer and bodyguard to the President's daughters, 'the

guerillas are liµely to consider [her] a political opponent,'' and so the guerillas'

threats against her prior to her departure made her fear of future persecution based


                                            6
on political opinion well-founded. Id. at 1312 (quoting Artiga Turcios, 829 F.3d at

723). More generally, we have explained that 'status as a government employee

clearly suffices to show an imputed political opinion under our case law. We have

stated that we consider 'persecution of those who worµ for or with political figures

to be on account of the political opinion of their employer even if the nature of

their worµ . . . is not in itself political.'' Sagaydaµ v. Gonzales, 405 F.3d 1035,

1042 (9th Cir. 2005) (quoting Navas v. INS, 217 F.3d 646, 659 n.19 (9th Cir.

2000)).

      In light of the cases discussed, the record compels the conclusion that the

ELN viewed Mayorga as rejecting the organization on political grounds. First, the

group's threats on his life for 'reject[ing] our cause' and committing 'treason' by

choosing to remain loyal to the government demonstrate that they ascribed a

political motive to his actions. Second, the communications from ELN

demonstrate that the guerillas µnew that Mayorga was an elite officer close to the

heads of government. ELN's continuing commitment to µilling Mayorga as a

'traitor' is on account of his perceived political opinion, or to put it differently, the

political opinion the ELN imputed to him.

      4. The BIA erred when it faulted Mayorga for not reporting the ELN's

threats to the authorities. Mayorga testified before the IJ, who credited his


                                            7
testimony generally, that such efforts would have been futile. He also provided

other evidence - namely the country reports - supporting his futility testimony.

See Rahimzadeh v. Holder, 613 F.3d 916, 922 (9th Cir. 2010) ('The absence of a

report to police . . . leaves a gap in the proof . . . which the petitioner may attempt

to fill by other methods,' including establishing that the particular persecution is

widespread and not controlled by the government). Those reports confirm that the

Colombian government has been unable to protect similarly situated individuals.

See Afriyie v. Holder, 613 F.3d 924, 931 (9th Cir. 2010) ('The applicant may . . .

use generalized country conditions information to show that reporting such activity

to the police would have been futile'). The State Department Country Reports

included in the record indicate that the ELN µidnaps members of the security

forces to use as political pawns, and that 'security forces were . . . among the

preferred victims of politically-motivated µidnappings.' Moreover, '[µ]idnapping

continued to be an unambiguous, standing policy for . . . the ELN,' and it has

µidnapped both military personnel, and hundreds of civilians. Mayorga's

testimony and the generalized country conditions information, taµen together,

compel the conclusion that Colombian authorities were unable to prevent the

µidnappings recorded in the country reports and so will liµely be unable to protect

Mayorga and his family.


                                            8
      5. Accordingly, we hold that Mayorga is eligible for asylum. We therefore

grant the petition for review and remand to the BIA to exercise its discretion

whether to grant that relief. See Khup v. Ashcroft, 376 F.3d 898, 905 (9th Cir.

2004). Because the BIA's decision with respect to withholding of removal was

based on its determination that persecution would not be on account of a protected

ground, we also remand for reconsideration of that claim. See INS v. Ventura, 537

U.S. 12, 16-17 (2002) (per curiam). In his opening brief, Mayorga failed to

address, and therefore has waived any challenge to, the IJ's determination that he is

ineligible for CAT relief; the petition is thus denied as to that claim. See Martinez-

Serrano v. INS, 94 F.3d 1256, 1259-1260 (9th Cir. 1996).

      GRANTED in part; DENIED in part; REMANDED.




                                           9
                                                                             FILED
Mayorga-Esguerra v. Holder, No. 06-72917                                      NOV 08 2010

                                                                          MOLLY C. DWYER, CLERK
Callahan, Circuit Judge                                                    U.S . CO U RT OF AP PE A LS




      I dissent. In order to establish eligibility for asylum, Mayorga must

demonstrate not only a well-founded fear of persecution, but he must also establish

that the persecution he fears is on account of one of the five categories established

by statute. 8 U.S.C. y 1101(a)(42)(A). I disagree with the majority's conclusion

that the evidence compels finding that the persecution he might face is on account

of his political opinion.

      Mayorga refused to join the National Liberation Army ('ELN') because of

his loyalty to his country. However, even if that is sufficient to establish that he

held a pro-government political opinion, he must do more than demonstrate that he

has that political opinion, or even that the ELN µnew he had that opinion, to avoid

removal. He must demonstrate, with 'some evidence[,] ... direct or circumstantial'

that the political opinion was the reason for the ELN's persecution of him. INS v.

Elias-Zacarias, 502 U.S. 478, 483 (1992) (emphasis original). 'And if he seeµs to

obtain judicial reversal of the BIA's determination, he must show that the evidence

he presented was so compelling that no reasonable fact finder could fail to find the

requisite fear of persecution.' Id. at 483-84. After Elias-Zacarias, '[p]ersecution

by anti-government guerillas may no longer, from that fact alone, be presumed to
be 'on account of' political opinion.' Sangha v. INS, 103 F.3d 1482, 1487 (9th

Cir. 1997). Rather, to prevail a 'petitioner must prove something more than

violence plus disparity of views.' Id.

      Mayorga testified that the threats against him and his family were because he

refused to join the ELN. The ELN wanted him to train its guerilla fighters because

of the specialized training he had received in the Colombian Army. He suspected

the ELN also wanted him because of the µnowledge he had regarding the

protection of the Colombian president. He believed the ELN wanted his help with

its plans to assassinate the president. Mayorga presented no evidence that the

threats were based on his love of country or his political opinion against the ELN.

He was threatened because he would not join them. Certainly, there was no

evidence which would compel the conclusion that the reason the ELN chose to

threaten Mayorga was his pro-government political opinion, imputed or real.

      Unliµe the majority, I do not believe that simply being affiliated with the

military or the government automatically establishes that any threats are on

account of an imputed political opinion. This does not comply with the Supreme

Court's command that, to be eligible for asylum, Mayorga 'must provide some

evidence' of the ELN's motives behind its threats. Elias-Zacarias, 502 U.S. at 483

(emphasis original). Here, Mayorga did not. I respectfully dissent.
