Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-3-2006

Chavarria v. Atty Gen USA
Precedential or Non-Precedential: Precedential

Docket No. 04-1223




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                                    PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT

                 ___________

                 No. 04-1223
                 ___________


            CELSO CHAVARRIA,

                       Petitioner

                       v.

         ALBERTO GONZALEZ,
ATTORNEY GENERAL OF THE UNITED STATES,

                       Respondent

                 ___________


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

                 ___________

            Argued June 30, 2005
 Before: NYGAARD*, SMITH, and FISHER, Circuit Judges.


                    (Filed: May 3, 2006)

Thomas E. Moseley, Esq. (ARGUED)
One Gateway Center, Suite 2600
Newark, NJ 07102
     Counsel for Petitioner

Arthur L. Rabin, Esq. (ARGUED)
Linda S. Wernery, Esq.
Lyle D. Jentzer, Esq.
Julia K. Wilcox, Esq.
William C. Peachey, Esq.
United States Department of Justice
Office of Immigration Litigation
P. O. Box 878
Ben Franklin Station
Washington, DC 20044
       Counsel for Respondent


                       ___________

                OPINION OF THE COURT
                     ___________


*.
  Judge Richard L. Nygaard assumed senior status on July 9,
2005.

                             2
NYGAARD, Circuit Judge.

       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




                               3
       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.1 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


1.
  For more generally regarding the conditions of Guatemala, see
t h e      d a t a b a s e         a v a i l a b l e        a t
http://www.womenwarpeace.org/guatemala/guatemala.htm#d
ocs.

                               4
credible, we will relay the facts as Chavarria testified to them.

Li v. Attorney General of the U.S., 

, 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.2 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


2.
 The IJ found that these “paramilitary types” were “government
people.”

                                5
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.3 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

3.
  Specifically, Chavarria testified that, “[a]nd then after four or
five days, my wife told me that there was car [sic] going around
my house, and to my surprise, this car was the same car that I
had seen before in that place [referring to the attack].” Then, in
response to the question, “[i]n other words, with the two women,
the incident, that was the same car?” Chavarria replied, “Yes,
exactly.” Later in his testimony, Chavarria again testified that
he “saw the vehicle next to my house, and these people looked
familiar to me, and this is when I started to feel fear because I
remembered about the incident that I helped these two women
that time.”

                                6
rights organization, the National Coordination of Widows of

Guatemala (“CONAVIGUA”), which opposes the government.4

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.




4.
 More specifically, CONAVIGUA is a women’s organization
established to discover the fate of those “disappeared” during
the Guatemalan civil war. In addition, the group advocates on
a host of issues, including conscientious objection, and supports
people displaced due to the conflict. The organization gained
notoriety when one of their members, Rigoberta Menchu, won
the Nobel Peace Price in 1992. The organization is apparently
also known as the Commission of Widows.


                               7
       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




                                8
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.




                               9
       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

                                10
persecution on the grounds of expressed political opinion. The

IJ did not make any findings with respect to whether Chavarria

had suffered past persecution or had a well-founded fear of

future persecution.

                          B. The BIA

         The BIA heard Chavarria’s appeal from the IJ’s decision

twice.     In its first order, the BIA agreed with the factual

findings of the IJ but concluded that the “surveillance following

his intervention on the behalf of the human rights members in

1992 was likely on account of an imputed political opinion.”

However, the BIA went on to find that the surveillance, even if

accepted as true, did not rise to the level of past persecution and

therefore could not satisfy the burden of establishing grounds for

asylum.     In addition, it concluded that “the 1993 robbery

incident was not politically motivated as no political statements

were made.” Concluding that Chavarria could not demonstrate

                                11
the reasonable likelihood of future persecution, the BIA

affirmed the IJ’s decision.

       We granted Chavarria’s petition for review after the first

adverse ruling from the BIA because it stated that Chavarria

failed to show a clear probability that his life or freedom would

be threatened “if returned to Haiti.” Chavarria is a citizen of

Guatemala; therefore, pursuant to a stipulation of the parties, we

remanded the matter to the BIA to reconsider Chavarria’s appeal

due to the factual, albeit unintentional, error in its opinion.

       When the BIA took up Chavarria’s appeal for a second

time, it stated that “the substantive reasons for our decision

upholding the Immigration Judge’s denial of asylum still stand.”

After reiterating its view that Chavarria had presented credible

testimony, the BIA recounted the two incidents forming the

basis of Chavarria’s asylum application.




                                12
       After describing the 1992 incident in which Chavarria

aided the two female CONAVIGUA members, the BIA stated,

“[Chavarria] did not directly confront the attackers, nor did his

name become known to any of the people involved.” They

found that Chavarria only “thought [the car next to his house]

might have people in it who were involved in the assault.” The

BIA went on to discuss the “robbery” that took place in

Chavarria’s car, stating that Chavarria was “threatened with

death if he told what happened.”

       On these findings, the BIA determined that Chavarria

could establish an imputed political opinion. However, they

denied him asylum, concluding that he failed to demonstrate

past persecution, because there was never any specific threat of

harm rising to the level of past persecution or any physical harm

related to the imputed opinion. In addition, they summarily

rejected his claim of future persecution.

                               13
          II. Jurisdiction and Standard of Review

       The BIA has appellate jurisdiction over decisions of an

IJ in removal cases initiated by the INS under 8 C.F.R. §

1003.1(b) (2004).5 Our jurisdiction arises under 8 U.S.C. §

1252(a), which provides the exclusive procedural mechanism

for judicial review of all final removal orders. The BIA’s final

order was entered on December 30, 2003, and the petition for

review was timely filed on January 27, 2004, within the required

30 days. See 8 U.S.C. § 1252(b).

       Where, as here, the BIA issues a decision on the merits

and not simply a summary affirmance, we review the BIA’s, and

not the IJ’s, decision. Gao v. Ashcroft, 

, 271 (3d

Cir. 2002). When there are special circumstances, however, we

also look to the decision of the IJ. Id; See also Voci v. Gonzales,

5.
 During the pendency of this case, the INS, the agency initially
in charge of immigration matters, was replaced by the Bureau of
Immigration and Customs Enforcement.

                                14


, 612 (3d Cir. 2005) (clarifying that we should look

to the IJ’s decision where the BIA expressly adopts a portion of

that opinion or defers to it). In reviewing decisions of the BIA,

this Court applies a deferential standard of review. The BIA’s

conclusions regarding evidence of past persecution and the well-

founded fear of persecution are findings of fact, and we

therefore review these conclusions under the deferential

substantial evidence standard. Abdille v. Ashcroft, 

, 483-83 (3d Cir. 2001). So long as the BIA’s decision is

supported by “reasonable, substantial, and probative evidence on

the record considered as a whole,” we will not disturb the BIA’s

disposition of the case. INS v. Elias-Zacarias, 

,

481 (1992). A BIA decision can only be reversed if the

evidence is such that a reasonable factfinder would be

compelled to conclude otherwise. See 

BIA

must substantiate its decisions. We will not accord the BIA

                               15
deference where its “findings and conclusions are based on

inferences or presumptions that are not reasonably grounded in

the record.” Dia v. Ashcroft, 

, 249 (3d Cir. 2003).

                        III. Discussion

       To obtain a grant of asylum, an alien must demonstrate

that he is a “refugee” within the meaning of 8 U.S.C. §

1101(a)(42). To succeed, an alien must show that he is a person

who is unwilling or unable to return to his home country

because of “[past] persecution or well-founded fear of [future]

persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion.”

8 U.S.C. § 1101(a)(42)(A). Thus, an alien may demonstrate

either that he qualifies for asylum because of past persecution or

because he fears future persecution if returned to his native

country. However, the persecution, either past or future, must

be motivated by one of the statutorily protected grounds. 8

                               16
U.S.C. § 1101(a)(42)(A). Included within these grounds, and

relevant to this case, is persecution on account of imputed

political opinion.       We will grant asylum to an otherwise

qualified alien where the motives and perspective of the

persecutor demonstrate that the persecution was on account of

a belief attributed to the alien, even where the alien did not

overtly subscribe to that belief. See Desir v. Ilchert, 

, 728 (9th Cir. 1988). Testimony of an alien, where credible,

may be sufficient to support a claim for asylum under either

category. 

.

         A. De novo review and first instance factfinding

           As an initial matter, Chavarria argues that the BIA

engaged in improper fact-finding under 8 C.F.R. § 1003.1(d)(3),

a regulation governing BIA standards of review.6 We disagree.

6.
     8 C.F.R. § 1003.1(d), in relevant part states:
          (3) Scope of Review
                                                      (continued...)

                                   17
This regulation, enacted in 2002, changed the standard of review

the BIA exercises over an IJ’s findings of fact from de novo

review to clearly erroneous review. 8 C.F.R. § 1003.1(d)(3)(i).




6.
     (...continued)
                  (i) The Board will not engage in de novo review
                  of findings of fact determined by an immigration
                  judge. Facts determined by the immigration
                  judge, including findings as to the credibility of
                  testimony, shall be reviewed only to determine
                  whether the findings of the immigration judge are
                  clearly erroneous.


                                  18
           8 C.F.R. § 1003.3(f)7 states that “[a]ll cases and motions

pending on September 25, 2002, shall be adjudicated according

to the rules in effect on or after that date, except that §

1003.1(d)(3)(i) shall not apply to appeals filed before September

25, 2002.” Thus, any case in which an appeal was filed prior to

September 25, 2002 is not subject to the new standard of review

set forth in 8 C.F.R. 1003.1(d)(3)(i). Accordingly, for these

cases the BIA must engage in de novo review of all factual


7.
     In its entirety, 8 C.F.R. 1003.3(f) states:
           (f) Application on effective date. All cases and motions
           pending on September 25, 2002, shall be adjudicated
           according to the rules in effect on or after that date,
           except that § 1003.1(d)(3)(i) shall not apply to appeals
           filed before September 25, 2002. A party to an appeal or
           motion pending on August 26, 2002, may, until
           September 25, 2002, or the expiration of any briefing
           schedule set by the Board, whichever is later, submit a
           brief or statement limited to explaining why the appeal or
           motion does or does not meet the criteria for three-
           member review under § 1003.1(e)(6).


                                    19
findings of the IJ and is free to accept or disregard the IJ’s

factual findings in any given matter. See Abdulai v. Ashcroft,

, 549 n.2 n(3d Cir. 2001).          Since Chavarria

instituted his appeal prior to September 25, 2002, the newly-

enacted regulation § 1003.1(d)(3)(i) does not apply to his case.

Instead, the BIA was correct when it engaged in de novo review

of the IJ’s factual findings. De novo review allows the BIA to

engage in factfinding in the first instance when the BIA rejects,

in whole or in part, the IJ’s factual determination. Id.; see also

Wang v. Ashcroft, 

, 349 (3d Cir. 2004) (concluding

that the former de novo standard of review applied, not §

1003.1(d)(3)(i)’s clear error standard, and noting that it was

reviewing the “BIA’s decision and its de novo factfinding rather

than the IJ’s decision and its factfinding”); Balasubramanrim

v. INS, 

, 161 (3d Cir. 1998) (observing that BIA’s

de novo review allows it to “independently assess [the IJ’s]

                               20
determination and make de novo findings”); Ramirez-Alejandre

v. Ashcroft, 

, 864 (9th Cir. 2003) (listing cases

reflecting BIA’s earlier power to engage in fact finding while

conducting its de novo review). Accordingly, the BIA’s fact

finding was not impermissible.

          Chavarria also contends that the BIA failed to adhere to

a second provision, 8 C.F.R. 1003.1(d)(3)(iv), which addresses

BIA factfinding, thereby violating the regulations.8 He argues

that this provision bars the BIA from engaging in fact finding in

the first instance. While we agree that § 1003.3(f) makes this

8.
     In relevant part, the provision states:
           (iv) Except for taking administrative notice of commonly
           known facts such as current events or the contents of
           official documents, the Board will not engage in
           factfinding in the course of deciding appeals. A party
           asserting that the Board cannot properly resolve an
           appeal without further factfinding must file a motion for
           remand. If further factfinding is needed in a particular
           case, the Board may remand the proceeding to the
           immigration judge, or, as appropriate, to the Service.


                                  21
subsection applicable to appeals like Chavarria’s which were

pending before September 25, 2002, we need not determine

whether this provision barred the BIA from making factual

determinations in this appeal. Instead, cognizant that there is

some overlap between the applicable de novo review standard

and the statutory language of § 1003.1(d)(3)(iv), which we

presume precludes factfinding in the first instance, we apply the

“well-settled maxim that specific statutory provisions prevail

over more general provisions . . . .”        In re Combustion

Engineering, Inc., 

, 237 n.49 (3d Cir. 2004). Thus,

§ 1003.3(f)’s general statement that the new rules are applicable

to all pending appeals must yield to the specific exception for

the application of § 1003.1(d)(3)(i), thereby requiring the BIA

to engage in de novo review for appeals pending as of

September 25, 2002.

                      B. Past Persecution

                               22
       Chavarria next claims that the BIA erred when it

determined that his claims did not satisfy the burden of proving

past persecution on account of an imputed political opinion. As

we noted earlier, the requirement that the BIA’s decision be

supported by substantial evidence is not an empty one. Thus, if

no reasonable fact finder could reach the same conclusion as the

BIA based on the record then the finding is not supported by

substantial evidence. See Elias 

. In

determining whether the BIA erred, this court is required to look

at the record as a whole. 

. Here, in

looking at the record, we conclude that the BIA

mischaracterized and understated the nature of the evidence

supporting Chavarria’s claims such that their conclusions are not

supported by substantial evidence. We note with importance

that the BIA accepted Chavarria’s testimony as credible and

again caution the Board in the future to be diligent in accurately

                               23
representing the evidence and testimony put forth by the alien

where that evidence is credible. See Li v. Atty Gen’l of the U.S.,

, 159 (3d Cir. 2005). By mischaracterizing and

understating the evidence in the record, the BIA succeeded in

reaching a conclusion not supported by substantial evidence

such that we are compelled to reach a conclusion to the contrary.

       To establish past persecution, an alien must first show

that he suffered persecution. Lukwago v. Ashcroft, 

, 167-68 (3d Cir. 2003). It is well settled that persecution

does not encompass all forms of unfair, unjust, or even unlawful

treatment. Fatin v. INS, 

, 1240 (3d Cir. 1993).

Instead, we have defined persecution to include “threats to life,

confinement, torture, and economic restrictions so severe that

they constitute a real threat to life or freedom.” 

(quoting Lin v. INS, 

, 244 (3d Cir.

2001). In addition, these threats must be on account of a

                               24
statutorily protected ground, which includes imputed political

opinion, and may be established through credible and persuasive

testimony of the applicant. See 

.

However, we have limited the type of threats constituting

persecution to “only a small category of cases, and only when

the threats are so menacing as to cause significant actual

‘suffering or harm.’” 

(quoting Lim v. INS,

, 936 (9th Cir. 2000). We have further defined

acceptable threats to include only those that are highly imminent

and menacing in nature. 

have refused to extend

asylum protection for threats that, while sinister and credible in

nature, were not highly imminent or concrete or failed to result

in any physical violence or harm to the alien. For example, in

Li we credited Li’s descriptions of being threatened with

sterilization and physical violence. However, we refused to

define these threats as persecution for the purposes of Li’s claim

                               25
because they were not sufficiently imminent or concrete. See 

       We first address whether Chavarria established that he

was persecuted on account of a statutorily protected ground.

Assuming Chavarria’s testimony to be credible, the BIA, in its

first crack at the record, found that the surveillance of Chavarria

was on account of an imputed political opinion. This finding

finds substantial support in the record based on Chavarria’s

testimony that he recognized both the car and the occupants as

the paramilitaries present during the attack on the

CONAVIGUA women. The clear import of this testimony is

that the paramilitaries associated Chavarria with the women

members of CONAVIGUA and imputed their political opinion

to him. However, on remand, the BIA changed its position with

respect to whether the paramilitaries were actually surveilling

Chavarria, stating “the respondent saw a car next to his house

                                26
which he thought might have people in it who were involved in

the assault.” (emphasis added). The BIA also determined that

“[Chavarria’s] name [did not] become known to any of the

people involved in the incident” and also that his involvement

in the incident was anonymous.            Of these three factual

determinations,     the   first   substantially   mischaracterizes

Chavarria’s testimony and the second two find no support from

the record.

       Chavarria testified that after the incident his wife noticed

a car circling their home. When asked to describe this event,

Chavarria stated:

       I saw the vehicle next to my house, and these
       people looked familiar to me, and this is when I
       started to feel fear because I remembered about
       the incident that I helped these two women that
       time. And by, and by this time, I saw in the
       paper, in the newspaper, that these women had
       denounced this, by means of their organization,
       that they belonged to, they denounced these
       people and the car.

                                  27
A diligent reading of this testimony makes it obvious that

Chavarria was being surveilled by the same people involved in

the initial attack. The BIA’s finding that Chavarria only thought

that these were the same people mischaracterizes his testimony

in such a way as to potentially deprive him from establishing

persecution on account of a protected ground.

       Furthermore, we can divine nothing in the record

supporting the BIA’s finding that Chavarria’s name did not

become known to any people involved in the incident. In fact,

we find ample evidence directly contrary to this claim, including

Chavarria’s above quoted testimony. The fact that, according to

Chavarria, the same people involved in the attack were

surveilling Chavarria and his house is ample proof that the

attackers did, indeed, know who Chavarria was and what he did.

Indeed, the BIA seemed to recognize the impact of just such

                               28
evidence in its first opinion, wherein it stated that “the

surveillance following his intervention on the behalf of the

human rights members in 1992 was likely on account of an

imputed political opinion.” Its reversal of its own initial finding

is arbitrary because it lacks any support in the record. We are

compelled by the record, consisting of credible, uncontradicted

testimony, to find that the surveillance was carried out by the

same paramilitaries involved in the attack on account of an

imputed political opinion that Chavarria was associated with

CONAVIGUA.

       Erroneous and unsupportable factual findings, however,

may not require reversal if they were not prejudicial.       Here,

taking the facts as Chavarria testified to them, we agree with the

BIA that the surveillance of Chavarria does not rise to the level

of past persecution. Guided by our recent opinion in Li, the

surveillance, even if considered a threat, was neither highly

                                29
imminent nor menacing enough to rise to the level of

persecution.

       The BIA then proceeded to address the more troubling

threat made to Chavarria. While calling it a “frightening crime,”

the BIA found that it was not related in any way to the earlier

attack on the CONAVIGUA members. In support of this

conclusion, The BIA characterized the incident this way: “[h]e

was warned not to move for 5 minutes and threatened with death

if he told what happened.” Again, we find that this description

mischaracterizes and understates, in a material way, the nature

of the incident. In his testimony describing the event, Chavarria

stated, “he told me that if we see you again, you’re not going to

even live to tell the story.” Moreover, in a sworn affidavit in the

record, Chavarria further elaborates:

       One afternoon near my house...they drove a car in front
       of my car. Next thing I knew I was in the back seat of
       the car. They had a gun with a knife to my head...one sat

                                30
       in the passenger side of the car, while another sat right
       next to me. They took all the money I had from my
       pockets..The person that was pointing at me, the one by
       the driver’s side took the keys from the car and said some
       words that I will never forget, “We are going to leave
       you alone today, but if we ever catch you again you
       won’t live to talk about it.”


The statement actually given by Chavarria in his testimony,

fairly taken with the rest of the record, differs starkly with the

BIA’s characterization and does not lead to the conclusion that

the incident was entirely random and unrelated. Rather, it

suggests, quite unequivocally, that the robbery was an attempt

to suppress information the attackers knew Chavarria had about

the CONAVIGUA attack. The statement “[w]e are going to

leave you alone today, but if we ever catch you again you won’t

live to talk about it” is about as clear a death threat as we might

expect attackers to make. Substantial evidence does not support

the BIA’s conclusion that the attackers threatened Chavarria



                                31
with death because they had just robbed him.      Lending more

support to our conclusion, the method of attack mimicked the

attack perpetrated upon the CONAVIGUA members. There, the

attackers tried to make their attack look like a robbery, taking

the money of the women and threatening to kill them. It simply

does not make contextual sense to conclude that this statement

relates to the robbery as it was happening, and only a tortured

reading of it could lead to this conclusion.

       Here, the second threat experienced by Chavarria rises to

the level of past persecution because it was both highly

imminent, concrete and menacing and Chavarria suffered harm

from it. In addition, the threat was carried out on account of an

imputed political opinion that Chavarria was supportive of the

CONAVIGUA movement. This threat is unlike the threats we

encountered in Li, which were merely verbal and not concrete

because here, the attackers actually robbed Chavarria, pointed

                               32
a gun to his face, and threatened him with death if he told his

story.

         C. Well-Founded Fear of Future Persecution

         To establish a well-founded fear of persecution, an alien

must show that his fear is “subjectively genuine and objectively

reasonable.” An alien, therefore, must “show that he has a

subjective fear of persecution that is supported by objective

evidence that persecution is a reasonable possibility.” Abdille

v. Ashcroft, 

, 496 (3d Cir. 2001). In addition, this

persecution must be on account of a statutorily protected ground

which includes imputed political opinion. 

. While not always the case, an alien may succeed in

demonstrating fear of persecution on account of imputed

political opinion solely by testifying credibly that a specific

political opinion has been imputed to him by a foreign

government. Mulanga v. Ashcroft, 

, 133 n.7 (3d

                                33
Cir. 2003).    A showing of past persecution gives rise to a

rebuttable presumption of a well-founded fear of future

persecution, as long as that fear is related to the past persecution.

8 C.F.R. § 1208.13(b)(1). In addition, while past threats may

not rise to the level of past persecution, they are often quite

indicative of a danger of future persecution. 

,

n.3.

       We have held that an alien may use testimonial,

documentary, or expert evidence to demonstrate either a

subjective or objectively reasonable fear of future persecution.

Lukwago v. INS, 

, 177 (3d Cir. 2003). Moreover,

we recognized that often an alien would be unable to offer

anything more than his testimony in support of his claim that his

fear of persecution is objectively reasonable.           Thus, “an

applicant’s credible, persuasive, and specific testimony may

suffice to establish an objective fear of persecution.” 

Balasubramanrim v. INS, 

, 165 (3d Cir.

1998)). The offered testimony need not demonstrate that the

persecution would be more likely than not, or even probable.

Instead, we only require that the evidence demonstrate that the

fear is objectively reasonable. For example, applying these

standards in Lukawago, we found that the alien established a

well-founded fear of persecution where he testified credibly that

he feared being killed by the guerilla army from which he

escaped if returned to Uganda. Combined with evidence that

the guerilla army did kill escaped soldiers we held that the alien

had met his burden of proving an objectively reasonable fear of

future persecution. 

Other Circuits are in accord with

our requirement that the objective element need only be

reasonable and may be substantially met by credible testimony.

In Martirosyan, the Court of Appeals for the Ninth Circuit held

that credible testimony, corroborated by articles and press

                               35
reports documenting exactly the fear to which the alien testified,

along with no contrary evidence in the record established an

objectively reasonable fear of future persecution. Martirosyan

v. INS, 

, 910-11 (9th Cir. 2000).

        We think it clear that here Chavarria has established a

well-founded fear of future persecution and that the BIA’s one

sentence dismissal of this claim was both grossly inadequate and

erroneous.9 As an initial matter, Chavarria’s fear, if well-

founded, is clearly on account of an imputed political opinion.

Since we are required to assess the motive and perspective of the

persecutor to establish whether the persecution was or will be on

account of political opinion, we can rely on credible testimony

of the alien, since it would be “patently absurd to expect an

applicant...to produce [] documentary evidence ... because

9.
 In its entirety, the BIA concluded that “[n]or has the respondent
in anyway shown that his anonymous involvement in this
incident might result in harm upon his return to Guatemala.”

                               36
persecutors are hardly likely to provide their victims with

affidavits attesting to their acts of persecution.” 

Here, Chavarria testified that, before the first incident with the

CONAVIGUA women, he was essentially apolitical. As we

noted earlier, he then offered substantial and compelling

testimony that after the incident he was put under surveillance

by the same men who perpetrated the attack on the

CONAVIGUA women. There is no evidence casting any doubt

on this testimony, and we think it clear that the paramilitaries

targeted Chavarria because they ascribed to him an association

with the CONAVIGUA group that, at minimum, could be anti-

government sympathies.10

10.
  Indeed, Chavarria’s testimony is corroborated by the United
States State Department Bureau of Democracy, Human Rights
and Labor’s Country Report entitled Guatemala Country Report
on Human Rights Practices for 1998 which noted, inter alia,
that, “between May and July, CONAVIGUA, an NGO
representing widows of victims of the internal conflict, reported
                                                  (continued...)

                               37
       In an attempt to establish a well-founded fear of future

persecution, Chavarria testified credibly that he subjectively

feared that if forced to return to Guatemala, he would be harmed

or killed. Since it is well settled that credible testimony that an

alien fears persecution if returned to his home country

establishes a subjective and genuine fear of persecution, we

have no trouble accepting Chavarria’s testimony in support of

his claim. See Martirosyan, at 910.

       Lastly, Chavarria’s “credible, direct, and specific”

testimony, corroborated by articles in the record, establishes his

fear that he will be persecuted if returned to Guatemala as

objectively reasonable. Chavarria testified that, based on what

he’d seen happen to the two CONAVIGUA women, combined

10.
  (...continued)
receiving a number of threatening telephone calls, and several
of its members reported having been watched, followed, or
harassed.”


                                38
with the fact that he saw the same men surveilling his house led

him to fear for his life. Moreover, after his attack in the car, he

believed that if he remained in Guatemala, he would be killed.

From the record, it is clear that the Guatemalan government and

paramilitaries attack and threaten human and civil rights groups.

The record also contains direct corroborating evidence that

members of CONAVIGUA have been attacked because of their

affiliation with the group. Even the State Department Report

documents that human rights groups suffer threats and violence

from security forces. The Report goes on, “[a]mong other

human rights activists in rural areas who were victims of

violence during 1996 were ... Lucia Tiu Tum, a member of the

Guatemalan Conference of Widows (Conavigua), who [was]

killed while returning from a wedding in a remote Quiche

village.” Indeed, the fact that this entire asylum claim began

with Chavarria’s help during an attack on two CONAVIGUA

                                39
members offers clear objective evidence that the government

will attack individuals associated with CONAVIGUA. Finally,

there is no evidence in the record to support a contrary

conclusion which, in any event, must rely on substantial

evidence. Here, the BIA’s conclusion that Chavarria cannot

establish a well-founded fear of future persecution is not

supported by substantial evidence. The BIA does not, and likely

could not, articulate any evidence whatsoever for this position.

                        IV. Conclusion

       Because the BIA accepted Chavarria’s testimony as true,

but then proceeded to misstate and ignore certain relevant

aspects of that testimony, its decision that Chavarria’s past

experiences did not rise to the level of past persecution or that

he could not establish a well-founded fear of future persecution

are not substantially supported by the record. We hold that

Chavarria did establish a claim for past persecution and that, in

                               40
addition, he established a well-founded fear of persecution.

Accordingly, we will grant the petition and reverse the BIA’s

opinion.