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Canales-Vargas v. Gonzales - 441 F.3d 739 (9th Cir. 2006)

Rule:

To be "well-founded," an asylum applicant's fear of persecution must be both subjectively genuine and objectively reasonable. An applicant satisfies the subjective component by credibly testifying that she genuinely fears persecution. An asylum applicant generally satisfies the objective component in one of two ways: either by establishing that she has suffered persecution in the past or by showing that she has a good reason to fear future persecution. While a well-founded fear must be objectively reasonable, it does not require certainty of persecution or even a probability of persecution. Even a 10 percent chance that the applicant will be persecuted in the future is enough to establish a well-founded fear. 

Facts:

Canales-Vargas was a native and citizen of Peru. She first entered the United States in 1986 and stayed until May 1989, when she returned to Peru. She reentered the United States in December 1990. Sometime in April 1990 while she was in Peru, she attended a political rally where she gave a speech denouncing the terrorist group Sendero Luminoso (the "Shining Path"). Beginning two or three weeks after she spoke at the political rally, Canales-Vargas received five or six threatening notes and various threatening phone calls. The last threatening phone call came just before she left Peru in 1990. In addition to threats to harm only her, Canales-Vargas also received a note threatening to place a bomb in her house and kill her family if she failed to leave Peru. According to Canales-Vargas, the letters and phone calls became more aggressive and menacing over time. Originally, the threats told her to "shut up" and not to speak about things she did not know about. Eventually, however, the letters and phone calls threatened her and her family with death if she did not leave Peru. Canales-Vargas applied for suspension of deportation, asylum, and withholding of deportation. Unfortunately, the Immigration Judge (IJ) concluded that she was statutorily ineligible for suspension of deportation because she did not satisfy the seven-year continuous presence requirement for suspension of deportation, when she admitted that she took an eighteen-month-long trip to Peru from May 1989 to December 1990. The IJ also concluded that Canales-Vargas was not entitled to asylum or withholding of deportation because she failed to establish that she suffered past persecution or faced any threat of future persecution if returned to Peru. The BIA affirmed the IJ's decision without opinion. Canales-Vargas sought a petition for review of her final order of removal.

Issue:

Was Canales-Vargas entitled to asylum?

Answer:

Yes

Conclusion:

The Court found that Canales-Vargas established a well-founded fear of future persecution and was therefore eligible for asylum. However, the Court denied the petition for review of the IJ's denial of withholding of deportation, because the evidence was not strong enough to meet the higher standard for that form of relief. The court found that had no trouble concluding that the alien satisfied the low standard for future persecution because the non-confrontational threats that the alien received almost 13 years ago established a 10 percent possibility of future persecution but not the clear probability of it. Without proving a clear probability of persecution, and lacking sufficient evidence of past persecution, the alien was not entitled to withholding of deportation.

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