Domingo Rellamas Orobio v. John Ashcroft, Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-2841
DOMINGO RELLAMAS OROBIO,
Petitioner
v.
JOHN ASHCROFT,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
On Petition for Review of a Decision of the
Board of Immigration Appeals
(BIA No. A73-561-144)
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 20, 2003
Before: SCIRICA, Chief Judge, NYGAARD and BECKER, Circuit Judges
(Filed: July 24, 2003)
OPINION OF THE COURT

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1Inasmuch as we are writing only for the parties, we need not set forth the factual and
procedural background of this matter, except as may be helpful to our brief discussion.
2Orobio’s wife and children still live in the Philippines and have not been harmed or
threatened.
2
SCIRICA, Chief Judge.
Petitioner Domingo Rellamas Orobio, a native and citizen of the Philippines,
entered the United States in 1987 as a seaman in transit but overstayed his visa.1 The
Immigration and Naturalization Service (“INS”) initiated deportation proceedings against
him pursuant to former Immigration & Nationality Act § 241(a)(1)(B), 8 U.S.C. §
1251(a)(1)(B) on November 3, 1995. Orobio applied for asylum and withholding of
deportation. In proceedings before the Immigration Judge (“IJ”), Orobio testified that
members of the New People’s Army (“NPA”), a Communist group, approached him and
his father, a businessman, in Manila on two occasions and demanded that they pay a
“revolutionary tax.” They refused to pay. Orobio claimed that he left the Philippines
when he found out that an NPA “hit squad” was looking for him.2
The IJ found Orobio deportable and denied his applications for asylum and
withholding of deportation. In an order issued on June 3, 2002, the Board of Immigration
Appeals (“BIA”) upheld the IJ’s decision. The BIA noted the IJ’s findings of “internal
inconsistencies in [Orobio’s] testimony, and differences between affidavits [he] submitted
to support his request for asylum and his testimony.” (BIA Order, at 1.) It found that
“[t]hese discrepancies bring [Orobio’s] overall credibility into question[.]” Id. at 2. The

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BIA did not, however, base its decision solely, if at all, on this adverse credibility
determination; it also concluded that Orobio failed to meet his burden of proving that he
was persecuted or fears persecution “on account of” his political opinion. Id. at 2.
Orobio has petitioned for review.
We will deny the petition for review. Pursuant to section 208(a) of the
Immigration and Nationality Act, 8 U.S.C. § 1158(a) (West 1999), the Attorney General
may, in his discretion, grant asylum to individuals who are "refugees" within the meaning
of 8 U.S.C. § 1101(a)(42)(A). A "refugee" includes any person who is unable or
unwilling to return to his home country because of persecution or a well-founded fear of
persecution on account of race, religion, nationality, membership in a particular social
group, or political opinion. Id.; Abdille v. Ashcroft, 242 F.3d 477, 482 (3d Cir. 2001).
To be entitled to withholding of removal to a particular country, an applicant must prove
that his “life or freedom would be threatened in that country because of [his] race,
religion, nationality, membership in a particular social group, or political opinion.” 8
U.S.C. § 1231(b)(3).
Under Immigration & Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 483
(1992), we can reverse the BIA’s finding that Orobio did not establish a well-founded
fear of present or future persecution only if the evidence compels a reversal. In addition
to providing the proper standard of review for this petition for review, Elias-Zacharias
also sets forth the basic asylum eligibility principles when an alien attempts to show that

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he was persecuted on account of his political opinion. 502 U.S. at 483. To prevail on his
claim for asylum, Orobio had to show not only that he held an opinion in opposition to the
views of the NPA, but also that the NPA persecuted him because of his political
opposition. Id.
Orobio testified that he opposed the NPA and that he refused to pay the
“revolutionary tax” because he was “against them because they are against the
government and the religion[.]” A.R. 135. However, Orobio’s testimony does not show
that the NPA knew that his refusal to pay the tax was politically-based. Orobio admitted
that he was never involved in political activities. Absent evidence that the NPA knew
that his refusal to pay was politically-based, Orobio cannot show that the NPA persecuted
or will persecute him because of his political opinion, rather than simply because of his
refusal to pay the tax. Elias-Zacarias, 502 U.S. at 483 (alien “must provide some
evidence of [his persecutors’ motive], direct or circumstantial”) (emphasis in original).
Orobio has argued that it was obvious to the NPA that his refusal to pay was based
on his disagreement with their politics, but this argument was rejected by the Supreme
Court in Elias-Zacarias, and must be rejected here. In Elias-Zacarias, a guerilla group
asked the alien to join with them, but the alien refused. The guerillas could reasonably
have believed that the alien’s refusal to join them was politically-based, just as the NPA
could reasonably have believed that Orobio’s refusal to pay the tax was politically-based.
However, the mere fact of the alien’s refusal was insufficient in Elias-Zacarias to show

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that the guerillas believed the refusal was motivated by the alien’s political opinion rather
than by, say, his “fear of combat, a desire to remain with [his] family and friends, a desire
to earn a better living in civilian life[.]” See id. at 482 (“Nor is there any indication ...
that the guerillas ... believed that Elias-Zacarias’ refusal was politically based.”)
(emphasis in original).
Here, similarly, without knowledge that Orobio’s refusal to pay the tax was
politically-based, the NPA could have believed that his refusal was based simply on his
disinclination to pay taxes, a disinclination no doubt shared by many, including those who
are in favor of the NPA or apolitical. The fact that the NPA could reasonably have
believed that Orobio refused to pay the tax because he disagreed with their politics is not
enough to show that it harbored such a belief for purposes of establishing that it
persecuted or will persecute him because of his political opinion. Here, as in Elias-
Zacarias, there was no evidence that the NPA in fact believed that Orobio’s refusal to pay
the “revolutionary tax” was on account of political opinion. See also Lukwago v.
Ashcroft, 329 F.3d 157, 181 (3d Cir. 2003) (certain deliberate acts by alien will establish
well-founded fear of persecution on account of imputed political opinion only if
persecutor attributes political beliefs to alien as result of these acts).
In Borja v. Immigration & Naturalization Serv., 175 F.3d 732 (9th Cir. 1999) (en
banc), the Ninth Circuit held that the NPA’s extortion of the pro-government alien was
not purely economic and would provide a basis for asylum. Id. at 736. Borja, however,

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recognizes that NPA extortion of business people can be purely economic in nature,
depending on the particular circumstances. In Borja, the alien had refused to enlist in the
NPA, which made the NPA agents angry. On a subsequent extortion “visit,” they slashed
her with a knife. Id. at 734-35. The Ninth Circuit explained:
In contrast to the record in Elias-Zacarias, which did not contain any clear
evidence of the guerillas' motive, either direct or circumstantial, Ms. Borja
articulated her political opposition to the NPA as the reason for her refusal
to join. We know that the NPA agents acted in direct response to her
statement of political opposition and revulsion at their methods because
their immediate reaction was to "get mad" and point a gun at her.
Id. at 736. Here, in contrast, the record shows no clear evidence of the guerillas' motive,
either direct or circumstantial.
Orobio’s testimony that an NPA “hit squad” was looking for him presents a closer
question, but again, even assuming the credibility of that assertion, the record shows no
clear evidence of the NPA’s motive for placing him on a “hit list.” Orobio did not, for
example, find himself on such a list only after he both refused to pay the tax and acted as
an effective informant, as the alien did in Mejia v. Ashcroft, 298 F.3d 873, 877-78 (9th
Cir. 2003) (alien’s refusal to pay NPA revolutionary tax together with his successful
actions as confidential informer for Philippine military rendered him prima facie eligible
for asylum). We thus find no basis for disagreement with the BIA.
We will deny the petition for review.

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TO THE CLERK:
Please file the foregoing opinion.
/s/ Anthony J. Scirica
Chief Judge

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