Werner Montenegro; Aleida Perez v. JOHN ASHCROFT, Attorney General of the United States

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-1904
WERNER MONTENEGRO;
ALEIDA PEREZ,
Petitioners
v.
JOHN ASHCROFT,
Attorney General of the United States,
Respondent
On Petition for Review of an Order of the
Board of Immigration Appeals
(BIA Nos. A73 033 367 & A73 033 366)
Argued January 13, 2003
Before: SCIRICA, Chief Judge*, BARRY and SMITH, Circuit Judges
(Filed: May 16, 2003 )
REGIS FERNANDEZ, ESQUIRE (ARGUED)
744 Broad Street, Suite 1807
Newark, New Jersey 07102
Attorney for Petitioners
*Judge Scirica began his term as Chief Judge on May 4, 2003.

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1This application also includes, derivatively, the application of Montenegro’s wife,
Aleida Perez, and their son, Jose Montenegro.
2
ALISON R. DRUCKER, ESQUIRE (ARGUED)
DONALD E. KEENER, ESQUIRE
MARK C. WALTERS, ESQUIRE
MICHAEL P. LINDEMANN, ESQUIRE
WILLIAM C. MINICK, ESQUIRE
United States Department of Justice
Office of Immigration Litigation
P.O. Box 878, Ben Franklin Station
Washington, D.C. 20044
Attorneys for Respondent
OPINION OF THE COURT
SCIRICA, Chief Judge.
This appeal concerns an application for asylum by a Guatemalan refugee and his
family. The Immigration Judge granted the application but the Board of Immigration
Appeals reversed.
I.
The factual background of this case derives primarily from the testimony of
petitioner Werner Montenegro and his son, Jose Montenegro.1 Over the course of three
hearings before the Immigration Judge, the two men testified in Spanish. The transcript
subsequently was translated into English. Because of a flawed translation, the transcript

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3
reads imprecisely and awkwardly in places, but Immigration Judge Alberto J. Riefkohl,
who is fluent in Spanish, found the men’s testimony to be credible and persuasive.
Werner Montenegro was born in Guatemala on July 26, 1951. He testified that in
1982, he started working as an agricultural internal auditor at a quasi-public wheat
growers association. During this time, Montenegro and others organized a labor union.
Management, headed by a man named Carlos Pac, opposed the union.
The labor dispute evolved into a court case, in which the union prevailed. After
recounting these labor problems, the IJ stated that “[u]p to [this] point, the analysis of
[Montenegro’s] problems seemed to be strictly labor-related, and if they had ended right
there, in my opinion, Mr. Montenegro would not have a claim rising to the level of
asylum.”
But Montenegro’s problems moved beyond the court battle over the labor dispute.
As the IJ found, “Mr. Montenegro claims, and has submitted some documents in support
of that, he started receiving threats and phone calls as to his initiatives in forming that
particular labor group.” Montenegro testified that, following the union’s victory in court,
the Guatemalan government removed the presiding judge, forced a settlement, and re-
installed the prior management.
Following the government’s action, Montenegro experienced subsequent
“reprisals” against him and his family. As the labor negotiations continued, the reprisals
included threatening phone calls from unknown individuals. Montenegro also was

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2This portion of Montenegro’s testimony exemplifies the transcript’s imprecision. As
Montenegro testified, “[W]hen we were traveling to have the meeting with the minister of
labor, and we arrived at the office of the labor minister, the (indiscernible) was there
(indiscernible). I do not remember the (indiscernible).”
4
threatened physically. He testified that, upon leaving a bus he had taken to a meeting
with a labor minister in Guatemala City, he was accosted by “a group of armed people,
very, very much armed,” who threatened to take “harsh measures” against him if he
continued the labor union effort.2
According to Montenegro’s testimony, the reprisals also touched his family. In
1987, while his wife and daughter, Jessica, were traveling to a place called “Los
Encuentros,” Montenegro testified that “a group of armed people, private, private, armed
people, they detained the whole transport. They threatened my wife and they beat her,
and that, and she should tell me that I should stop being involved in things, because it was
too much.” According to M ontenegro, the beating included a strike to his wife’s mouth
with a rifle butt, which resulted in a cut to her mouth.
In September 1987, Montenegro was fired from his job at the wheat growers’
association. In November 1987, fearful for his family’s safety due to threatening phone
calls and the presence of suspicious cars constantly near his home, Montenegro and his
family fled their Quetzaltenango home in the middle of the night, bound for his parents’
home in San Pedro Allampuc. In 1988, Montenegro’s home in Quetzaltenango was
destroyed by an unknown source.

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5
In December 1987, Montenegro was approached by members of the MLN
(National Liberation Movement) Party, who asked him to run for mayor of San Pedro
Allampuc. Montenegro accepted the invitation and became a candidate because he
believed the mayoral position would provide protection to himself and his family. But his
candidacy brought additional threats, and Montenegro withdrew from the campaign.
In 1989, Montenegro fled Guatemala and came to the United States for six months.
During that time, Montenegro’s wife and children moved to Guatemala City and
requested political asylum from the Canadian embassy. But their asylum request was
denied because Montenegro was not residing in Guatemala at the time.
Following this denial, Montenegro returned to Guatemala. He testified that he
returned because “if something would happen, it would happen to [his entire family].”
Montenegro testified that the family hid “deep in houses, deep in addresses” between
1989 and 1991. Then, in 1991, Montenegro testified that his brother-in-law, Mario, was
attacked in a case of mistaken identity: “[T]hey, they attacked him, and I imagine that
they took him for me, and when they saw that that was a different person, that he should
tell me and let me know that why he came to Guatemala, that the best thing could be that I
should stay out of there.” Montenegro testified that Mario needed one month to
recuperate from the attack and that Mario had declined to report the incident to the police
for fear of retaliation.

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3In August 1993, Aleida Perez filed her own application for asylum, in addition to her
derivative application under her husband’s. On October 24, 1994, Jose Montenegro
submitted an independent application for asylum. The Immigration Judge consolidated
both of those cases with Werner Montenegro’s.
6
Following the attack on his brother-in-law, Montenegro testified that he “took a
decision with [his] wife to see how [they] would be able to leave Guatemala whichever
way [they] could.” As he stated, “We could not risk anymore our lives there.” On May 3,
1992, Werner Montenegro entered the United States on a B-2 visa along with his wife,
Aleida Perez, and their fourteen year old son, Jose Montenegro.3 On or about August 30,
1993, Montenegro applied for asylum in the United States. He stated the basis for his
application as the need to escape persecution stemming from his involvement with the
National Wheat Growers Union in Guatemala.
The Immigration and Naturalization Service denied Montenegro’s application for
asylum. Montenegro petitioned for review before an immigration judge. On August 14,
1997, the IJ conducted his third and final hearing as to the request for asylum. In addition
to the testimony of Werner and Jose Montenegro, the IJ considered multiple documents
with regard to the political situation in Guatemala. Among these documents was a State
Department report on labor unions in Guatemala. The report, drafted in August 1996 and
entitled “Guatemala – Profile of Asylum Claims & Country Conditions,” analyzed the
political situation for members of a labor union:
Although the right to organize and bargain collectively is recognized
by the Constitution, and 8 percent of the 3-million-member labor force is

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7
unionized, claims of mistreatment by labor union members and leaders are
frequently received.
During 1995, a number of trade union activists were subjected to
threats, assassination attempts, kidnappings, and physical harm. The
Archbishop’s office reported that unknown assailants killed 2 unionists,
injured 5, and threatened 19, although it was not always clear whether such
violence was union related.
The secretary general of the public employees federation went into
hiding for several weeks after threats on his life. A union organizer was
abducted and beaten in May 1995 and the daughter of a health workers
union officer was severely beaten in September. Also in September, the
secretary of the electrical workers union was kidnapped and held for 18
hours during a strike.
Although many local and international groups charge that unionists
have been particular targets of extrajudicial violence, available evidence
does not establish a pattern of systematic attacks on unionists by security
forces. However, some police and military personnel have intervened at
times to help local employers. Labor violence frequently involves thugs
hired by employers and others opposed to union activities.
The IJ found the State Department report supported the Montenegros’ contention
that the authorities “were not willing or capable of intervening.”
Based on all of this evidence, the IJ found the Montenegros’ testimony to be
credible and granted asylum relief to all three family members:
When we put all of this together, it looks to me that Mr. Montenegro has
been identified by a group that the government is unwilling or unable to
control, and in that sense, I think he deserves the protection that he is
seeking before me. . . . I also should point out that I have observed very,
very carefully both of the male respondents before me. I find their
testimony is sincere and credible. . . . I never observed any attempt to hide
facts . . . . I find that, in essence, the whole story presented makes sense,
it’s corroborated by the State Department to a certain extent, and since I
have found them credible, I think that the appropriate thing is to extend
benefits to the respondents.

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4We have jurisdiction to review the final order of the BIA under 8 U.S.C. § 1252(a)(1).
See Abdulai v. Ashcroft, 239 F.3d 542, 548-49 (3d Cir. 2001).
8
On March 6, 2002, the BIA vacated the IJ’s decision in a two-page opinion.
Although the BIA stated it was conducting a de novo review of the record, it did not make
a credibility finding as to Werner M ontenegro’s testimony. The BIA stated that “[e]ven if
we assume the truth of [Werner Montenegro’s] statements . . . [he] has failed to meet his
burden of proof.” The BIA also declined to address Jose Montenegro’s testimony, which
corroborated his father’s account, and other documentary evidence. Instead, the BIA
succinctly found that none “of the foregoing events rise to the level of persecution” and
that Montenegro “has not demonstrated a well-founded fear of persecution should he
return to Guatemala.” Montenegro filed a timely appeal.4
II.
A.
Montenegro contends he is eligible for asylum under Immigration and Nationality
Act § 208(a) (codified at 8 U.S.C. § 1158(a)). Under the INA, “an alien physically
present in the United States . . . may be granted asylum in the discretion of the Attorney
General if the Attorney General determines that such alien is a refugee within the
meaning of § 1101(a)(42)(A) of this title.” Id. A “refugee” is statutorily defined as an
alien who is unable or unwilling to return to his or her home country “because of
persecution or a well-founded fear of persecution on account of race, religion, nationality,

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9
membership in a particular social group, or political opinion.” 8 U.S.C. §
1101(a)(42)(A).
We begin by addressing the proper standard of review. In Abdulai, we held that, in
most cases, we review only the decisions of the BIA and not those of the IJ. 239 F.3d at
548-49. Unless the BIA expressly adopted or deferred to the IJ’s opinion, we review only
the decision of the BIA. Id. Here, the BIA stated clearly that it was conducting a de novo
review of the record. Therefore, we review the BIA’s decision.
We review the BIA’s factual findings concerning eligibility for asylum under a
“substantial evidence” standard. As the Supreme Court enunciated in INS v. Elias-
Zacarias, 502 U.S. 478 (1992), “[t]o reverse the BIA finding we must find that the
evidence not only supports that conclusion, but compels it.” Id. at 481 n.1 (emphasis in
original); see also Abdille v. Ashcroft, 242 F.3d 477, 483-84 (3d Cir. 2001). The asylum
applicant bears the burden of establishing that he or she falls within this statutory
definition of “refugee.” Balasubramanrim v. INS, 143 F.3d 157, 161 (3d Cir. 1998)
(applicant has burden); 8 C.F.R. § 208.13(a) (“The burden of proof is on the applicant for
asylum to establish that he or she is a refugee as defined in section 101(a)(42) of the
Act.”).

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B.
As we declared in Abdulai, the statutory availability of judicial review “necessarily
contemplates something for us to review.” 239 F.3d at 555. At issue in this appeal is
whether the BIA decision is based on substantial evidence.
After describing Montenegro’s testimony, and citing to the record, the BIA made
the following determination:
We do not find that any of the foregoing events rise to the level of
persecution, even assuming arguendo that the respondent’s union activities
were an expression of his political opinion and aside from whether the
foregoing incidents were perpetrated by persons the Guatemalan
government was unwilling or unable to control. None of the events that the
respondent described as happening to him, even in the aggregate, involved
harm that would amount to persecution. There is no evidence that he was
detained more than one brief time; he was not physically harmed but only
vaguely threatened. The ambiguous telephone calls he received likewise do
not amount to persecution. Regarding his wife’s incident – aside from
whether it was directed at respondent himself – it too fails to rise to the
level of persecution.
As the Supreme Court has declared, we must uphold the BIA’s determination if it
was “supported by reasonable, substantial, and probative evidence on the record
considered as a whole.” Elias-Zacarias, 502 U.S. at 481. To review the BIA’s decision,
therefore, we must be able to find reasonable, substantial, and probative evidence to
support its conclusion.
The BIA’s conclusion here is not supported by the record. The Montenegros’
uncontroverted testimony is that Werner Montenegro, his wife, and his brother-in-law
were attacked and threatened on three separate occasions; the family’s home in

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11
Quetzaltenango was destroyed; and they regularly received threatening phone calls and
witnessed suspicious cars driving by their home. Evidence demonstrating multiple
physical attacks, the destruction of a home, and threatening phone calls and surveillance
qualifies as “persecution” under applicable precedent. In re Acosta, 19 I&N Dec. 211
(B.I.A. 1985).
The attack on Mrs. Montenegro is especially troubling. According to the hearing
transcript, Montenegro’s wife was threatened, attacked, and beaten in the presence of
their young daughter. The threats directly related to Montenegro’s participation in labor
union efforts. And the attack included a blow to Mrs. Montenegro’s mouth with a rifle
butt.
In addition to his own testimony, Montenegro introduced corroborative evidence,
including a United States State Department report and letters from family members in
Guatemala warning him to stay away. And Montenegro’s son, Jose, offered
corroborating testimony. The BIA did not refer to this evidence in its opinion.
The BIA stated that “[n]one of the events that the respondent described as
happening to him, even in the aggregate, involved harm that would amount to
persecution” and described Montenegro’s evidence as “vague.” Id. In defining
persecution, the BIA cited to three cases. Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993)
(persecution does not encompass all unfair or unjust treatment); In re A-E-M, 21 I&N
Dec. 1157, 1159 (B.I.A. 1998) (a single, unattributed, non-violent act is not persecution);

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5See Abovian v. INS, 234 F.3d 492 (9th Cir. 2000). The BIA, in its opinion, rejected
the applicant’s request for asylum because it was “disjointed, incoherent, and
implausible.” Id. at *11-12. The Ninth Circuit vacated the BIA’s decision and remanded
for further proceedings, declaring the BIA’s holding was “solely a matter of conjecture.”
Id. at *15; see Lopez-Reyes v. INS, 79 F.3d 908, 912 (9th Cir. 1996) (stating that
“conjecture is not a substitute for substantial evidence”). The court directed that “the BIA
must provide a reasoned analysis of the legal basis for its holding, specifying as well the
particular facts on which that holding relies.” Abovian, 234 F.3d at *17.
12
In re Kasinga, 21 I&N Dec. 357, 365 (B.I.A. 1997) (analyzing a well-founded fear of
future persecution). But all of these cases are distinguishable. In Fatin, the alien had not
suffered past persecution and was attempting to prove a well-founded fear of future
persecution. Our holding rested on our decision that the alleged persecution was not “on
account of” the alien’s involvement in a social group. 12 F.3d at 1240. In Kasinga, the
alien alleged a future threat of female genital mutilation if she was deported to her home
country of Nigeria. She did not allege past persecution. Moreover, in A-E-M, the alien’s
testimony was confined to a single threat, that “at some point, a painted phrase appeared
on the exterior of his house indicating that he would be “the next one”; he “assumed” the
Shining Path group was responsible for this threat but he had nothing more on which to
rely. A-E-M, 21 I&N Dec. 1157, at *3.
Here, the BIA’s determination was conclusory and without connection to
reasonable, substantial, and probative evidence on the record considered as a whole.5
We find the record clearly demonstrates Montenegro has produced substantial evidence of
past persecution on account of his union activities.

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III.
To establish eligibility for asylum, the alien must present evidence that his alleged
persecutors want to punish him “on account of race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). To establish a
“well-founded fear of persecution,” the alien must demonstrate both a subjectively
genuine fear of persecution and an objectively reasonable possibility of persecution. INS
v. Cardoza-Fonseca, 480 U.S. 421, 430-31 (1987). The subjective prong requires a
showing that the alien’s fear is genuine. The objective prong requires a determination
whether a reasonable person in the alien’s circumstances would fear persecution if
returned to his home country.
Where an alien demonstrates past persecution, he is presumed to have a well-
founded fear of persecution. Abdille, 242 F.3d at 496; 8 C.F.R. § 208.13(b)(1) (“An
applicant who has been found to have established such past persecution shall also be
presumed to have a well-founded fear of persecution on the basis of the original claim.”).
The INS may rebut this presumption by demonstrating the applicant experienced a
“fundamental change in circumstances” or that he could avoid persecution by relocating
to another part of his home country. 8 C.F.R. § 208.13(b)(1)(i)(A)-(B).
Here, the INS has not submitted evidence to rebut the presumption. Montenegro’s
showing of past persecution on account of his union activities, therefore, properly
establishes his eligibility for asylum relief.

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6Based on the testimony of Werner Montenegro and his son, Jose, and the
corroborating evidence in the record, we find substantial evidence that Jose was exposed,
both directly and indirectly, to the persecution noted here. We therefore direct the BIA to
direct the IJ to grant Jose Montenegro’s application for asylum.
14
IV.
We will grant the petition for review, vacate the BIA’s order, and remand to the
BIA with direction to remand to the IJ to grant the application for asylum.6

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

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