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Office of the Circuit Executive U.S. Court of Appeals for the Ninth Circuit
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Case Name:
TAGAGA V INS
Case Number: Date Filed:
98-71251 09/21/00
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 98-71251
AMINISITAI TAGAGA, ASINATE INS Nos.
TAGAGA, AMINISITAI NAITAGAGA,
NANISE NAITAGAGA, SETITA A71-789-570
NAITAGAGA, and MELEHOLA A71-789-571
NAITAGAGA A71-789-572
Petitioners, A71-789-573
A71-789-574
v. A71-789-575
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
OPINION
Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted March 17, 2000--San Francisco, California
Filed September 21, 2000
Before: Henry A. Politz,1 Stephen Reinhardt, and Michael Daly Hawkins, Circuit Judges.
Opinion by Judge Reinhardt
_________________________________________________________________
1 The Honorable Henry A. Politz, Senior United States Circuit Judge for the Fifth Circuit
Court of Appeals, sitting by designation.
12205
COUNSEL
Charles E. Nichol, San Francisco, California, for the petitioner.
John L. Davis, Office of Immigration Litigation, United States Department of Justice, Washington,
D.C., for the respondent.
_________________________________________________________________
OPINION
REINHARDT, Circuit Judge:
Along with his family, Aminisitai Tagaga petitions for review of a decision of the Board of
Immigration Appeals (BIA).2 The BIA dismissed Tagaga's appeal and affirmed the immigration
judge's denial of his requests for political asylum and withholding of deportation under
the Immigration and Nationality Act, 8 U.S.C. SS 1158 and 1253(h). We have jurisdiction
under 8 U.S.C. S 1105a(a)3 and grant Tagaga's petition for review.
I.
We consider Aminisitai Tagaga's asylum application against the backdrop of racially based
political discrimination in Fiji, a country which has a bare majority of ethnic Fijians,
_________________________________________________________________
2 The asylum applications of Aminisitai Tagaga's wife and four children depend on the
outcome of Aminisitai's application.
3 The Illegal Immigration Reform and Immigration Responsibility Act of 1996 ("IIRIRA"),
Pub.L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), replaced this section with a new
judicial review provision codified at 8 U.S.C. S 1252. However, because under IIRIRA's
transitional rules this new review provision does not apply to petitioners like Tagaga
whose deportation proceedings commenced before April 1, 1997, we continue to exercise
jurisdiction under S 1105a(a). See IIRIRA S 309(c)(1).
12208
the remainder of the population being composed largely of ethnic Indians. The Alliance
Party governed Fiji from the time the country gained independence from Great Britain in
1970 until 1987. In April 1987 the Indian-dominated Labour Party defeated the Alliance
Party in an open and free election. One month later, Major General Sitiveni Rabuka led
a military coup to overthrow the new government. Rabuka further consolidated power
through a second coup that year. According to the U.S. State Department, the "stated
purpose of the 1987 military coups was to ensure the political supremacy of the
indigenous Fijian people." U.S. Dep't of State, Country Reports on Human Rights
Practices for 1993 635 (1994). During these coups the military regime arbitrarily
arrested and detained Indo-Fijians, and it subsequently encouraged and condoned
discrimination, harassment, and violence by ethnic Fijians against Indo-Fijians.
In 1990 the regime implemented a new constitution ensuring political dominance
by ethnic Fijians.4 In 1992 Rabuka's political party won electoral control of
the Parliament, and he became prime minister.5
_________________________________________________________________
4 "The Constitution guarantees ethnic Fijians dominance of the Government by providing
them with 37 of 70 seats in the elected lower house of Parliament. . . . In the Senate
(an appointed body with essentially review powers and the right to veto legislation),
ethnic Fijians hold 24 of the 34 seats . . . . Other constitutional features designed
to ensure ethnic Fijian dominance include a requirement that the Prime Minister be an
ethnic Fijian and selection procedures which virtually ensure that the President will
also be an ethnic Fijian." U.S. Dep't of State, Country Reports on Human Rights
Practices for 1993 633 (1994).
5 See generally Singh v. INS, 94 F.3d 1353, 1356-57 (9th Cir. 1996). While the BIA
referred in its opinion to general changes that had occurred in Fiji since the 1992
elections, the record does not contain any evidence of improved country conditions
directly relevant to Tagaga's case. See Garrovillas v. INS, 156 F.3d 1010, 1017
(9th Cir. 1998) ("Our cases hold that `individualized analysis' of how changed
conditions will affect the specific petitioner's situation is required."). As
this court observed in a different asylum case, another military coup characterized
by anti-Indian sentiment has recently taken place in Fiji. See Chand v. INS,
_______ F.3d _______, No. 98-70541, 2000 WL 1056081, at *1 n.3 (9th Cir. Aug. 2, 2000).
The occurrence of this coup does not affect our decision here.
12209
Tagaga is an ethnic Fijian. As a career military officer, he had earned the rank of major
and held a high-level position in the Army's engineering corps. Through his work Tagaga
established strong ties with the Indian community of Fiji, and beginning in 1985 he became
an active supporter of the Indian-dominated Labour Party. He frequently attended Labour
Party meetings and eventually became responsible for providing security at these meetings.
Tagaga believed strongly that Indo-Fijians deserved to be treated equally and have the
same legal rights as others living in Fiji.
Following the first coup in May 1987, military personnel were ordered to cease contact
with the Indian community. Tagaga did not do so. As he testified at the asylum hearing:
"My relationship with the Indian community was too strong to have the ties broken." He
continued to attend Labour Party meetings, even though he knew that undercover military
intelligence agents also attended and had identified him. Military personnel warned Tagaga
that if he did not discontinue his relations with the Indian community, he would face
arrest and court-martial.
By the time of the second coup in 1987, Tagaga began to refuse orders from his superiors
directing him to arrest and detain Indo-Fijians whom the military regime perceived as
threats to its power. Tagaga "didn't want to see the Indian population suffer anymore.
" He even gave information to the Indian community regarding future planned arrests.
On September 7, 1987, Tagaga was summoned to appear before a military court, and two
weeks later he was prosecuted for disobedience of military orders, breach of discipline,
insubordination, and conduct unbecoming an officer. At the court martial, Tagaga
expressed his political opinion that the coup was illegitimate and that the government
should be democratic. The military court revoked his military privileges and sentenced
him to six months house arrest.
In February 1988 Tagaga was ostensibly reinstated as a major, but denied privileges
and authority commensurate with
12210
that rank. In July 1989 he was transferred to serve in the Fijian division of the
United Nations peacekeeping forces in Lebanon. Tagaga believed that military officials
transferred him in order to separate him from the Indian community in Fiji and also
to punish him by separating him from his family and subjecting him to the division's
notoriously poor living conditions.
In June 1990 a lieutenant colonel and close friend of Tagaga arrived in Lebanon.
He informed Tagaga that military officials had in fact sent Tagaga to Lebanon for
the purposes of separation and punishment; that he remained under constant
surveillance; and that he would face arrest and treason charges if he returned to
Fiji. This lieutenant colonel, Tagaga's commanding officer, advised him to leave
the army and not return to Fiji. A second lieutenant colonel confirmed this information
for Tagaga.
Tagaga decided to seek asylum in the United States. He went to the American Embassy in
Israel and obtained visas for himself and his family.6 He returned to Fiji without
reporting to military headquarters, gathered his family, and fled to the United States.
He entered this country in September 1990 under a visitor's visa that authorized him to
stay until September 6, 1991. Six months prior to the expiration of his visa, he filed
an application for asylum with the Immigration and Naturalization Service (INS).
An asylum officer denied Tagaga's application, and the INS commenced deportation
proceedings in October 1992. An immigration judge (IJ) heard Tagaga's renewed
application for asylum and withholding of deportation in January 1995. In support
of this application, Tagaga submitted letters from four Fijian military officers
stating that
_________________________________________________________________
6 Tagaga told embassy officials that he wanted to apply for political asy- lum, but was
given visitor visas and instructed to apply in the United States.
12211
he was sent to Lebanon for punishment and that his life and freedom would be in danger if he
returned to Fiji. 7
While stating that she was "extremely sympathetic to the situation of Mr. Tagaga" as it was
"apparent he has very democratic beliefs and does not agree with the tact[sic] the current
Fijian government has taken against the Indians and other minorities in Fiji," the IJ
concluded that Tagaga had failed to establish a well-founded fear of persecution and
rejected his application. The BIA affirmed.8 Tagaga petitioned this court for review
of the BIA's decision.
II.
[1] To establish eligibility for asylum, an applicant must prove that he is unable or
unwilling to return to his home country because of a 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. S 1101(a)(42)(A). A well-founded fear of future persecution
may be established by proving either past persecution or "good reason" to fear "future
persecution. " Navas v. INS, 217 F.3d 646, 654 (9th Cir. 2000) (quoting Vilorio-Lopez v.
INS, 852 F.2d 1137, 1140 (9th Cir. 1988)). The Attorney General
has discretion to grant asylum to eligible applicants. INS v. Cardoza-Fonseca, 480 U.S.
421, 428 & n.5 (1987).
_________________________________________________________________
7 One letter, dated May 14, 1992, states: "Major Tagaga's political opinion, social
involvement and continuous association with the Indian businessmen, had jeopardized
his outstanding military record[ ], whereby his career and freedom are no longer
guaranteed by the Fijian Army. His life is in danger or in a real life threatening
situation. There is a possibility that the officer could face trial by court martial
if he continues his military service." Three of the four officers sent notarized letters
in 1994 confirming their earlier letters and substantiating their relationships with
Tagaga. 8 Relying on their finding that Tagaga was ineligible for asylum, both the IJ
and the BIA also found him ineligible for withholding of deportation.
12212
In reviewing the BIA's determination of eligibility for asylum, we apply a substantial
evidence test. The BIA's decision must be upheld if "supported by reasonable, substantial,
and probative evidence on the record considered as a whole." INS v. Elias-Zacarias,
502 U.S. 478, 481 (1992) (quoting 8 U.S.C. S 1105a(a)(4)); Prasad v. INS, 47 F.3d 336,
338 (9th Cir. 1995). Its decision must be reversed if a reasonable factfinder would have
to conclude that the requisite persecution or fear has been shown. Elias-Zacarias, 502
U.S. at 481, 483-84; Singh v. INS, 134 F.3d 962, 966 (9th Cir. 1998). Moreover, we must
reverse the BIA's denial of withholding of deportation if such a factfinder would also
have to conclude that it is more likely than not that the applicant would be subject to
persecution if sent back to the country he fled. See Cardoza-Fonseca, 480 U.S. at 423.
[2] We hold that a reasonable factfinder would be compelled to conclude that Tagaga had
a well-founded fear of future persecution, and that he also has met the higher burden
for withholding of deportation. Tagaga established a substantial likelihood that he
would be tried for treason if he returned to Fiji. His fear was not based on mere speculation,
as the INS suggests, but rather on direct reports from high-ranking Fijian military
officials. These officials informed Tagaga that he was sent to Lebanon to separate
him from his family and the Indo-Fijian community and that he remained under constant
military surveillance. They also stated specifically that were Tagaga to return to
Fiji, he would face trial for treason and that his life and freedom would be placed
in danger. 9
_________________________________________________________________
9 Tagaga received these warnings firsthand from two officers in Lebanon. He also
submitted, in support of his asylum application, four letters from Fijian military
officials, dated 1991 and 1992, which conveyed the same information. In questioning
the veracity of these letters, the BIA cited two concerns raised in an August 1993
advisory opinion by the U.S. State Department. First, the State Department noted
that the similar language of the letters suggested that they were drafted by one
person, not the individuals who signed them. Second, the State Department found it
12213
[3] While the BIA acknowledged that Tagaga "may indeed face a court martial" on his
return, it concluded that the reason was his "abrupt departure from the army and his
apparent AWOL status." Such status, it remarked, is "unrelated to a statutorily protected
ground." This view of Tagaga's predicament is completely contrary to all of the facts
in the record. The record is undisputed that Tagaga did not abandon his successful
military career and flee his homeland because he was tired of the work or wanted
a change in lifestyle. Rather, the uncontroverted facts establish that Tagaga, having
already served a six-month sentence imposed by the military regime, fled Fiji because
he feared that the regime would prosecute him for treason for, among other reasons,
his refusal to participate in the regime's persecution of Indo-Fijians.
[4] The INS argues that we should consider the sentence Tagaga served in 1987 and 1988
"disproportionately lenient" because Tagaga admits to having disobeyed his orders. It
is well established, however, that a government may not legitimately punish an official
for refusing to carry out an inhumane order. See Barraza Rivera v. INS, 913 F.2d 1443,
1451
(9th Cir.1990) (holding that punishment for "refusing to comply with military orders .
. . because they violate standards of human decency" can itself amount to persecution).
This is a corollary of the universally recognized principle that obedi-
_________________________________________________________________
"unlikely" that active duty military officers would state in a public record that a fellow
officer was under surveillance or that his life would be in jeopardy if he returned to Fiji.
However, the State Department also remarked that "[t]he strength of the application may be
affected by your interview or hearing, or additional information subsequently presented by
the applicant." Tagaga, in fact, did submit additional information in support of these
letters' veracity: notarized letters, sent in 1994, from three of the four military
officers confirmed their earlier letters and explained how they knew Tagaga. Also, Tagaga
explained at his asylum hearing that these officers were willing to divulge confidential
information on his behalf because of their close personal relationship with him. These
subsequent exhibits and information, not addressed by the BIA, resolved the concerns
raised by the State Department.
12214
ence to superior orders does not relieve an official from responsibility for humanitarian
law or human rights violations.10 Indeed, had Tagaga, following orders, directly participated
in the persecution of Indo-Fijians, he would be ineligible for asylum under 8 U.S.C. S 1158(b)
(2)(A)(i). See also 8 U.S.C. S 1101(a)(42) (excluding participants in persecution from definition
of "refugee"). Tagaga adhered to higher principles of law by refusing to arrest Indo-Fijians and
warning others of planned arrests. For this conduct, his punishment of six months confinement was
not "disproportionately lenient." To the contrary, it was excessive, because it was unlawful.
[5] Similarly, with regard to Tagaga's current "apparent AWOL status," we have held that
"an alien may qualify for refugee status after either desertion or draft evasion if he or
she can show that military service would have required the alien to engage in acts `contrary
to basic rules of human conduct.' " Barraza Rivera, 913 F.2d at 1451 (quoting Office of the
United Nations High Commissioner for Refugees, Hand-book on Procedures and Criteria for
Determining Refugee Status P 170-71 (Geneva, 1979)11 ). Tagaga's unwillingness to participate
in the race-based arrest and detention of Indo-Fijians meets that standard.
[6] Like most human conduct, physical abuse or incarceration may have multiple motives.
A guerilla group may beat and torture a factory worker in part because it wants money from
her, but also because the worker opposes its political aims and refuses to join. See Borja
v. INS, 175 F.3d 732, 735-
_________________________________________________________________
10 See, e.g., Prosecutor v. Erdemovic, Case No. IT-96-22-T, P 15 (Int'l Crim. Trib. for Former
Yugoslavia, Trial Ch. I, Nov. 29, 1996) (sentencing judgement), available at
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