The applicant, a Mr. Briones, had petitioned the Ninth Circuit to review a BIA decision denying his request for asylum and withholding of deportation. At Briones’ deportation hearing, the IJ had made a specific finding that Briones’ story was neither reliable nor credible.  The BIA took note of the credibility finding but did not address it, stating, "[W]e do not reach the question of credibility because we find that the facts as alleged by [the applicant] do not demonstrate a well-founded fear of persecution."  The Ninth Circuit disagreed and concluded that if Briones’ testimony is accepted at face value, he makes a compelling case that he faces future persecution.  The BIA, therefore, erred in bypassing the credibility issue.

In his application and testimony, Briones, a citizen of the Philippines, alleged that he had acted as a confidential informer for the Filipino armed forces and against the insurgent Communist New People’s Army (NPA) on at least three occasions.  He did so because he found the NPA’s infliction of damage upon his village to be repulsive.

Allegedly, Briones gathered information about the NPA and provided it to a cousin who was a lieutenant in the military.  The information led to two combat victories over the NPA, the deaths of NPA operatives, and the capture by the government of an important NPA leader.

Briones said that the NPA had discovered his role as a government informer, claiming that his name had appeared on an NPA death list.  He also received a package wrapped with a black ribbon that included the political insignia of the Communists (a hammer and a sickle), which to Briones meant "death."  The package may or may not have contained a note that said he would "be killed next," as Briones’ testimony was hazy on this point.  Briones further testified that the same cousin showed him a military intelligence report containing information about his appearance on the NPA’s death list.  Soon after, Briones fled the Philippines.

The Ninth Circuit disagreed with the BIA’s conclusion that retaliation by the NPA against an informer working for the very government that the NPA was seeking to overthrow is not persecution on account of a protected status.  The appeals court concluded, "Briones’ active involvement in a fiercely ideological dispute between the government of the Philippines and the Communist NPA leads us inexorably to the conclusion on these facts that the NPA surely attributed to him an adverse political point of view when they placed him on their assassination list and sent him a death threat."  The court noted that the record contains no other reason why the NPA would want to eliminate Briones other than his contribution to their defeat in the field, the deaths of their combatants, and the capture of one of their leaders.

The court also rejected the BIA’s finding that Briones’ status as a well recognized artist in the Philippines and his fear of persecution being localized to his hometown undercut his claim of a well-founded fear of retribution.  The Ninth Circuit rejected this analysis for four reasons.

First, the court concluded, the analysis is fatally colored by the BIA’s erroneous view of the necessarily political nature of Briones’ conduct, conduct which provoked an intention on the part of NPA to kill him.  Second, the information that Briones gave to the military thwarted the NPA’s tactical plans and resulted in the deaths of NPA operatives and the arrest of one of its commanders.  A reasonable fact finder would be compelled to conclude that Briones’ fear is not only subjectively real but also objectively well-founded.  Third, any speculation about the NPA’s intention evaporates if Briones’ testimony regarding the appearance of his name on the NPA’s assassination list and the information conveyed him by the lieutenant is found to be credible.  Fourth, the NPA remains capable of killing its opponents.

Nevertheless, the court did not order the BIA to grant relief and instead remanded for consideration of the credibility issue.  It noted that the record can still lead to the conclusion that the IJ was correct when he said, "[F]or all the reasons stated, the court has concluded that Briones’ application is neither reliable nor credible."  In remanding the matter, the court noted that although the BIA is free to determine its own method of processing asylum claims, the BIA might want to consider addressing, rather than bypassing, credibility problems.  Conclusions stated in the alternative would normally relieve both the Ninth Circuit and the BIA of the delay and extra work caused when a remand is required.

Briones v. INS, __ F.3d __, 1999 WL 253190 (9th Cir. Apr. 30, 1999).