A-E-M

                                                                   Interim Decision #3338




                           In re A-E-M-, Respondent

                            Decided February 20, 1998

                          U.S. Department of Justice
                   Executive Office for Immigration Review
                       Board of Immigration Appeals

(1) The reasonableness of an alien’s fear of persecution is reduced when his family remains in
  his native country unharmed for a long period of time after his departure.
(2) Where evidence from the United States Department of State indicates that country condi-
  tions have changed after an alien’s departure from his native country and that the Peruvian
  Government has reduced the Shining Path’s ability to carry out persecutory acts, the alien
  failed to establish a well-founded fear of persecution in Peru.
(3) An alien who failed to rebut evidence from the United States Department of State indicat-
  ing that the Shining Path operates in only a few areas of Peru did not establish a
  well-founded fear of country-wide persecution in that country.

FOR RESPONDENTS: Donald L. Schlemmer, Esquire, Washington, D.C.

BEFORE: Board En Banc: DUNNE, Vice Chairman, VACCA, HEILMAN, HOLMES,
HURWITZ, VILLAGELIU, FILPPU, COLE, MATHON, and JONES, Board Members. Dis-
senting Opinions: SCHMIDT, Chairman, joined by GUENDELSBERGER, Board Member;
ROSENBERG, Board Member.

HURWITZ, Board Member:

   In a decision dated March 18, 1996, an Immigration Judge found the
respondents deportable as charged and denied their applications for asylum
under section 208(a) of the Immigration and Nationality Act, 

(a) (1994), and withholding of deportation under section 243(h) of the
Act, 

(h) (1994). In lieu of deportation, the Immigration Judge
granted the respondents the privilege of voluntary departure under section
244(e)(1) of the Act, 

(e)(1) (1994). The respondents have
timely appealed the Immigration Judge’s decision denying their applications
for asylum and withholding of deportation. We deny the respondents’ request
for oral argument pursuant to 

(e) (1997), and we will dismiss
their appeal.

                        I. FACTUAL BACKGROUND
    The record reveals that the primary respondent is a 40-year-old native and
citizen of Peru, who entered the United States without inspection on

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September 18, 1989. The co-respondent, who is married to the primary
respondent, is a 37-year-old native and citizen of Peru who entered the
United States without inspection on November 21, 1993. The primary
respondent testified that he worked as a laborer at the ship docks in Lima,
Peru, and was a member of the APRA political party. He stated that he
assisted the APRA party in posting signs and painting, among other activi-
ties. The primary respondent recounted that in April and May of 1989, three
of his friends were killed by the Shining Path guerrilla group approximately 4
miles from the primary respondent’s workplace. These friends were APRA
party members who distributed leaflets. The primary respondent claimed that
in 1984, his uncle, who was employed as a police officer, was killed by
Shining Path guerrillas. The uncle’s daughter, also a police officer, was poi-
soned by Shining Path guerrillas in 1986. The primary respondent testified
that at some point, a painted phrase appeared on the exterior of his house indi-
cating that he would be “the next one”; he “assumed” that the Shining Path
was responsible for this threat. The primary respondent stated that he was
well known to the Shining Path because of his leadership position in local
sports groups. Finally, he testified that he fears returning to Peru because the
Shining Path will remember his face and kill him.1

             II. THE IMMIGRATION JUDGE’S DECISION
   The Immigration Judge found the primary respondent to be a credible wit-
ness and found that the respondents had a subjective fear of persecution. He
concluded, however, that the respondents’ evidence did not prove past perse-
cution or a well-founded fear of future persecution. The Immigration Judge
also noted that because 6 1/2 years had passed since the primary respondent’s
departure from Peru, it was unlikely that the guerrillas would resume their
threats against him. Finally, the Immigration Judge relied on the evidence of
record to conclude that country conditions in Peru had improved since 1989.

                       III. APPELLATE ARGUMENTS
   The respondents have appealed, arguing that the Immigration Judge (1)
denied them due process of law by failing to consider all of the evidence of
record; (2) gave too much weight to certain pieces of evidence; (3) errone-
ously found that they did not meet their burdens of proof to merit a grant of
asylum or withholding of deportation; and (4) violated international treaty
obligations in failing to grant asylum or withholding of deportation.


  1 We also observe that the co-respondent’s employer testified at the deportation hearing.

Although the employer’s testimony sheds light on the circumstances of the respondents’ lives
since their arrival in the United States, it does not assist the Board in resolving whether the
respondents experienced past persecution or have a well-founded fear of persecution in Peru.

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                              IV. ANALYSIS
   An applicant qualifies as a refugee under section 101(a)(42)(A) of the Act,

(a)(42)(A) (1994), if he demonstrates that he has experienced
persecution or has a well-founded fear of persecution in his home country on
account of his race, religion, nationality, membership in a particular social
group, or political opinion. See M.A. v. United States INS, 

, 307
(4th Cir. 1990) (en banc); 

, 10,342 (1997) (to be codified
at 

(b)) (interim, effective Apr. 1, 1997). A fear of persecu-
tion is considered to be well founded under this section if it is genuine and if a
reasonable person in the applicant’s circumstances would fear persecution.
See INS v. Cardoza-Fonseca, 

 (1987); INS v. Stevic, 

 (1984); Matter of Mogharrabi, 

 (BIA 1987).

                             A. Past Persecution
   First, we adopt the Immigration Judge’s finding that the primary respon-
dent provided credible testimony. Moreover, we agree with the Immigration
Judge’s conclusion that the primary respondent did not suffer past persecu-
tion in Peru on account of one of the five protected grounds under the Act.
See Cruz-Diaz v. INS, 

 (4th Cir. 1996) (holding that the evi-
dence did not prove that the applicant objectively feared persecution on
account of actual or imputed political opinion). Although regrettable, the
harassment that the primary respondent received in the form of a painted
threat on his house does not rise to the level of persecution. See, e.g., Ghaly v.
INS, 

 (9th Cir. 1995) (distinguishing between mere
harassment or discrimination and persecution); Fatin v. INS, 

 (3d Cir. 1993) (finding that persecution within the Act does not encom-
pass all treatment that society regards as unfair, unjust, or even unlawful or
unconstitutional); Matter of Kasinga, 

 (BIA 1996) (dis-
cussing the level of harm necessary to constitute persecution). Aside from
this one threat, which the primary respondent could not link definitively to
the Shining Path, the primary respondent admitted that neither he nor his
immediate family had further encounters or problems with the Shining Path
before his departure from Peru.

                  B. Well-founded Fear of Persecution
   Next, we find that the primary respondent lacks an objective,
well-founded fear of persecution from the Shining Path if he returns to Peru.
See generally Huaman-Cornelio v. Board of Immigration Appeals, 

 (4th Cir. 1992) (holding that the applicant failed to produce suffi-
cient evidence to prove a well-founded fear of persecution at the hands of the
Shining Path or the MRTA in Peru). We accept the primary respondent’s tes-
timony that Shining Path guerrillas murdered his uncle and cousin. However,

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no evidence shows that these family members were murdered for reasons
other than their status as police officers.2 See Matter of Fuentes, 

 (BIA 1988) (stating that “dangers faced by policemen as a
result of that status alone are not ones faced on account of” one of the five
protected grounds). Even assuming that these relatives were murdered over a
decade ago for reasons outside of their occupations, the passage of time
undermines the primary respondent’s fear of harm based on the positions of
his relatives. Furthermore, we note that the co-respondent remained
unharmed in Peru for 4 years after the primary respondent’s departure. More-
over, nowhere have the respondents argued that their family members have
been harmed since the respondents’ departures from Peru. See Cuadras v.
United States INS, 

 (9th Cir. 1990) (holding that an appli-
cant’s fear of persecution is undercut when his or her family remains in the
native country unharmed).
    We also recognize that three of the primary respondent’s APRA party
friends allegedly were killed by Shining Path guerrillas. However, these mur-
ders occurred over 8 years ago, during a time when the Shining Path posed a
greater threat to its political enemies and the general populace. As the evi-
dence of record indicates, the Shining Path’s ability to carry out retribution
against its political opponents has diminished recently. See Bureau of
Democracy, Human Rights and Labor, Dep’t of State, Peru - Profile of Asy-
lum Claims & Country Conditions 3 (Jan. 1996) [hereinafter Profile] (made
part of the record of proceedings). The Profile states that the Peruvian Gov-
ernment “has seriously damaged” the Shining Path, “especially by appre-
hending its principal leaders, including Abimael Guzman, the founder,
leader, and chief strategist of the organization, who was tried, convicted, and
jailed for life in late 1992.” Id. at 4. This source further reports that the “dis-
mantling of [the Shining Path’s] command and control structure” has been
accompanied by a greater than 50 percent drop in the number of people mur-
dered by the organization. Id.
    Furthermore, in light of the country conditions evidence of record which
states that the Shining Path operates in only a few areas of Peru, the respon-
dents have not provided any evidence to suggest that their fear of persecution
from the Shining Path would exist throughout that country. See Matter of
C-A-L-, 

 (BIA 1997) (discussing internal relocation).
In light of this and the other evidence of record, we find that the respondents’
“allegations do not provide the ‘specific and objective facts’ necessary to
‘support an inference of risk of future persecution.’” Figeroa v. INS, 

 The primary respondent testified that the Shining Path murdered his uncle because “[a]s a

police officer, he was concern[ed] with caring and looking after people, and the Shining Path
had their eyes on these people.” The primary respondent further testified that his cousin, who
was “very interested in finding out” how her father had been murdered, subsequently was killed
by the Shining Path.

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76, 80 (4th Cir. 1989) (quoting Cardoza-Fonseca v. INS, 

 (9th Cir. 1985), aff’d, 

 (1987)).
   The dissenting opinions in the instant case cite with approval Gonza-
lez-Neyra v. INS, 

 (9th Cir. 1997), reh’g denied and amended,

, 

 (9th Cir. Jan. 6, 1998). In Gonzalez-Neyra v.
INS, the United States Court of Appeals for the Ninth Circuit reversed and
remanded a Board decision that dismissed a Peruvian alien’s appeal from the
denial of his asylum claim. Upon review, we find that the facts of that case are
distinguishable from the facts of the instant case. The alien in Gonza-
lez-Neyra v. INS was forced for 9 months (from April 1990 to January 1991)
to make payments to men who were later revealed to be Shining Path guerril-
las. 

. When he learned that the extortionists were Shining Path
guerrillas, he directly told them that he would no longer give them money to
support their armed struggle. The guerrillas personally ordered him to close
his video game business and warned him that he risked death if he refused.
After making one further payment to the guerrillas, he fled his home and
business. His fear of retaliation from the Shining Path members who had
extorted money from him subsequently became heightened when he learned
that these guerrillas had been identified in the press. Furthermore, after he
fled his home and business, his family informed him that anonymous persons
continued to demand information of his whereabouts. 

   The instant case involves dissimilar facts and circumstances. The primary
respondent in this case never had a face-to-face encounter with his alleged
persecutors. In fact, the only direct harm experienced by the respondent was a
painted threat on his house, allegedly by the Shining Path. The respondent
has not shown that the harm which befell his uncle and cousin, who were
murdered in 1984 and 1986 by the Shining Path, was inflicted on account of
membership in the respondent’s family or political opinion. Additionally, the
respondent has offered no evidence that the Shining Path continues to be
interested in his whereabouts since his departure from Peru. Finally, we
observe that the instant case is controlled by neither Gonzalez-Neyra v. INS,
supra, nor the law of the Ninth Circuit, but rather by the law of the Fourth
Circuit. According to applicable Fourth Circuit law, we find that the respon-
dents in the instant case have not adduced sufficient objective facts to support
an inference that they risk future persecution. Figeroa v. INS, supra; see also
Huaman-Cornelio v. Board of Immigration 

 (holding
that the Peruvian applicant failed to offer concrete facts to support his alleged
well-founded fear of persecution at the hands of the Shining Path or the
MRTA).
   Although we sympathize with the respondents, who endured social and
political unrest in Peru before making a successful life for themselves in the
United States, for the reasons discussed above we conclude that they failed to
present sufficient evidence to support their asylum claim. As the respondents
have failed to satisfy the lower burden of proof required for asylum, it

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follows that they also have failed to satisfy the clear probability standard of
eligibility required for withholding of deportation. See Matter of
Mogharrabi, supra; 

, 10,343-44 (1997) (to be codified at

) (interim, effective Apr. 1, 1997). The evidence does not
establish that it is more likely than not that the respondents would be subject
to persecution on account of one of the five grounds specified in section
243(h) of the Act. See INS v. Cardoza-Fonseca, supra; INS v. 

   Additionally, we consider the respondents’ contention that their deporta-
tion would violate both the Geneva Convention Relative to the Protection of
Civilian Persons in Time of War3 and customary international law. We note
that such arguments were discussed and rejected in the Board’s decision in
Matter of Medina, 

 (BIA 1988). As we held in Matter of
Medina, neither the Geneva Convention nor customary international law cre-
ates a potential remedy from deportation that can be sought by individual
aliens in deportation proceedings over and above that provided by the Act, as
implemented by regulation. Additionally, we held that “even if it were
assumed that customary international law could provide a basis for individ-
ual aliens to assert a right that their deportation be withheld, . . . [t]he author-
ity to consider such requests has not been delegated by the Attorney General
to the immigration judges or this Board.” 

.
   Finally, inasmuch as we have reviewed the record on a de novo basis, we
find that the respondents have not suffered any prejudice due to the Immigra-
tion Judge’s alleged failure to properly consider and weigh the evidence of
record.4 See Matter of Burbano, 

 (BIA 1994); Matter of
Edwards, 

 (BIA 1990).
   In light of the foregoing, we enter the following orders.
   ORDER:            The respondents’ appeal is dismissed.
   FURTHER ORDER:                     Pursuant to the Immigration Judge’s order
and in accordance with our decision in Matter of Chouliaris, 

 (BIA 1977), the respondents are permitted to depart from the United
States voluntarily within 30 days from the date of this order or any extension
beyond that time as may be granted by the district director; and in the event of
failure to so depart, the respondents shall be deported as provided in the
Immigration Judge’s order.


  3 Geneva Convention No. IV, Aug. 12, 1949, 6 U.S.T. 3516, T.I.A.S. No. 3365, 75 U.N.T.S.

287 (entered into force for the United States Feb. 2, 1956).
  4 In this regard, we note that we have fully considered the evidence of record which states

that a “guerrilla war” (referred to by the respondents on brief as a “civil war”) has been waged
by the Shining Path and another terrorist organization since 1980. See Committees on
International Relations and Foreign Relations, 104th Cong., 2d Sess., Country Reports on
Human Rights Practices for 1995 2 (Joint Comm. Print 1996) (copy made part of the record of
proceedings). However, as discussed above, other documentary evidence of record shows that
the Peruvian Government has curtailed sharply the Shining Path’s ability to wage this “war.”

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DISSENTING OPINION: Paul W. Schmidt, Chairman, in which John
W. Guendelsberger, Board Member, joined
   I respectfully dissent.
   The primary respondent has presented credible testimony establishing that
a reasonable person in his circumstances would fear political persecution at
the hands of the Shining Path guerrillas if returned to Peru. The objective rea-
sonableness of the primary respondent’s fear is confirmed by the two reports
from the United States Department of State, Bureau of Democracy, Human
Rights, and Labor contained in the record. I would sustain the respondents’
appeal and grant them asylum.
   The primary respondent testified credibly that his uncle and his cousin
were murdered by Shining Path guerrillas. Those murders, 2 years apart,
appear to be more than coincidental. Although both the uncle and the cousin
were police officers, both were killed while off-duty. The uncle was driving
his pick-up truck and the cousin was poisoned in her residence. Those cir-
cumstances lead to the reasonable conclusion that both were killed by the
Shining Path for their imputed political support of the Peruvian Government,
rather than because of activities performed in the line of duty as law enforce-
ment officers. Cf. Matter of S-P-, 

 (BIA 1996) (stating that
circumstances can support a finding of persecution on account of imputed
political opinion even where other motives for mistreatment are possible).
   Therefore, this case is not controlled by Matter of Fuentes, 

 (BIA 1988), which held that a policeman does not suffer persecution for
refugee purposes on the basis of acts directed against him while performing
his official duties during a time of civil conflict. On the contrary, in Fuentes
we recognized that a former policeman, that is, one no longer performing
official law enforcement duties, could suffer persecution on account of politi-
cal opinion or membership in a particular social group. The situation of the
uncle and the cousin is analogous to that of a former policeman. The primary
respondent’s objective fear is also supported by credible testimony that the
Shining Path murdered three of his friends who, like the respondent, were
politically active in the APRA political party.
   The State Department reports in the record confirm that, notwithstanding
Peruvian Government efforts that have diminished its strength, the Shining
Path retains both the will and the ability to inflict harm on targeted individu-
als and groups throughout Peru. This case is very similar to a recent case
where the United States Court of Appeals for the Ninth Circuit Court, relying
to a large extent on a dissenting opinion by Board Member Rosenberg,
rejected the Board’s conclusion that conditions had changed in Peru so as to
eliminate most claims of persecution at the hands of the Shining Path. Gonza-
lez-Neyra v. INS, 

 (9th Cir. 1997), reh’g denied and amended,

, 

 (9th Cir. Jan. 6, 1998).


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   The primary respondent has established an objective basis that would lead
a reasonable person to fear political persecution at the hands of the Shining
Path if returned to Peru. Therefore, I would sustain the respondents’ appeal
and grant them asylum. Consequently, I respectfully dissent from the dis-
missal of the appeal.
DISSENTING OPINION: Lory D. Rosenberg, Board Member
   I respectfully dissent.
   One rarely rushes into a single error. Rushing into the first one, one always does too much.
   So one usually perpetrates another one—and now one does too little.
Friedrich Nietzsche, Twilight of the Idols, in The Portable Nietzsche, 463,
470 (Walter Kaufmann ed. and trans., 1982)
   This appeal involves a respondent1 from Peru who established by credible
testimony that he was politically active, both locally and nationally, in the
APRA political party. As a result, the respondent was subjected to threats by
Shining Path guerrillas, and members of his family and several of his fellow
party workers were targeted and then murdered by the Shining Path. The
respondent received a direct threat against his own life—a painted sign on his
house that he would be “the next one”—which, along with the deaths of his
uncle, his cousin, and his friends, precipitated his departure from Peru.
   It is my view that the majority, betraying (not for the first time) apparent
indifference to controlling Supreme Court, circuit court, and Board prece-
dent, has rushed headlong into a series of erroneous conclusions concerning
the respondent’s asylum claim, contorting the evidence of record to support
outcome they have reached: denial of the respondent’s credible claim of a
well-founded fear of persecution in his homeland. To achieve this unfortu-
nately, but transparently, predetermined result, the majority methodically has
discounted the “concrete facts” that form an objective basis for the respon-
dent’s asylum claim.
   In the process, the majority is content to characterize the record’s over-
whelming evidence of the Shining Path guerrillas’ intent to target and assas-
sinate the respondent as but a series of “regrettable” incidents that, taken
individually or cumulatively, do not merit relief from this adjudicative tribu-
nal. Matter of A-E-M-, 

, 1159 (BIA 1998). In the end, the
majority becomes convinced by its own accretion of errors and, unfortu-
nately for the respondent, by doing so much they do distinctly too little.




  1 I note that it is the male respondent, and not his wife, who is the principle subject of the

persecution claim on appeal, and consequently use the term “respondent” in the singular to
refer to the salient facts of persecution involved.

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     I. THE RESPONDENT IS ENTITLED TO A FAIR AND
      REASONABLE ASSESSMENT OF HIS TESTIMONY
     PRESENTED UNDER THE APPLICABLE STANDARD
    The United States Court of Appeals for the Fourth Circuit, in which this
case arises, has stated that an asylum applicant’s testimony alone is sufficient
to establish his or her eligibility for relief where such testimony is “credible,
persuasive, and refers to ‘specific facts that give rise to an inference that the
applicant has been or has a good reason to fear that he or she will be singled
out for persecution’” on account of an enumerated ground. Figeroa v. INS,

 (4th Cir. 1989) (quoting Cardoza-Fonseca v. INS, 

 (9th Cir. 1985) (noting that establishment of objective facts
through testimony alone does not make them any less objective), aff’d, 

 (1987)); see also Huaman-Cornelio v. Board of Immigration
Appeals, 

 (4th Cir. 1992) (requiring evidence of objective facts
to establish a well-founded fear of persecution). The respondent has provided
such testimony.
    In uncontroverted testimony before the Immigration Judge, accepted by
the majority as being credible, the respondent related that he, like his father
before him, was an active supporter of the APRA political party, and distrib-
uted leaflets, posted signs, and painted placards on behalf of the party. In
April and May of 1989, three of the respondent’s friends with whom he
worked and who also were APRA party members who, like the respondent,
distributed leaflets in support of the party, were killed by Shining Path guer-
rillas approximately 4 miles from the respondent’s workplace. The respon-
dent testified that, at some later point, the Shining Path painted a phrase on
his house indicating that he would be “the next one.”
    He related that he was well known personally to the Shining Path because
of his activities in APRA and because of the fact that he held a leadership
position in local sports groups. In addition, in 1984, prior to the time his asso-
ciates were murdered and he received the direct death threat painted on his
house, the respondent’s uncle, who had been employed as a police officer,
was killed by the Shining Path. The uncle’s daughter, also a police officer,
was murdered by the Shining Path in 1986. Based on these specific facts and
circumstances, the respondent testified that he fears returning to Peru
because he believes that the Shining Path will remember his face and kill
him.
    Thus, the essential elements of the respondent’s asylum claim are not in
dispute. For its part, the majority does not differ with the Immigration Judge’s
recitation of these facts, and has agreed that the respondent is a credible wit-
ness. The majority has, nevertheless, adopted the conclusion of the Immigra-
tion Judge who found that the respondent had not established past persecution,
and noted that 6 ½ years had passed since the respondent’s departure from
Peru, and that conditions in the country had improved since that time.

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   Although I agree that the specific facts presented—murder of three com-
patriots by the Shining Path and the desecration of the outside of the respon-
dent’s house with a painted death threat—may not establish past persecution,
whether or not these circumstances constitute past persecution is not
dispositive of his contention that he has a well-founded fear of persecution.
An asylum-seeker is not required to establish that past incidents constituted
persecution in order to establish a well-founded fear of future persecution.
See Shirazi-Parsa v. INS, 

 (9th Cir. 1994) (holding that evidence
that an individual was interrogated and released does not foreclose a
well-founded fear of persecution in the future); see also Abdel-Masieh v.
United States INS, 

 (5th Cir. 1996) (reversing the denial of
asylum based on the Board’s conclusion that an individual who had been
detained twice but not mistreated to the degree that would constitute “perse-
cution” had no fear of persecution in the future, because there “is little reason
to generally suppose . . . [that such past actions] create an ‘outer limit’ on [the
government’s] future actions”).
   The majority, however, declines to meaningfully assess the circumstances
as they existed at the time of the respondent’s departure or to make a determi-
nation of whether the facts related indicate that, at the time of his departure
from Peru, the respondent had a well-founded fear of persecution by the
Shining Path on account of his political opinion. See Gonzales v. INS, 

 (9th Cir. 1996) (criticizing the Board for failing to discuss the evi-
dence “as it stood when [the applicant’s] hearing concluded” and stating that
the passage of time and change of government in a country is not dispositive
of whether an asylum applicant has established a well-founded fear of perse-
cution). The absence of a specific finding, either endorsing or refuting that
the facts establish that the respondent’s fear of persecution was well founded
when he fled his country, should not be lost on the casual reader. The extent
to which the respondent’s fear was well founded when his colleagues were
murdered, the personal threat to him was received, and he fled, is the central
consideration in assessing whether, at the time of the Immigration Judge’s
adjudication, or this Board’s review of that adjudication, the respondent has a
well-founded fear of persecution. Huaman Cornelio v. Board of Immigration

 That determination is a critical element in our disposition of
the claim under the country conditions that exist in Peru today.
   The majority evades the issue of whether the respondent’s credible
account now or ever supported a well-founded fear of persecution as a matter
of law, and moves straightaway to the conclusion that, whatever fear the
respondent may reasonably have possessed when he fled Peru in September
1989, the passage of the time and a purported reduction in Shining Path influ-
ence have eviscerated his asylum claim. Using this technique, the majority
attempts to avoid ever having to confront the significance of the actual threats
received by the respondent, and minimizes or ignores the relevance of the


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political killings of his colleagues, and the actual murders that occurred in his
family.
   In addition, in the context of discussing past persecution, the majority con-
tends that the respondent “could not link definitively to the Shining Path” the
death threat that was painted on his house. I note, however, that all of the evi-
dence in the record before us, including the respondent’s position in the
APRA party, his association with family members and friends who were
killed by the Shining Path, and the timing of the desecration of his house in
this way, points to the Shining Path. Moreover, merely suggesting an alter-
nate explanation might exist says little about the reasonableness, in objective
terms, of the specific objective facts presented and the respondent’s fear that
this threat came from the Shining Path.
   The standard under which we operate is “reasonableness,” not “definitive-
ness.” See M.A. v. United States INS, 

, 311 (4th Cir. 1990) (en
banc). According to the principle of Occam’s razor, the best explanation of an
event is the one that is the simplest, using the fewest assumptions or hypothe-
ses. See Webster’s II New Riverside University Dictionary 813 (1994). Never-
theless, the majority concludes that the respondent failed to provide “‘the
“specific and objective facts” necessary to “support an inference of risk of
future persecution.”’” Matter of A-E-M-, supra, at 1160 (quoting Figeroa v.
INS, supra, at 80 (quoting Cardoza-Fonseca v. INS, supra, at 1453)). I do not
agree, finding this result to be contrary to the Supreme Court’s decision in INS
v. Cardoza-Fonseca, 

 (1987), and to our precedent. Matter of
Mogharrabi, 

 (BIA 1987), recognizing that the specific facts
contemplated were those that would support inferring a likelihood, and not a
probability or a certainty, of persecution. Not only do I disagree in terms of the
result reached by the majority, but I do not believe the majority has given this
asylum-seeker the fair and reasonable consideration to which he is entitled.

  II. DETERMINATION OF THE PRESENCE OF OBJECTIVE
     FACTS ESTABLISHING A WELL-FOUNDED FEAR OF
                    PERSECUTION
   That the respondent clearly harbored a well-founded fear of harm from
Shining Path guerrillas at the time that he fled his homeland arises from the
following objective facts: (1) the respondent was similarly situated to three
fellow party workers who were murdered by the Shining Path; (2) the respon-
dent received specific threats from Shining Path guerrillas, including a writ-
ten warning on his house that he would be “the next one”; and (3) two of the
respondent’s family members, who shared his opposition to the Shining Path,
were murdered by the anti-government guerrillas. Huaman-Cornelio v.
Board of Immigration 

 (distinguishing a genuine fear
based on unsupported hypotheses from evidence of a fear supported by con-
crete facts showing that fear to be objectively reasonable).

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   A. Politically Motivated Harm to Persons “Similarly Situated”
   The majority does not dispute that Shining Path guerrillas murdered three
of the respondent’s friends. Like the respondent, the individuals killed were
active members of the APRA political party and carried out duties similar to
those he carried out. The courts have held that in proving a well-founded fear
of persecution, an asylum applicant is not required to demonstrate that he
would be “singled out” for harm if he can establish (1) a pattern or practice of
persecution of persons similarly situated to the applicant on account of a pro-
tected ground and (2) that he is a member of and identifies with such persons
such that his fear of return is reasonable. See, e.g., Osorio v. INS, 

 (2d Cir. 1994); see also 

(b)(2)(I)(A), (B)
(1997). In addition, this Board has recognized, in decisions having
precedential authority, the concept that what has happened to persons simi-
larly situated has a bearing on the claim made by an asylum-seeker. Matter of
Mogharrabi, supra, at 446 (stating that where the country at issue has a his-
tory of persecuting people in circumstances similar to those of the asy-
lum-seeker, careful consideration should be given to that fact).
   Furthermore, the courts have stated that an asylum applicant’s fear of
retaliation from a guerrilla organization, owing to his vocal political opposi-
tion to the group, is well founded where he has received death threats and
where similarly situated persons have been murdered by the organization.
Sotelo-Aquije v. Slattery, 

 (2d Cir. 1994), rev’d on other
grounds, 

 (2d Cir. 1995); Osorio v. INS, supra, at 1029. The mere
fact that an applicant has not yet been physically harmed by the individuals or
group that he claims to fear, or has not had a face-to-face encounter with the
guerrillas, does not indicate that he lacks a well-founded fear of persecution.
Sotelo-Aquije v. 

; see also Turcios v. INS, 

 (9th Cir. 1987). So long as the applicant’s fear of persecution
upon return is reasonable, a grant of asylum is warranted. Sotelo-Aquije v.

.
   Instead of addressing directly the respondent’s circumstances, the major-
ity has raised jurisdictional and substantive concerns about the dissents’ cita-
tions to Gonzalez-Neyra v. INS, 

 (9th Cir. 1997), reh’g denied
and amended, 

, 

 (9th Cir. Jan. 6, 1998). Accord-
ing to the majority, the Ninth Circuit’s decision in Gonzalez-Neyra v. INS is
distinguishable “on the facts” from the instant case, because unlike Gonza-
lez-Neyra, “[t]he primary respondent in this case never had a face-to-face
encounter with his alleged persecutors. In fact, the only direct harm experi-
enced by the respondent was a painted threat on his house, allegedly by the
Shining Path.” Matter of A-E-M-, supra, at 1161.
   So, in the judgment of the majority, evidence of the guerillas’ single con-
frontation with a business man (who holds a political view but is not politi-
cally active) in which a threat is made to him and his property (but no

                                     1168
                                                                       Interim Decision #3338


immediate harm was incurred), as in Gonzalez-Neyra v. INS, supra, at
1294-95, now does constitute a reasonable likelihood of persecution.2 By
contrast, according to the majority, the invasion of the respondent’s property
and privacy resulting in a violent defacement of the respondent’s home with a
painted death threat, which followed the murder of three of his friends and
fellow APRA party workers by the Shining Path approximately 4 miles from
where they and he worked, does not constitute a reasonable likelihood of per-
secution because the face-to-face confrontation was not to his person, but to
his home. See Gonzalez-Neyra v. INS, supra; Sotelo-Aquije v. 

. In my view, such a distinction is patently unreasonable.
    The respondent has presented credible, compelling evidence that persons
to whom he is similarly situated were singled out and assassinated by the
Shining Path, owing to their political opposition to the terrorist group. The
respondent noted that his friends’ bodies were found only 4 miles from their
workplace, where he also was employed. Although the majority has declined
to squarely address the issue, the murders of the respondent’s three compatri-
ots constitute objective facts that indisputably support the respondent’s
assertion of a well-founded fear of persecution. Huaman-Cornelio v. Board
of Immigration 

 see also Osorio v. INS, supra; Sotelo-Aquije
v. 

 Furthermore, the killings indicate that the Shining Path has
the ability or inclination to punish the respondent for holding a political
belief, i.e., one supporting a different political alternative and opposing the
program of the Shining Path, which the guerrillas consider offensive. See
Matter of S-P-, 

 (BIA 1996); Matter of Mogharrabi, supra.
This evidence constitutes objective facts that support the respondent’s sub-
jective fears that he was and will be targeted by the Shining Path.

               B. Specific Threats Directed at the Respondent
   Not only is the respondent similarly situated to other persons who suffered
persecution at the hands of the Shining Path, he also has presented evidence
that he was individually targeted by the guerrillas for the same, fatal treat-
ment. Cf. Osorio v. INS, supra, at 1031 (holding that an asylum applicant
who establishes a pattern or practice of persecution of others similarly situ-
ated need not demonstrate that he would be singled out for persecution). Prior
to his departure from Peru, the respondent received a painted warning on his
  2 I note that the respondent in Gonzalez-Neyra v. INS, supra, never would have been in a

position to petition for review before the United States Court of Appeals for the Ninth Circuit
but for the fact that the Board, by a 2-1 majority, denied his claim that his refusal to comply with
extortion demands resulting in the threat to his life and property constituted persecution. See
Matter of T-M-B-, 21 I&N Dec.775 (BIA 1997) (holding that criminal extortion efforts do not
constitute persecution “on account of” political opinion where it is reasonable to conclude that
those who issued threats or inflicted harm on an asylum applicant were not motivated by their
victim’s political opinion); cf. id. (Rosenberg, dissenting) (discussing evidence of greater harm
inflicted on respondent following her declaration of political opposition to the NPA).

                                              1169
Interim Decision #3338


house that he was to be “the next one.” This threat followed the murders of
his friends and fellow party workers by the Shining Path, and also followed
the killings of his uncle and his cousin by the guerrillas. The majority finds
that, although “regrettable,” the painted threat was mere harassment which
does not rise to the level of persecution. Matter of A-E-M-, supra, at 1159. I
find their conclusion callous and dismissive, and find it “regrettable” that
they refuse to acknowledge that such a threat clearly supports the respon-
dent’s well-founded fear of persecution, even if it does not, standing alone,
constitute past persecution.
   In deciding whether a threat received from a purported persecutor sup-
ports an alien’s claimed fear of persecution, “[t]he essential element is that
the threat be such that a reasonable person would find it credible, based on
what that person has experienced and witnessed.” Sotelo-Aquije v. 

; see also Carranza-Hernandez v. INS, 

 (2d Cir.
1993); Huaman-Cornelio v. Board of Immigration 

 The
threat received by the respondent was chilling and unambiguous, and fol-
lowed unmistakable examples of the Shining Path’s ability to exact retribu-
tion against its political enemies. Given the murders of his uncle, his cousin,
and his three friends at the hands of Shining Path guerrillas, the respondent’s
apprehension that the warning he received would be carried out is clearly
well founded. As further evidence that he believed the Shining Path’s warn-
ing, he fled Peru soon after receiving the threat. Accordingly, I believe that
the majority has erred in minimizing the respondent’s plainly articulated fear
that if he returned to Peru, “[t]hey would kill me.”

          C. Politically Motivated Harm to Family Members
   The respondent’s asylum claim is buttressed by his asserted fear of perse-
cution owing to his affiliation with family members who were targeted and
murdered by the Shining Path. The respondent testified credibly that his
father had been an active member of the APRA party since he was a young
child and that his father participated in numerous party activities. Such
involvement led to the respondent’s family receiving threats from the
Shining Path guerrillas, because they were “strong supporters of the APRA
party and because [they] strongly supported and encouraged people to partic-
ipate in the electoral process, in spite of the threats from the Shining Path to
sabotage the elections and kill those who took part in the elections process.”
   The respondent testified further that his uncle and his cousin, both of
whom were police officers, were murdered by the Shining Path in their
off-duty hours—not as police personnel but as political opponents. The
majority’s negative presumption to the effect that “no evidence shows that
these family members were murdered for reasons other than their status as
police officers,” see Matter of A-E-M-, supra, at 1159-60, is unwarranted, as
the respondent testified to the contrary and the record contains no evidence

                                     1170
                                                                    Interim Decision #3338


indicating that the respondent’s uncle or cousin were assassinated owing to
their occupations. See Occam razor principle, supra. To the contrary, the evi-
dence presented suggests the respondent’s family members were murdered
during off-duty hours for reasons other than merely their status as police offi-
cers.3 Cf. Matter of Fuentes, 

 (BIA 1988) (holding that
“dangers faced by policemen as a result of that status alone are not ones
faced on account of” one of the five protected grounds). (Emphasis added.)
   Both this Board and the courts have recognized that the mistreatment of
family members has a bearing on the persecution suffered by an asylum
applicant. The treatment of the respondent’s uncle and cousin bolsters the
view that his fear is well founded. See Ananeh-Firempong v. INS, 

 (1st Cir. 1985) (concluding that evidence of mistreatment of one’s family
is probative of a threat to the petitioner); Office of the United Nations High
Commissioner for Refugees, Handbook on Procedures and Criteria for
Determining Refugee Status Under the 1951 Convention and the 1967 Proto-
col Relating to the Status of Refugees para. 43, at 13 (Geneva, 1992)[herein-
after Handbook] (stating that an applicant need not show a threat of
persecution based on personal experience, as evidence concerning relatives
may support the conclusion that fear is well founded);4 Ramos-Vasquez v.
INS, 

 (9th Cir. 1995) (finding that violence against friends and
family which creates a pattern of persecution closely tied to the petitioner
may establish a well-founded fear) (citing Ariaga-Barrientos v. INS, 

 (9th Cir. 1991)); see also Matter of Villalta, 

(BIA 1990) (holding that threats of harm to immediate family in part on
account of the applicant’s political activities, and the actual murder of his
brother, supported a well-founded fear of persecution).
   Just as the Shining Path attributed to the respondent’s father, uncle, and
cousin a political opinion antithetical to their cause, so too did the respondent
become an object of harm, because it was reasonable, given his affiliations
and activities, for the guerrillas to identify him as holding a political opinion
similar to his relatives. See Montecino v. INS, 

 (9th Cir.

  3 The respondent testified that his uncle “was found dead in the pick-up truck he was

driving.” According to the respondent, “[A]s a police officer, he was concern [sic] with caring
and looking after people, and the Shining Path had their eyes on these people.” Furthermore, he
testified that his cousin, who was the daughter of his murdered uncle, was found dead from
poisoning in the respondent’s home. He related that prior to her death, she had been “very
interested in finding out what happened how my uncle died.”
   4 The Handbook provides practical guidance to government officials as they are determining

refugee status under the Refugee Act of 1980, 

 Stat. 102, which was
enacted to bring United States refugee law into conformance with our international obligation
of nonrefoulement under the United Nations Convention Relating to the Status of Refugees,
July 28, 1951, 189 U.N.T.S. 137 and the United Nations Protocol Relating to the Status of
Refugees, Jan. 31, 1967, [1968] 19 U.S.T. 6223, T.I.A.S. No. 6577, 606 U.N.T.S. 267. INS v.
Cardoza-Fonseca, supra, at 436-37 (1987); Matter of Q-T-M-T-, 

 (BIA 1996)
(Rosenberg, dissenting); Matter of Rodriguez-Palma, 

 (BIA 1980).

                                            1171
Interim Decision #3338


1990); see also Hernandez-Ortiz v. INS, 

 (9th Cir. 1985)
(“The fact that there have been a number of threats or acts of violence against
members of an alien’s family is sufficient to support the conclusion that the
alien’s life or freedom is endangered.”). Furthermore, the respondent pro-
vided evidence that the guerrillas were aware of his views, could be aware of
his family ties, and actively pursued him after the deaths of his relatives. See
Matter of Mogharrabi, supra. The majority nevertheless refuses to accord
these facts any significance with respect to the respondent’s present situation.
To do so would mean the majority had to give the respondent’s claim more
credence.
   Finally, in the absence of any showing that other members of the respon-
dent’s family were known to hold political views antithetical to the Shining
Path, or were actively associated with his father, his uncle, or his cousin as he
was, the fact that certain members of the respondent’s family remained in
Peru without further harm is hardly determinative of the risk of persecution to
the respondent. In this case, the “family member” was the respondent’s wife,
who was not politically active and who would not necessarily be associated
with the respondent’s father, uncle or cousin, or with his co-workers. Cf.
Cuadras v. United States INS, 

 (9th Cir 1990).5

       III. CONSIDERATIONS OF COUNTRY CONDITIONS
           IN THE WELL-FOUNDED FEAR ASSESSMENT
   I find that the respondent’s credible account of his experiences leads to the
unavoidable conclusion, which was skirted by the majority, that he had an
objective, well-founded fear of harm at the hands of the Shining Path at the
time of his departure from Peru. See Matter of S-P-, supra; see also
Huaman-Cornelio v. Board of Immigration 

; Hand-
book, supra, paras. 196, 203-204, at 47-48 (providing that in cases where an
adjudicator is satisfied as to an asylum applicant’s general credibility, and
absent “good reasons to the contrary,” the applicant should be given the ben-
efit of the doubt with respect to his or her claim). The question thus becomes,
whether, since that time, conditions have changed to such an extent as to
eliminate the respondent’s well-founded fear. The majority concludes that


  5 In a telling example of doing too much only to do too little, the majority imposes the

principle, without qualification, that an asylum-seeker’s reasonable fear of persecution is
reduced when family members who remain behind are unharmed. In fact, Cuadras testified that
he and his family were farmers who left farming when guerrillas threatened him, his father, and
his brother if they continued to farm, but reported that although harassment stopped when he
went into the military and his brother went into construction, the guerrillas threatened to harm
Cuadras’ father and brother if they tried to begin farming again. It is under these circumstances
that the Ninth Circuit stated, “Cuadras’s claims are further undercut by the fact that his father
and brother have not been harmed, and they apparently still reside unmolested in El Salvador.”
Cuadras v. United States INS, supra, at 571.

                                             1172
                                                                        Interim Decision #3338


they have. The evidence of record, however, does not support their
conclusion.
    As noted, the majority’s denial of the respondent’s asylum claim is based
primarily on its finding that country conditions in Peru have changed to such
an extent that the respondent’s fear is not (or, is no longer) well founded. This
conclusion, however, rests upon the majority’s selective use of information
provided in two Department of State documents contained in the record. The
first is the Bureau of Democracy, Human Rights, and Labor, U.S. Dep’t of
State, Peru - Profile of Asylum Claims & Country Conditions (Jan. 1996)
[hereinafter Profile]. The second is a U.S. Dep’t of State, Peru Human Rights
Practices, 1995 (March 1996) [hereinafter Human Rights Report]. These
documents purportedly address relevant country conditions in Peru that have
a bearing on the reasonableness of the respondent’s claim. See Matter of
S-M-J-, 

 (BIA 1997).
    Upon examination, however, it becomes clear that the documents on
which the majority relies support the respondent’s claim of continuing
Shining Path intimidation, terror, and individual persecution at least as
strongly as they support the majority’s position that the guerrillas no longer
pose a serious threat.6 See Gonzalez-Neyra v. INS, supra. The Profile
provides:
   [D]espite its reduced capacity, the Shining Path is still mentioned most frequently as the
   abuser in asylum claims from Peru. Lacking widespread support, it has used terror against
   civilians regardless of their political allegiance as part of its overall strategy to create chaos
   and make the country ungovernable. During 1994, guerrilla victims included peasants,
   farmers, villagers, Indians, civil authorities and public servants, politicians, businessmen,
   development and human rights workers, educators and students, labor leaders, and religious
   workers as well as 40 members of the security forces.
Profile, supra, at 4 (emphasis added). The document notes further that
although the organization enjoys a reduced ability to “mount coordinated
attacks with large numbers . . . , the Shining Path retains the capacity to
launch destructive terrorist attacks even on well-protected targets. In urban
areas, it often uses car bombs and other explosive devices in its campaign of
terror.” Id. (emphasis added).
   In addition, the Human Rights Report frequently refers to the Shining
Path’s continuing ability to terrorize the populace and target its political ene-
mies for persecution and death. According to the report, although the guerril-
las’ overall influence has reduced in recent years, “where it continues to
operate, Sendero Luminoso [the Shining Path] continues to assassinate

  6 It should be noted that, although these are authoritative documents, provided pursuant to

the regulations and our holding in Matter of S-M-J-, 

 (BIA 1997), “there is
perennial concern that the [State] Department soft-pedals human rights violations by countries .
. . with which the United States wants to have friendly relations.” Gramatikov v. INS, 

 (7h Cir. 1997); see also Matter of T-M-B-, 

 (BIA 1997). (Rosenberg,
dissenting).

                                              1173
Interim Decision #3338


civilians who oppose it.” Human Rights Report, supra, at 4 (emphasis
added). In addition, “Many victims of Sendero Luminoso terrorism also
showed signs of torture. Credible accounts indicate that Sendero tortured
people to death by slitting throats, strangulation, stoning, and burning. Muti-
lation of the body was common.” Id. at 6 (emphasis added). According to the
Department of State, “Although both the army and Sendero Luminoso com-
mitted serious human rights abuses in Peru’s internal conflict, the latter was
responsible for many more heinous acts,” including detonating bombs in
public places, killing villagers at random, and forcible conscription of chil-
dren. Id. at 13 (emphasis added).
   Is this a report describing a group whose capacity and inclination for per-
secution has diminished in the sense it obviates or nullifies an otherwise valid
fear of persecution by a group outside the government’s control? See Matter
of Mogharrabi, supra. Notwithstanding overwhelming evidence, the major-
ity persists in its conclusion that, because the Shining Path’s influence and
ability to engage in widespread terror have diminished somewhat in recent
years, the respondent’s fear of being targeted upon his return is no longer
“reasonable.” Moreover, the majority intimates that the respondent could
evade the Shining Path and avoid future persecution simply by relocating
within his home country. Matter of A-E-M-, supra, at 1159. Bordering on the
ridiculous, their conclusions simply lack support.

                 A. Reasonableness of Respondent’s Fear
    “Reasonable” means, as qualified and quantified by the Supreme Court, at
least a 10 percent chance that an individual may be murdered, tortured, or
otherwise persecuted. INS v. Cardoza-Fonseca, supra. No reasonable person
would be concerned or comforted, while being persecuted and tortured, with
the fact that this Board may think, statistically, he might have escaped perse-
cution. The very low 10 percent chance factor, articulated by Justice Stevens
in INS v. Cardoza-Fonseca, supra, recognizes the fact of our international
obligations, as codified in domestic statutes, and anticipates that we should
afford, at least, a finding of eligibility for protection to all those who appear to
have a “well-founded fear.” See also Matter of H-, 

 (BIA
1996).
    The United States Court of Appeals for the Ninth Circuit recently reversed
and remanded a Board decision that dismissed a Peruvian respondent’s
appeal from the denial of his asylum claim, which was based on past persecu-
tion and a fear of future persecution by the Shining Path. See Gonzalez-Neyra
v. INS, supra. In its decision, the court criticized the Board, in part, for its reli-
ance on alleged “changed country conditions” evidence. The court observed
that the Board relied upon portions of a February 1995 State Department Pro-
file of Peru which “when reviewed as a whole, supports petitioner’s claim of
continued Shining Path insurrection in the country at least as strongly as it

                                        1174
                                                          Interim Decision #3338


supports the BIA’s position that conditions have changed for the better.” Id.
at 1295 (emphasis added).
    In its decision, the court made clear that an asylum-seeker claiming a
well-founded fear of persecution is required to show only that (1) he holds a
political opinion, (2) his political opinion is known to his persecutors, and (3)
the persecution has been or will be on account of his political opinion. Id. at
1296 (citing INS v. Elias-Zacarias, 

 (1992)). Like the applicant
in Gonzalez-Neyra v. INS, the respondent has provided credible evidence that
he held a political opinion antithetical to the Shining Path, that he expressed it
through his APRA party activities, and that the Shining Path threatened him
after he expressed his opinion. See Gonzalez-Neyra v. INS, supra, at 1296; cf.
Vera-Valera v. INS, 

 (9th Cir. 1997) (holding that the asylum
applicant, whose views and choices were purely to further economic benefit,
failed to show a connection between fear of persecution by the Shining Path
and political opinion). Thus, as argued, he clearly has established a
well-founded fear of persecution.
    Furthermore, the court in Gonzalez-Neyra criticized the Board’s refusal to
favorably exercise its discretion and grant the respondent’s asylum claim. As
in the present case, the Board’s refusal rested upon its assessment of the
“changed political climate in Peru” and the “unlikelihood of future persecu-
tion.” Gonzalez-Neyra v. INS, supra, at 1296-97. According to the reviewing
court, “[t]his hypothetical exercise of discretion rests on no firmer ground
than the BIA’s conclusion that petitioner was ineligible for asylum consider-
ation, and constitutes an abuse of discretion.” Id. at 1297.
    The Ninth Circuit’s conclusion is equally applicable to the country condi-
tion evidence upon which the majority relies in the instant case: “much of the
report supports petitioner’s claim that he has reason to fear similar persecu-
tion in the future.” Id. at 1296. Rather than taking that criticism and absorbing
it, this Board merely presses on to deny relief based on out-of-context state-
ments in supposedly authoritative Department of State reports. Once again,
the majority has issued its decision without regard to the actual conditions
that inhere in the respondent’s homeland.
    I find noteworthy the majority’s contention that “the instant case is con-
trolled by neither Gonzalez-Neyra v. INS, supra, nor the law of the Ninth Cir-
cuit, but rather by the law of the Fourth Circuit.” Matter of A-E-M-, supra, at
1161. Reservations about venturing outside the circuit in which a particular
case arises did not prevent a majority of the Board from stating recently in
Matter of O-D-, 

 (BIA 1998), a case arising in the jurisdic-
tion of the Court of the Appeals for the Second Circuit, that “[w]e find
instructive a decision of the United States Court of Appeals for the Ninth Cir-
cuit which upheld the Board’s adverse credibility finding in an asylum case.
Ceballos-Castillo v. INS, 

 (9th Cir. 1990).” Matter of O-D-,
supra, at 1082 (citing de Leon-Barrios v. INS, 

 (9th Cir. 1997),
for the same proposition).

                                      1175
Interim Decision #3338


    Closer to home, in this very decision, the majority cites to the decision of
the Ninth Circuit Court of Appeals in Cuadras v. United States INS, supra, at
571, as authority purportedly lending some significance to the fact that fam-
ily members who remained in Peru after the respondent fled were not harmed
during that time. Apparently, recourse to the authority contained in another
circuit’s decisions, no matter how applicable, is warranted only when such
decisions support the majority’s desired outcome. Given the recent precedent
decisions of the Board, transferable circuit court cases would be those in
which the reviewing court upholds the Board’s decision to deny relief—par-
ticularly asylum relief. See supra note 5.
    No matter what authority is relied on, the question remains, how great a
threat must the respondent face in order to demonstrate a present
well-founded fear? In support of its decision, the majority announces “that
the ‘dismantling of [the Shining Path’s] command and control structure’ has
been accompanied by a greater than 50 percent drop in the number of people
murdered by the organization.” Matter of A-E-M-, supra, at 5 (quoting Pro-
file, supra, at 4).
    Query what this statistic tells us about the respondent’s claim? For the
sake of argument, let us agree that, based on the death threat and the killing of
his similarly situated friends and co-workers, the respondent has presented
evidence establishing that at the time he left Peru in 1989 he faced at least a
60 percent chance of being targeted and killed by the Shining Path. Such a
presumption seems reasonable—even conservative—considering that his
uncle, his cousin, and three of his friends who were fellow APRA party activ-
ists all were murdered by the guerrillas, and he received a painted message on
his house warning that he was to be “the next one.” If the Department of State
is to be believed, then at present, approximately 8 years after the respondent’s
departure, his risk of being murdered has been reduced by half. Thus, follow-
ing the majority’s reasoning, the respondent currently faces only a 30 percent
chance of being killed by the Shining Path if he returns to Peru. This proba-
bility can be considered an example of the majority’s contention that “the
Shining Path’s ability to carry out retribution against its political opponents
has diminished recently.” Matter of A-E-M-, supra, at 1160.
    To qualify for asylum, though, the respondent is not required to show that
it is more likely than not that he would be harmed or killed. Cf. Stevic v. INS,

 (1984) (holding that eligibility for withholding of deportation
requires a “clear probability” of persecution). He must demonstrate merely
that he currently faces at least a 10 percent risk of persecution at the hands of
the Shining Path on account of a protected ground. See INS v.
Cardoza-Fonseca, supra, at 430-32. In their enthusiasm to provide eviden-
tiary support for a predetermined (negative) result, the majority “has strayed
from the central nature of the well-founded fear inquiry, which focuses on the
probability of the alien’s objective fears, not on the certainty of these fears.”
M.A. v. United States INS, supra, at 326 (4th Cir. 1990) (Winter, C.J.,

                                     1176
                                                                    Interim Decision #3338


dissenting); see also Cruz-Lopez v. INS, 

 (4th Cir. 1986)
(Winter, C.J., dissenting) (noting that in assessing the likelihood of persecu-
tion, “[c]ertainty is not possible, but certainty is not required”).

B. “Country-wide” Persecution and Reasonable Internal Relocation
    Although an asylum-seeker may have a claim of a well-founded fear of
persecution despite a reduction in the Shining Path’s force, the majority
seizes on an additional basis to deny asylum: the country-wide persecution
concept. But, this is yet another area governed by established law that
exposes and refutes the majority’s conclusions under the circumstances of
this case. See Guy S. Goodwin-Gill, The Refugee In International Law 42
(1983).7
    The standard for determining whether an asylum applicant can relocate to
a zone of safety in the country of persecution is “reasonableness.” As
addressed by the Handbook, supra, para. 91, at 21-22, for various reasons it
may be unreasonable to expect the asylum-seeker to move internally. The
internal relocation principle has been interpreted as being a limited restric-
tion, applicable to persons who “can genuinely access domestic protection
and for whom the reality of protection is meaningful.” J. Hathaway, The Law
of Refugee Status 134 (1991). Determinations of “reasonableness” include
consideration of likely financial or logistical barriers to internal relocation, as
well as the circumstances which fail to satisfy civil, political, and socioeco-
nomic human rights norms, or place the refugee in illusory or unpredictable
situations. Id.
    The respondent testified that he participated in both local and national
campaigns on behalf of APRA, a longstanding party known throughout Peru.
Hence, his political activism was not limited to the area where he lived, and
there is no evidence that he would be unknown to Shining Path guerrillas if he
relocated away from the area where he previously resided. Moreover, he tes-
tified that he was “well known” to the Shining Path owing to his leadership of
various sports groups. Such evidence refutes the majority’s contention that
the respondent has “not provided any evidence to suggest that [his] fear of
persecution from the Shining Path would exist throughout that country.”
Matter of A-E-M-, supra, at 1160.
    There is no presumption that the absence of affirmative evidence demon-
strating that the persecutor operates nationwide means there is no basis for
the victim to have a well-founded fear of persecution. Damaize-Job v. INS,

  7 There is no statutory, constitutional, or international requirement that an asylum applicant

demonstrate “country-wide persecution.” “[T]here is also no reason . . . why the fear of
persecution should relate to the whole of the asylum-seeker’s country of origin . . . .”
Goodwin-Gill, supra, at 42 (1983); see also Sarah Ignatius, Asylum: Country-Wide
Persecution, 21 Nat’l Immigr. Project of the Nat’l Law. Guild, Inc., Immigr. Newsletter, No. 1
(1993).

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 (9th Cir. 1986); cf. Matter of R-, 

(BIA 1992) (suggesting that the absence of evidence that there is persecution
country-wide means that there is not persecution country-wide). Even were
there some basis to conclude that persecution would be confined to a local
area or when the persecutor is a nongovernmental force, consideration must
be given to whether that authority has the inclination and ability to persecute
the alien throughout the home country. Matter of H-, supra, at 349 n.6; see
also Singh v. Moschorak, 

 (9th Cir. 1995);
Quintanilla-Ticas v. INS, 

 (9th Cir. 1986) (finding the
applicant ineligible where the danger of persecution was limited to a single
village); Matter of Fuentes, supra; Matter of V-T-S-, 

 (BIA
1997) (Rosenberg, dissenting); Matter of T-M-B-, 

 (BIA
1997) (Rosenberg, dissenting); Matter of C-A-L-, 

 (BIA
1997) (Rosenberg, dissenting).
    With respect to internal relocation, the Profile reports that although “Peru
is a large, rugged country, and the guerrillas operate with relatively unsophis-
ticated communications[,]” and therefore internal relocation “is available to
many applicants[,]” it also is true that “the police and military are spread too
thinly to protect every one threatened by the guerrillas.” Profile, supra, at 6.
Owing to the Shining Path’s continued presence in Peru, and the breadth of
the guerrilla efforts to destabilize the government, internal relocation within
Peru is not a viable option for the respondent. See Matter of C-A-L-, supra
(discussing internal relocation); Handbook, supra, para. 91, at 21-22.
    Although the Shining Path is a nongovernmental force, the record reflects
that the respondent is specifically known to them. There is no basis to infer
that the guerrillas would be either unable or disinclined to target and perse-
cute the respondent if he relocated. As noted, he was involved in political
activities on both a local and national level, and he was recognizable as a
leader of various sports groups. The guerrillas methodically targeted and
murdered his friends and family members and unambiguously conveyed
their resolve by leaving a written threat, on his own house, that he would be
next. In light of such evidence, I find no reason to believe that the Shining
Path’s interest in the respondent was confined to a local area. See
Damaize-Job v. INS, supra. I also find no reason to conclude that he would
not be targeted merely because of the passage of time or the reduction in
Shining Path forces.

     IV. CONCLUSION: THE RECORD SUPPORTS THE
  RESPONDENT’S CLAIM AND CONTAINS INSUFFICIENT
    EVIDENCE TO SUPPORT THE DENIAL OF RELIEF
   The record does not contain evidence to support the denial of relief by the
Immigration Judge, which is upheld by the majority. To support the conclu-
sion that the respondent does not have a well-founded fear of persecution, the

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majority’s decision must reflect consideration of evidence that the Shining
Path killed the respondent’s friends and members of his family before them,
and must address the sign painted on his house that he would be next under
the “reasonableness” standard. See Universal Camera Corp. v. NLRB; 

 (1951) (holding that the “substantial evidence” standard has
been understood to mean that the adjudicator’s conclusions are expected to
take into account and reflect in his decision, not only consideration of those
facts in the record that support the conclusion, but evidence in the record that
detracts from it).
   As the Ninth Circuit observed in Gonzalez-Neyra v. INS, supra:
   [T]he majority of the BIA, and the immigration judge, overlooked the uncontradicted evi-
   dence that petitioner’s life and business had been threatened only after he expressed his
   political disagreement with the guerrilla organization, and only after he made clear that his
   refusal to make further payments was on account of that disagreement.
   We conclude that any rational fact finder who took that evidence into account, as the BIA
   was required to do in this case, would be compelled to reach a contrary conclusion . . . .
Id. at 1294 (emphasis added).
   The threats received by the respondent, and the murder of his co-workers,
do not support the majority’s conclusion, but detract from it. This evidence
supports the conclusion that, given his known political activity, past experi-
ences, and current conditions in Peru, a reasonable person would fear perse-
cution. In light of his prior activity as an active APRA supporter and visibility
as a local community leader, neither the passage of time nor any incremental
change in conditions in the country undermines the undeniable fact that this
respondent was threatened with persecution and death on account of his
political affiliations and activities. The record compels the conclusion that
the respondent currently faces at least a 10 percent likelihood that he will be
persecuted by Shining Path guerrillas if he returns to Peru. See INS v.
Cardoza-Fonseca, supra, at 430-32. Although the evidence of record from
the Department of State indicates that the Peruvian Government has weak-
ened the Shining Path, this evidence also reveals that “the Shining Path
retains the capacity to launch destructive terrorist attacks even on
well-protected targets,” and still wages a “campaign of terror.” Profile,
supra, at 4. In light of this and other evidence of record, I cannot but conclude
that a reasonable person in the respondent’s situation has a well-founded fear
of being persecuted because of his political opinion if he returns to Peru. INS
v. Cardoza-Fonseca, supra, at 430-32; Matter of Mogharrabi, supra. I would
grant the respondent’s asylum claim.




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