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Bolante v. Mukasey

August 27, 2008


Petition for Review of an Order of the Board of Immigration Appeals. No. A95-719-764.

The opinion of the court was delivered by: Bauer, Circuit Judge


Before BAUER, KANNE and WILLIAMS, Circuit Judges.

Petitioner Jocelyn I. Bolante, a native and citizen of the Philippines who was detained while attempting to enter the United States without a valid visa, sought asylum and withholding of removal. The Immigration Judge ("IJ") denied him relief, and the Board of Immigration Appeals ("BIA") affirmed. He now appeals that determination. Because we find that Bolante has not demonstrated a well-founded fear of persecution upon returning to the Philippines, we affirm the decision of the IJ as supplemented by the BIA.

In 2001, Bolante was appointed to serve as Undersecretary for the Philippines Department of Agriculture by the current president of the Philippines, Gloria Macapagal-Arroyo. Bolante remained in that position until 2004, when he resigned to take a position on the Board of Directors of Rotary International. Following his resignation, the Senate of the Philippines formed a committee to investigate charges of corruption within the Department of Agriculture. This Committee alleged that President Arroyo diverted funds from the Department to fund her re-election committee and investigated claims that Bolante took direction from Arroyo to divert the funds; the Committee eventually issued a report on the corruption scandal, dubbed by the media the "Fertilizer Scam." The report found that Bolante was the main architect of a diversion of funds and recommended that he face criminal charges. The Committee further recommended that other members of President Arroyo's government, including Felix Montes, the Assistant Secretary of Agriculture, be criminally charged.

During the Senate Committee's investigation, Bolante was subpoenaed to testify. After receiving the subpoena, Bolante left the Philippines for a series of Rotary International meetings. He has since refused to testify before the Senate Committee, and the Senate has issued a war-rant for his arrest. Media reports have indicated that several members of the Senate have set a bounty for Bolante's capture at 200,000 Philippine pesos.

Bolante was admitted to the United States as a non-immigrant visitor on January 2, 2006, and remained in the country until June 2006, when he left for further meetings in other countries. He attempted to return to the United States on July 7, 2006. Unbeknownst to Bolante, the United States Embassy in Manilla had revoked his visa. He was denied entry into the United States and detained by authorities for non-possession of a valid visa. Bolante has remained in custody pending our review.

On September 27, 2006, Bolante filed an application for asylum and withholding of removal with the Immigration Court. At the hearing on the merits of his claim before the IJ, four witnesses, including Bolante, testified.

Bolante testified that the entire investigation into the Fertilizer Scam amounts to nothing more than vindictive political gamesmanship. According to Bolante, the party in opposition to President Arroyo has engaged in an all-out campaign to overthrow the Arroyo government. After two attempts to impeach President Arroyo, the opposition party switched tactics and turned to frivolous investigations of lesser targets, such as Bolante, with close affiliations to the President but without testimonial immunity given to cabinet members. Bolante has consistently denied any wrongdoing in the Fertilizer Scam, and has challenged the validity of both the Senate Committee's investigation and the warrant for his arrest in the Philip-pine courts.

Bolante's son, Owen, flew from the Philippines to testify at the hearing. He stated that he and his family have received numerous threats, including a threatening text message. One such warning involved a threat of kidnap-ping. He further stated that he and his family have seen suspicious cars near their home. Bolante's son could not state who threatened him or elaborate on how the threats related to his father.

Montes, the Assistant Secretary of Agriculture mentioned in the Senate Committee's report, testified before the IJ that President Arroyo's enemies are using Bolante as a tool to get to the President. He also testified that Bolante's life would be in certain danger if he returned to the Philippines, but could not give specific details about the threat, and used equivocal words such as "might," "could," and "may" to describe the harmful consequences of Bolante's return. For his own part, Montes has testified before the Senate Committee on the Fertilizer Scam, even though he had immunity from doing so. He has since kept his position in the Department of Agriculture and has not been arrested or harmed.

Finally, Adolph Estrada, a retired Major General with the Philippine Air Force, testified about the nature of the danger facing Bolante upon his return. Though Estrada insisted that Bolante would be harmed, he, like Montes, could not give any specifics on the nature, source, or motivation of the threat facing Bolante.

On February 9, 2007, the Immigration Judge ("IJ") denied Bolante's application for asylum. The IJ found that, though Bolante was credible, he failed to meet his burden of past persecution or well-founded fear of future persecution. The judge noted that the vague threats and opaque predictions of harm were insufficient to establish Bolante's claim. The judge further found that the Senate Committee, by issuing the subpoena and warrant, sought to investigate and eventually prosecute Bolante for a violation of the Philippine law, and not persecute him on account of political opinion or membership in a particular social group. In addition, the IJ held that because Bolante failed to meet the lower burden of proof of asylum, he could not meet the higher standard for with-holding of removal. On June 25, 2007, the Board of Immigration Appeals ("BIA") affirmed the IJ's decision and issued its own decision and order. This timely appeal followed.

Bolante argues that we should reverse because he has met the standards for both asylum and withholding of removal. He argues that he has a well-founded fear of persecution upon returning to the Philippines, and that the central reasons for the persecution were on account ...

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