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Briones v. Immigration and Naturalization Service

March 20, 1998

TOMAS TABISULA BRIONES, PETITIONER,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.



Petition for Review of the Decision of the Board of Immigration Appeals Submitted March 13, 1998 San Francisco, California*

INS No. A72 132 035

Before: Harlington Wood, Jr.,** Cynthia Holcomb Hall, and Diarmuid F. O'Scannlain, Circuit Judges.

The opinion of the court was delivered by: Judge O'Scannlain

FOR PUBLICATION

SUMMARY

O'SCANNLAIN, Circuit Judge:

In a companion case, Borja v. INS, No. 97-70272, we considered whether a Philippine citizen is entitled to asylum in the United States for treatment inflicted by the New People's Army. In this case, we examine whether service as an informant for the Philippine military affects asylum eligibility.

I

Tomas Tabisula Briones was a professional artist in the Philippines who earned his living by painting landscapes throughout his country. His work took him to remote areas, which included hideouts of the New People's Army ("NPA"), a communist faction which actively opposes the Philippine government. Through his travels, he was able to obtain information about the NPA. Because of his access to such information, Briones was recruited in June 1990 by his cousin, Lieutenant Rey Briones, a member of the Philippine constabulary, to serve as a confidential military informant. Briones testified he was never paid for his services but agreed to serve as an informant because of concerns about the damage the NPA had caused to his hometown of Santo Domingo.

Briones presented testimony describing three occasions on which he provided information about NPA activities to his cousin. The information he provided purportedly: (1) resulted in a local military victory over the NPA in October 1990; (2) alerted the military to a planned NPA raid on Santo Domingo in November 1990, and (3) led to the capture of an important NPA leader in August 1991.

Sometime after Briones provided the foregoing information, his cousin showed him a military intelligence report which listed the people whom the NPA planned to assassinate. Briones testified that his name appeared seventh on the list. His cousin told him that the NPA knew he had informed against them. Fearing for his life, Briones and his family agreed he should move from Santo Domingo to Manila, the capital of the Philippines.

Before Briones moved to Manila, however, his wife discovered a package on their doorstep wrapped in black ribbon and marked with a communist symbol.*fn1 Briones initially testified that nothing but his name was written on the package. He later testified, however, that there was also a note inside the box which stated that he would "be killed next." In any event, Briones believed the package to be an NPA death threat. Consequently, he left Santo Domingo for Manila that day.

While in Manila, Briones claimed to have lived with various relatives and friends for a period of three months.*fn2 He stayed with no one continuously for more than a few days for his own protection. He did, however, perhaps surprisingly, maintain a high profile during this time, even attending an exhibition of his artwork "the whole month of December." Despite his relative prominence, Briones had no encounters or incidents with the NPA the entire time before he left for the United States.

In April 1992, Briones entered the United States as a visitor for pleasure and to participate in an art exhibition in Sacramento, California. Although authorized to stay in the country only until October 1992, he has yet to leave. In April 1993, Briones requested asylum and withholding of deportation under 8 U.S.C. SS 1158 and 1253(h), respectively.*fn3 Briones based his application on his fear of future persecution on account of political opinion. An immigration Judge denied the requests, and the Board of Immigration Appeals ("BIA") affirmed. The BIA based its decision on determinations that Briones's fear was not countrywide, that the feared persecution was not "on account of" any of ...


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