Case Number: 95719764

UNITED STATES DEPARTMENT OF JUSTICE EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

THE IMMIGRATION COURT SAN PEDRO, CALIFORNIA

In re: Jocelyn I. Bolante

JOINT AMICUS BRIEF (for a denial of the application for asylum and restriction to removal)

Prof. Merlin M. Magallona, Dr. Raul C. Pangalangan,

Prof. H. Harry L. Roque Jr., and Attorney Romel Regalado Bagares

of the Philippine Bar

Roque and Butuyan Law Offices Antel 2000 Corporate Centre

No. 121 Valero St., Salcedo Village Makati City, Metro Manila

Philippines 1200 (02)-8874445

administration@roquebutuyan.com

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ...............................................................................................................3

PARTIES FILING THE JOINT AMICUS BRIEF

………………………………………………………………………..7 STATEMENT OF THE FACTS

...............................................................................................................8 ARGUMENT ………………………………………………………………………10 DISCUSSION

.............................................................................................................17 CONCLUSION ………………………………………………………………………38 SIGNATURES ………………………………………………………………………39

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-- TABLE OF AUTHORITIES --

American Cases

United States Supreme Court Cases INS v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987) ………………………………………………………………………30 INS v. Elias-Zacarias, 502 U.S. 478, 484 (1992). …………………………………………………………………27,29

United States Federal Circuit Cases Agbuya v. INS, 241 F.3d at 1229 (9th Cir. 2001) ………………………………………………………………………30 Cuadras v. INS, 910 F2d 567 (9th Cir. 1990) ………………………………………………………………………29 De Brenner v. Ashcroft, 388 F.3d 637. (8th Cir. 2004) ………………………………………………………………………29 Novoa-Umania v. INS, 896 F2d 1 (1st Cir. 1990) ………………………………………………………………………29 Ustyan v. Ashcroft, No. 02-9596, U.S. App. LEXIS 6814, (10th Cir., Apr. 8, 2004). …………………………………………………………………….28

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Wiransane v. Ashcroft, No. 02-9555, 2004 U.S. App. LEXIS 8259 (10th Cir., Apr. 27, 2004).

………………………………………………………………..19,20, 27

Agency Cases In re Acosta, 19 I. & N. Dec. 211, 215, 222 (B.I.A. 1985) ……………………………………………………………………….30 In re Mogharrabi, 19 I. & N. Dec. 439 (B.I.A. 1987) ……………………………………………………………………30,31 In re S-M-J, 21 I. & N. Dec. 722, 724 (B.I.A. 1997) ……………………………………………………………………….30 Philippine Case

Senate of the Philippines, et al., v. Eduardo Ermita, et al. G.R. No. 169777, April 20, 2006. ………………………………………………………………………13 Officials Reports of acts of Philippine governmental bodies

Comm. on Accountability of Public Officers and Investigations and Agriculture and Food, S. J. Rept. No. 54 13th Cong., 2nd Reg. Sess. (2006) ………………………………………………………….11,14,15,16,24 Report on the Audit of the P728 Million GMA Farm Input Fund, Commission on Audit (COA) Mar. 29, 2006)

…….………………………………………………………………23

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Books

G. GOODWIN-GILL, THE REFUGEE IN INTERNATIONAL LAW 173-196 (2nd ed., 1996). ………………………………………………………………………25 Dean Raul C. Pangalangan, Philippine Obligations Under Customary and Treaty Law on Refugees and Asylum Seekers, in THE RIGHTS OF REFUGEES AND ASYLUM SEEKERS: FOCUS ON THE PHILIPPINES 22 (Gaite, ed., 1996).

………………………………………………………………………24 UN HANDBOOK ON PROCEDURES AND CRITERIA FOR DETERMINING REFUGEE STATUS, HCR/IP/4/Eng/REV.1 Reedited, Geneva, January 1992, UNHCR 197 …………………………………………………………………….34 Statutes

American

8 U.S.C. § 1158(b)(1) …………………………………………………………………..20,21 8 U.S.C. § 1101(a)(42)(A) ………………………………………………………………………20 8 U.S.C. § 208.20 ………………………………………………………………………24 8 U.S.C. § 208 (b)(2)(iii) ………………………………………………………………………25 8 U.S.C. § 241(b)(3)(A) ………………………………………………………………………26 8 U.S.C. § 1231(b)(3)(A) ……………………………………………………………………...26

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Philippine Rep. Act No. 3019 (1960), the Anti-Graft and Corrupt Practices Act ……………………………………………………………………...16 Rep. Act No. 7080 (1991), the Plunder Law …………………………………………………………………...…16 Com. Act No. 3815 (1930), the Revised Penal Code …………………………………………………………………..…16 International Conventions 1951 Refugee Convention Relating to the Status of Refugees 189 U.N.T.S. 150, entered into force April 22, 1954. ………………………………………………………………………26 1967 Protocol Relating to the Status of Refugees, 606 U.N.T.S. 267, entered into force Oct. 4, 1967. ……………………………………………………………………...19

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PARTIES FILING THE JOINT AMICUS BRIEF

1. Petitioners seeking allowance from this Honorable Court to file

this consolidated amicus brief are members in good standing of

the Philippine Bar and are officially connected with the

University of the Philippines Law Center- Institute of

International Legal Studies (UPLC-IILS) in the following

capacities:

1.1 Prof. Merlin M. Magallona is a former dean of the

University of the Philippines College of Law, an academic

unit attached to the Law Center; a former director and

incumbent senior fellow of the Institute and professor of

constitutional law and international law. He is also a former

undersecretary of the Philippine Department of Foreign

Affairs;

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1.2 Dr. Raul C. Pangalangan , is a former dean of the University

of the College of Law; a senior research fellow of the

Institute; and professor of constitutional law and

international law;

1.3 Prof. H. Harry L. Roque Jr is incumbent director of the

Institute and professor of constitutional law and

international law;

1.4 Attorney Romel Regalado Bagares is a research fellow of the

Institute, specializing in international humanitarian and

human rights law.

2. Petitioners are filing this brief under Rule 29 of the Federal

Rules on Appellate Procedure to bring to the attention of this

Honorable Court the true circumstances surrounding the

applicant, Mr. Jocelyn Bolante’s flight from his home country,

the Philippines, to the United States, as they are in special

position to know such circumstances; specifically, to the fact

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that the applicant fled his country under pain of criminal

prosecution on account of his involvement as a top official of

the Philippine Department of Agriculture in a corruption

scandal that has likewise implicated the President of the

Philippines, Mrs. Gloria Macapagal-Arroyo; such fact

disqualifies him from applying as a refugee eligible for asylum

status and for the right of non-refoulement, both under US and

international law; and to wait and serve this Honorable Court’s

convenience as it may elect to avail itself of the service of the

Petitioners. In accordance with Rule 29(d) of the Federal Rules

of Appellate Procedure, Petitioners also request that the

Honorable Court grant them permission to file an amicus brief

longer than the allowed length under the Rules, considering the

special circumstances of this case.

3. As academics in the field of international law and as citizens of

the Philippines, the Petitioners have an interest in the proper

administration of asylum law with respect to the applicant,

considering that a grant of Mr. Bolante’s request would defeat

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the demands and ends of justice in his home country, where he

is being sought for direct complicity in a corruption scandal

that has rocked the highest public offices in the Philippines,

including the Office of the President. Also, his request for

asylum constitutes an abuse of a right that should not be

countenanced by any Receiving State under international law.

STATEMENT OF FACTS

4. Prior to his request for asylum, the applicant, Mr. Jocelyn

Bolante occupied a powerful government position and enjoyed

the Philippine President’s protection and favor. While serving

as undersecretary for finance and operation of the Philippine

Department of Agriculture, he also concurrently occupied the

following positions: acting chairman, National Irrigation

Administration; acting chairman, Livelihood Corporation;

acting chairman, Strategic Investments and Development

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Corporation; director, National Power Corporation, and

director, Land Bank of the Philippines.1

5. He has also been identified as a close associate of the

President’s husband, Mr. Mike Arroyo.

6. It is in connection with Mr. Bolante’s duties as undersecretary

of the agriculture department that a joint legislative inquiry by

the Philippine Senate’s committees on Accountability of Public

Officers and Investigations (Blue Ribbon committee) and on

Agriculture and Food has been opened on a corruption scandal

in which he and Philippine President, Mrs. Gloria Macapagal-

Arroyo had been implicated.

7. Mr. Bolante, as an undersecretary for finance and operation of

the Philippine Department of Agriculture, masterminded the

scam that benefited the candidacy of Mrs. Arroyo in the last

1 Comm. on Accountability of Public Officers and Investigations and Agriculture and Food, S. J. Rept. No. 54 13th Cong., 2nd Reg. Sess. (2006), at 19.

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presidential elections, according to a report of the Philippine

Senate on the election campaign fund corruption case.

8. The P728 million peso-GMA fertilizer fund scam2 – as it is now

known in the Philippines – has been widely reported in

Philippine media. The corruption scandal has also been made

the subject of an impeachment complaint now pending with the

Philippine House of Representatives against Mrs. Arroyo.

9. The legislative inquiry was prompted by a series of

investigative reports by the Philippine Center for Investigative

Journalism (PCIJ) which traced “a trail of nearly P 3 billion

released by the Department of Agriculture during the 2004

presidential campaign” – funds originally intended to subsidize

poor farmers in the countryside. 3

10. The PCIJ reported that “big chunks of that money were

diverted to congressmen, mayors and governors who were 2 Approximately US$ 5.4 million at current exchange rates in the Philippines. 3See http://www.pcij.org/stories/2005/farmfunds.html <last visited, July 25, 2006>

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allies of President Arroyo,” and that “a portion of the money

mysteriously ended up in the hands of obscure private

foundations and companies” and eventually “siphoned to the

Arroyo campaign.”4

11. Mr. Bolante was first summoned to appear before the Senate

committee hearings on the fertilizer fund scam on October 6,

2005. But he did not show up. He ignored subsequent

invitations, claiming protection from legislative inquiry under

Executive Order 464 issued by Mrs. Arroyo for that purpose.

(The Philippine Supreme Court would subsequently declare the

Executive Order unconstitutional).5

12. In fact, on December 12, 2005, the day Mr. Bolante was

supposed to testify before the Philippine Senate on the fertilizer

4 Ibid. 5Senate of the Philippines, et al., v. Eduardo Ermita, et al., G.R. No. 169777, April 20, 2006.

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fund scam, the applicant fled the same morning for the United

States of America, evading the Senate hearing.6

13. But following six public hearings heard over a span of six

months, a joint committee report on the legislative inquiry

would say thus:

In the fertilizer fund scam, Undersecretary Bolante is the declared architect. He designed it. He was its brains. It was he who worked with the Department of Budget and Management (DBM) for the immediate release of the fund. It was [he] who prepared and submitted [the] names [of those who were to supposedly receive fertilizer and other agricultural subsidies from the government]. It was Undersecretary Bolante who sent letters to various congressmen and local officials informing them of the availability of funds under the Department of Agriculture’s GMA project. It was [he] who directed these officials to coordinate with his office to discuss all the requirements to facilitate [the release] of the said project fund. Undersecretary Bolante, in the words of his then Chief of Staff, Ibarra Poliquit, had a hand in determining how the GMA Project fund works and will be spent. And that although the DA has a list of officials whose “proposed projects” were to be funded by the fertilizer fund,

6 Comm. on Accountability of Public Officers and Investigations and Agriculture and Food, S. J. Rept. No. 54 13th Cong., 2nd Reg. Sess. (2006), at 4.

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Bolante was given the authority to drop them and replace them with others.7

14. The applicant, along with two other officials, is now the subject

of a contempt order of the Philippine Senate for his refusal to

testify in the legislative inquiry on an alleged illegal

disbursement of public funds – a sizeable portion of which is

believed to have been sourced from official US government aid

– for the reelection campaign of President Gloria Macapagal-

Arroyo in 2004.

15. Thus, the Senate Report says on this matter:

Although this is the Final Committee Report, the fertilizer fund scam [investigation ] will never be closed without the testimony of its brains and implementor – Jocelyn Bolante. Thus the order of contempt against Jocelyn Bolante must be enforced…. The rationale for the enforcement of contempt order against Bolante….[is] anchored on [his] continuous defiance of the Senate committees….Flight strongly

7Comm. on Accountability of Public Officers and Investigations and Agriculture and Food, S. J. Rept. No. 54 13th Cong., 2nd Reg. Sess. (2006), at 19.

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indicates guilt and betrays the existence of a guilty conscience. For the wicked fleeth even when no man pursueth, whereas the righteous are brave as a lion.8

16. The same Report recommended the filing of corruption

charges against Mr. Bolante and his cohorts at the

Department of Agriculture on account of the “strong

probable criminal culpability” established by the

investigation and at the same time said that the President,

Mrs. Arroyo, should be held accountable for “the

mismanagement of the fertilizer fund…”9

8 Comm. on Accountability of Public Officers and Investigations and Agriculture and Food, S. J. Rept. No. 54 13th Cong., 2nd Reg. Sess. (2006), at 35-36. 9 Id., at 33. The Report said Mr. Bolante may be liable under the following Philippine Criminal Statutes: Rep. Act No. 3019 (1960), the Anti-Graft and Corrupt Practices Act ;Rep. Act No. 7080 (1991), the Plunder Law;Com. Act No. 3815 (1930), the Revised Penal Code

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ARGUMENT

A. He being a fugitive from Philippine justice being sought for his complicity in a corruption scandal in which he played a key role as a ranking official of the Philippine Department of Agriculture, the applicant, Mr. Jocelyn I. Bolante, does not fall under the meaning of a “refugee” eligible for a grant of asylum under both US law and jurisprudence and international law.

B. The applicant has not shown any proof of a well-founded

fear of prosecution for his political opinion as to qualify him to the right of non-refoulement under international law, or to the right to restriction on removal under US law.

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DISCUSSION

A. He being a fugitive from Philippine justice being sought for his complicity in a corruption scandal in which he played a key role as a ranking official of the Philippine Department of Agriculture, the applicant, Mr. Jocelyn I. Bolante, does not fall under the meaning of a “refugee” eligible for a grant of asylum under both US law and international law.

17. Under the Immigration and Nationality Act (INA) asylum and

restriction on removal are the two available means of relief to

an alien who fears persecution if returned from the

United States to a particular country. 10 "A grant of asylum

permits the alien to remain in this country; a restriction on

10 Wiransane v. Ashcroft, No. 02-9555, 2004 U.S. App. LEXIS 8259 at *2 (10th Cir., Apr. 27, 2004).

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removal forbids removal of the alien to the country where

persecution may occur."11

18. Section 1101(a)(42)(A) defines a “refugee” as

any person who is outside any country of such person’s nationality or in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion ...12

19. Thus, in order to be eligible for asylum, an alien must first

establish his status as a refugee.13 To do so, he must show that

11 Id. 12 A restatement of the definition of a “refugee” under international law:

Any person who is outside the country of his nationality, or if he has no nationality, the country of his former habitual residence, because he has or had a well-founded fear of persecution by reason of his race, religion, nationality, or political opinion and is unable, or because of such fear, is unwilling to avail himself of the protection of the government of the country of his nationality, or, if he has no nationality, to return to the country of his former habitual residence. - The 1967 Protocol Relating to the Status of Refugees 606 U.N.T.S. 267, entered into force Oct. 4, 1967. [emphasis supplied].

13 8 U.S.C. § 1158(b)(1).

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he "is unable or unwilling to return to, and is unable or

unwilling to avail himself . . . of the protection of, [his country

of origin] because of persecution or a well-founded fear of

persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion."14

20. Aliens who raise asylum claims upon a well-founded fear of

future persecution "must show both a genuine, subjective fear

of persecution, and an objective basis by credible, direct, and

specific evidence in the record, of facts that would support a

reasonable fear [of] . . . persecution."15

21. The Attorney General may grant asylum to an applicant “if the

Attorney General determines that such alien is a refugee within

the meaning of section 1101(a)(42(A).” 16

14 8 U.S.C. § 1101(a)(42). 15 Wiransane, 2004 U.S. App. LEXIS 8259 at *5 (internal quotation marks omitted). 16 8 U.S.C. § 1158(b)(1).

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22. Under applicable US law, Mr. Bolante does not at all qualify as

a refugee as to receive a grant of asylum.

23. Before coming to the United States, he was a ranking official of

the Philippine government - an incumbent one – and as such,

held powers that granted him great discretion on the

disbursement of public funds.

24. According to an official investigation conducted by the

Philippine Senate, he was instrumental in the perpetuation of

election fraud in the last Philippine Presidential elections in

2004, in which the main beneficiary was the incumbent

President, Mrs. Gloria Macapagal-Arroyo. The fraud involved

the use of public funds – the equivalent of some US $ 5.4

million according to current exchange rates – for electioneering

purposes.

21

25. The applicant fled the Philippines for fear that he will be

prosecuted – not persecuted - over criminal activities

committed in relation to the last Presidential elections. His

testimony on the fertilizer fund scam was being sought by the

Philippine Senate when he flew out of the Philippines for the

United States.

26. Mr. Bolante’s involvement in the public fund disbursement

anomaly is well-documented. The anomaly was also borne out

in an official audit of the program made by the Philippine

Commission on Audit, a constitutional body that is the

Philippine equivalent of the American Government

Accountability Office (GAO).17

27. In fact, after the scam was brought into the open, a citizen-led

impeachment complaint was filed against his principal, Mrs.

Arroyo for her own complicity in it. The complaint was thrown 17See Report n the Audit of the P728 Million GMA Farm Input Fund, Commission on Audit (COA) March 29, 2006.

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out of the Philippine House of Representatives by her allies

there. But this year, a new impeachment complaint was filed –

one that once again included the fertilizer fund scam as a

ground for the President’s removal from office.

28. Here is what the Senate legislative inquiry established further

about his involvement in the fund anomaly:

In the investigations conducted, from the testimonies of witnesses who appeared before the committees and the records of the Commission on Audit, there appears (to be) massive misappropriation, diversion of funds, malversation of public funds and raids of farmers’ money. In the case of Mr. Bolante, testimonies to the effect that he received, directly or indirectly, commission and percentage of pecuniary benefit from suppliers in connection with the contracts and transactions pertaining to the fertilizer fund have been adduced during the public hearings.18

29. It is quite obvious that the applicant is only resorting to a

request for asylum to forestall criminal prosecution against

18 Comm. on Accountability of Public Officers and Investigations and Agriculture and Food, S. J. Rept. No. 54 13th Cong., 2nd Reg. Sess. (2006), at 33.

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him, for which reason he cannot be classified as a “refugee”

needing the protection of the Receiving State.

30. The true circumstances surrounding his flight from the

Philippines to the United States show that “there are serious

reasons for believing that [the applicant] has committed a

serious nonpolitical crime outside the United States prior to the

arrival of the [applicant] in the United States.”19 For this reason

his applicant should be deemed frivolous, which perforce,

should disqualify him from all the benefits he otherwise may be

entitled to under the INA.20

B. The applicant has not shown any proof of a well-founded fear of prosecution because of his political opinion as to qualify him to the right of non-refoulement under international

19 8 U.S.C. § 208.20 20 8 U.S.C. § 208 (b)(2)(iii).

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law, or to the right to restriction on removal under US law. ____________________________________

31. The international law on refugees and asylum seekers is

usually seen from the perspective of municipal legal systems. 21

Under Human Rights instruments, the only “right” of asylum is

the right to seek asylum from the Receiving State. The power to

grant asylum belongs to the Receiving State, in keeping with its

obligations under international law. These international law

obligations are based not only on treaty law but also on

customary international law.22

32. The principal obligation of the Receiving state, in this case the

United States under customary international law, is to

determine the refugee status of the asylum-seeker in

21 See the excellent discussion on this point in G. GOODWIN-GILL, THE REFUGEE IN INTERNATIONAL LAW 173-196 (2nd ed., 1996). 22 Dean Raul C. Pangalangan, Philippine Obligations Under Customary and Treaty Law on Refugees and Asylum Seekers, in THE RIGHTS OF REFUGEES AND ASYLUM SEEKERS: FOCUS ON THE PHILIPPINES 22 (Gaite, ed., 1996).

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accordance with international law and the duty of non-

refoulement, the duty not to return a refugee to the state of

origin. Article 33 of the 1951 Refugee Convention states, thus:

No contracting State shall expel or return (‘refouler’) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.23

33. Both under international law and under US Law, in order to

obtain a restriction on removal (the right to non-refoulement),

Mr. Bolante must show proof that his "life or freedom would

be threatened in [the Philippines] because of [his] race, religion,

nationality, membership in a particular social group, or

political opinion."24

231951 Refugee Convention Relating to the Status of Refugees 189 U.N.T.S. 150, entered into force April 22, 1954. 24 8 U.S.C. § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A).

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34. The US Attorney General may not remove an alien if the alien

is able to establish a clear probability of persecution in the

country to which he would be returned."25 "The standard of

proof for restriction on removal is more demanding than the

well-founded fear standard applicable to an asylum claim.

Thus, when an applicant fails to establish the objective

component of a well-founded fear of persecution, he

necessarily fails to establish entitlement to restriction on

removal."26

35. In Elias-Zacarias, the Court determined that an applicant for

asylum must establish that he held a political opinion and that

the persecutor's motive would be to harm him "because of that

political opinion."27 It must be noted that guerilla targeting of

an innocent civilian for non-political reasons does not in itself

amount to political persecution for the purposes of an asylum

claim. Such is the case even where the claimant raises an

25 Wiransane, 2004 U.S. App. LEXIS 8259 at *6 (internal quotation marks omitted). 26 Id. at *6*7 (internal quotation marks and citations omitted). 27 INS v. Elias-Zacarias, 502 U.S. 478, 484 (1992).

27

asylum claim on the ground that he was being forced to employ

a guerilla operative or that he was kidnapped for ransom by the

same guerillas 28

36. Neither has the applicant shown that his family is being

molested or harassed by his supposed persecutors.29 In fact,

until he became embroiled in the corruption scandal, he has not

been subject before to a criminal investigation – a fact that will

belie any claim that he lived and worked in the Philippines

under persecution for a long period of time.30 He has been

made subject to criminal investigation because of his complicity

in the corruption scandal.

28Id. (fact that "the guerillas seek to fill their ranks in order to carry on their war against the government and pursue their political goals . . . does not render . . . forced recruitment 'persecution on account of . . . political opinion.'" (internal citation omitted)); See also Ustyan v. Ashcroft, No. 02-9596, U.S. App. LEXIS 6814, at *4 (10th Cir., April 8, 2004). 29 On this score, see Cuadras v. INS 910 F2D 567 (9th Cir. 1990). 30 See Novoa-Umania v. INS, 896 F2D 1; (1st Circ. 1990).

28

37. In De Brenner, the Eighth Circuit determined that written

threats by guerrillas showed that they imputed a political

opinion to De Brenner because they "expressly named [her] as a

member and supporter of the [ruling party], accused her family

of supporting the government, and mistakenly singled her out

as an actual worker for the [political party]."31 Indeed, the

insurgents had "labeled Ms. De Brenner as a political enemy."32

Too, in Agbuya, the Court determined that particularized

evidence demonstrated that a guerrilla group viewed Agbuya

"as politically aligned with the mining company and the

government, and against the [guerrilla group],"33, and "as an

opponent of Communism."34

38. The fact is that none of the circumstances that would establish

a well-founded fear of persecution against him is present.

31 388 F.3d 637. 32 Id. at 638. 33 241 F.3d at 1229 34 Id. at 1230.

29

39. The law could not be more clear. "The burden of proof is on an

applicant to establish her asylum claim."35 The alien's "burden

of persuasion" refers to the burden of "convinc[ing] the trier of

fact of the truth of the allegations that form the basis of the

claim for asylum or withholding of deportation."36 "[T]he party

charged with the burden of proof must establish the truth of his

allegations by a preponderance of the evidence."37

40. To establish a well- founded fear of persecution, an alien must

show that there is a "reasonable possibility" that he will be

persecuted on account of a protected ground.38 That standard is

lower than the "clear probability" standard governing

withholding of removal.39 The applicant has shown no proof to

support his claims in either situations. He cannot claim to be

persecuted because after all, he once belonged to the ruling

35 In re S-M-J-, 21 I. & N. Dec. 722, 724 (B.I.A. 1997); see Elias-Zacarias, 502 U.S. at 483-484. "[I]t is the alien who bears the burden of proving that he would be subject to, or fears, persecution." In re Acosta, 19 I. & N. Dec. 211, 215, 222 (B.I.A. 1985), overruled in part on other grounds, In re Mogharrabi, 19 I. & N. Dec. 439 (B.I.A. 1987). 36 In re Acosta, 19 I. & N. Dec. at 215. 37 Ibid. (citations and footnote omitted). 38 INS v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987) (citation omitted); In re Mogharrabi, 19 I. & N. Dec. at 445-446 (adopting a "reasonable person" test). 39 INS v. Cardoza-Fonseca, 480 U.S. 431 (1987).

30

party as a top official with close ties to no less than the

President herself and her husband.

41. Since a legislative inquiry established his criminal complicity

in the fund anomaly, the Executive Branch of the Philippine

government has not lifted a finger to either enforce the

contempt order of the Philippine Senate, or bring him back to

the Philippines to face criminal charges arising from the fund

anomaly. In fact, the President herself, Mrs. Arroyo would even

issue an Executive Order to protect executive officials –

including the applicant – from any legislative inquiry on any

anomalies including expenditures of public funds. The

Philippine Supreme Court would subsequently strike down the

Executive Order as unconstitutional.

42. The applicant can only make motherhood statements about a

supposed plot by the communist group NPA to kill him,

without any specific proof that he had been targeted for

31

persecution or execution for any political opinion he has

broached against his supposed persecutor.

43. Instead, NPA has denied the applicant’s claims in a statement

made public. A public statement made by the spokesman for

the communist group, coursed through the Information Bureau

of the Communist Party of the Philippines (CPP) on July 26,

2006, says it all:

Claims by former agriculture undersecretary Jocelyn Bolante that he is the target of an alleged NPA assassination plot are but ploys to make him eligible for political asylum in the US and thereby avoid repatriation and evade trial for his and his president's large-scale corruption, malversation and plunder of billions of government funds. At this point, like the rest of the Filipino people, we want Mr. Bolante who is a principal player in the P2.8 billion million fertilizer fund scandal to be repatriated to the Philippines so he could spill the beans about how he connived with Malacañang to use the fertilizer fund as well as the recovered Marcos wealth to bankroll Gloria Arroyo's 2004 electoral campaign and bribe various government and election officials to secure her victory….40

40 As reported by the Independent Media Center at http://qc.indymedia.org/news/2006/07/7949.php <last visited, July 30, 2006> See also a statement released the next day by Filipino communist leader Jose Ma. Sison, who is in exiled in the Netherlands, making the same denial: Bagman of the Ruling Couple Faking NPA Persecution, at the official website of the National Democratic Front of the Philippines (NDFP): http://home.casema.nl/ndf/statements/2006/statement0057.html <last visited July 30, 2006.

32

44. The facts of the case show that Mr. Bolante, far from being a

refugee fleeing political persecution from his home country, is

actually a fugitive from justice attempting to use political

asylum as a means to escape prosecution on corruption charges

– non-political crimes – in his country of origin.

45. Even the Philippine Executive Secretary apparently does not

believe that a threat to his life from the NPA exists. In a well-

publicized statement to Philippine media, Executive Secretary

Eduardo Ermita urged Mr. Bolante to return to the Philippines

and “clear his name.” 41

46. Indeed in the applicant’s case, there is no showing of a “well-

founded fear of persecution” on account of his political

opinion; He however has an apparently well-founded fear of

prosecution for his criminal activities, so that instead of facing

41 See Bolante must return to country to clear name – Ermita, at http://globalnation.inq7.net/news/breakingnews/view_article.php?article_id=9617 <last visited, July 30, 2006>.

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the music, he opted to run away to the United States and now

seeks refugee status and asylum protection under false

pretenses. Granting for the sake of argument that his acts in

relation to the corruption scandal – and this, under the most

strained of interpretations of the meaning of “political opinion”

- were “politically-motivated” he nevertheless will not qualify

as a refugee. As the UN Handbook on Procedures and Criteria for

Determining Refugee Status would put it:

In determining whether a political offender can be considered a refugee, regard should also be had to the following elements: personality of the applicant, his political opinion, the motive behind the act, the nature of the act committed, the nature of the prosecution and its motives; finally, also, the nature of the law on which the prosecution is based. These elements may go to show that the person concerned has a fear of persecution and not merely a fear of prosecution and punishment--within the law--for an act committed by him.42

47. Therefore, the applicant, Mr. Bolante, must not be allowed to

pervert the noble purposes of asylum and to escape the

42 HCR/IP/4/Eng/REV.1 Reedited, Geneva, January 1992, UNHCR 1979, at par. 86.

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demands and ends of justice in his home country, the

Philippines.

48. The July 31, 200 editorial on his case by the Philippine Daily

Inquirer, a leading English-language daily in the applicant’s

home country, put it this way (The Safest Man in RP):

THE CLAIM IS PREPOSTEROUS ON ITS FACE.

Former Agriculture Undersecretary Jocelyn Bolante swears the New People’s Army is out to execute him. That, sources tell us, is why the man at the center of the fertilizer fund scandal is seeking political asylum in the United States.

We do not know what the NPA rebels really think of Bolante, who has studiously avoided all opportunities available to him to provide an accounting of the hundreds of millions in government funds involved in the scandal, or even to explain his role in it.

But we can be sure that, like other Filipinos, the rebels, too, would be interested in hearing him out. His evasiveness—quite unlike the forthrightness one would expect from the Rotary International dignitary that Bolante was until only recently—has all but cancelled the presumption of innocence he is entitled to under our Constitution, at least in the public’s estimation. Flight may not be incontrovertible evidence of guilt, but it comes damnably close.

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Precipitately filing for political asylum, after arriving in the United States with a cancelled visa, comes even closer. Bolante acts exactly like a man who is hiding something.

The news that he was seeking asylum confounded the senators who have tried to pursue the fertilizer fund investigation to its bitter conclusion. Unlike martial law dissidents who sought political asylum in the United States, such as Jovito Salonga and Raul Manglapus, Bolante is not an enemy of the incumbent administration. If anything, he is perceived to enjoy the special protection of the administration, or at least of the administration officials who are allied with First Gentleman Jose Miguel Arroyo. As Sen. Franklin Drilon phrased it with hard-to-miss sarcasm, Bolante is “a child of God.” Except for his notoriety, the Philippines under the Arroyos must be a veritable haven for Bolante.

Why the petition for political asylum? In the first place, it seems likely that Bolante did not make his last trip to Los Angeles for the express purpose of filing the petition. He found out his visa was cancelled only upon arriving at the airport. Thus, it seems likely that the petition is merely his legal defense, belatedly arrived at.

In the second place, the alleged death threats from the NPA strike us as an afterthought, a rationalization. (Bolante certainly could not have pleaded “political persecution” by the Senate, because that would have confirmed suspicions that he was merely avoiding legal processes back home.)

On hearing the news about Bolante’s asylum plans, Executive Secretary Eduardo Ermita expressed

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paternal concern about the fate of this particular child of God. He said the government would guarantee the safety of Bolante—as it would any other citizen facing NPA death threats, he hastened to add.

If the NPA would return the favor, and guarantee Bolante’s safety too, on condition that he return to the country to testify before the Senate, then that would make Bolante the safest man in the entire country. Instead of merely denying the existence of the death threats, the NPA can take the next step and say it is ready to protect him too. It may even start a new trend; we are reasonably sure that even ordinary citizens would line up to protect Bolante if he agreed to finally testify under oath.

This scenario, however, depends on an untenable assumption: That Bolante is prepared to tell the truth. But nothing in his behavior in the last year or so—not his absences in the many Senate hearings, not his refusal to accept a Senate summons while overseeing a Rotary conference at a hotel, not his pointed use of a lawyer to speak to the public, not his sudden decision to file for asylum—suggests that he is ready to live again according to Rotary’s famous four-way test.

The first test—Is it the truth?—is simple enough; we wonder why Bolante, on the issue of the fertilizer funds which may or may not have formed part of President Macapagal-Arroyo’s 2004 campaign kitty, insists on flunking it.43

43 The Safest Man in RP, accessible at http://services.inq7.net/print/print.php?article_id=12614 <last visited, August 1, 2006.

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CONCLUSION

As shown by our discussion, it is clear that Mr. Jocelyn I.

Bolante does not qualify as a refugee under US law and international

law. Neither has he shown proof of a well-founded fear of

persecution on account of his political opinion. For this reason,

Petitioners ask that this Honorable Court deny the applicant’s request

for asylum and restriction on removal. Petitioners ask in addition

that the applicant be immediately deported back to the Philippines to

face charges in connection with his complicity in the P728-million

fertilizer fund scam.

Respectfully submitted. Dated: August 4, 2006.

Roque and Butuyan Law Offices Antel 2000 Corporate Centre No. 121 Valero St., Salcedo Village Makati City, Metro Manila Philippines 1200 (02)-8874445 administration@roquebutuyan.com

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Of the Philippine Bar: Prof. Merlin M. Magallona Dr. Raul C. Pangalangan Prof. H. Harry L. Roque Jr. Attorney Romel Regalado Bagares

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