Aguirre-Aguirre v. I.N.S., AGUIRRE-AGUIRR

• Decision Date: 08 August 1997
• Docket Number: P,No. 96-70267,AGUIRRE-AGUIRR,96-70267
• Citation: 121 F.3d 521
• Parties: 97 Cal. Daily Op. Serv. 6319, 97 Daily Journal D.A.R. 10,337 Juan Anibaletitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 521

121 F.3d 521

97 Cal. Daily Op. Serv. 6319, 97 Daily Journal

D.A.R. 10,337

Juan Anibal AGUIRRE-AGUIRRE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 96-70267.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 7, 1997.

Decided Aug. 8, 1997.

Ralph J. Leardo, Law Offices of Nancy Ann Fellom, San Francisco, CA; Veronica L. Burris-Valentine, Tingey & Burris, Las Vegas, NV; Nadine K. Wettstein, Tucson, AZ, for petitioner.

Ronald E. LeFevre, Chief Legal Officer, Immigration and Naturalization Service, San Francisco, CA; Joan E. Smiley, Hugh G. Mullane, M. Jocelyn Lopez Wright, Office of Immigration Litigation, United States Department of Justice, Washington, DC, for respondent.

Petition to Review a Decision of the Immigration and Naturalization Service, San Francisco, California. INS No. A70-815-341.

Before: PREGERSON, JOHN T. NOONAN, Jr., and KLEINFELD, Circuit Judges.

NOONAN, Circuit Judge:

Juan Anibal Aguirre-Aguirre (Aguirre) petitions for review of the order of the Board of Immigration Appeals (the Board) finding him ineligible for withholding of deportation and asylum. Holding that the Board has erred as a matter of law in its interpretation of 8 U.S.C. § 1253(h)(2)(C) (1994) ("serious nonpolitical crime"), we grant the petition and remand.

PROCEEDINGS

Aguirre entered the United States without inspection. Before the Immigration Judge (IJ) he conceded deportability and applied for asylum and withholding of deportation. He testified to his activities in Guatemala as a student leader, among them the burning of ten buses and the messing up of several stores as a way of demonstrating against the ruling government of Guatemala and in particular against its raising of student fares on the buses (an element of student transportation) and its indifference to, and possible complicity in, the mysterious disappearances and deaths of political activists. Carefully reviewing Aguirre's testimony and finding it wholly believable, the IJ granted both asylum and withholding of deportation.

On appeal by the Immigration and Naturalization Service (the Service), the Board reversed. The Board disagreed with the Service's contention that Aguirre had engaged in terrorist acts as defined by 8 U.S.C. § 1182(a)(3)(B)(ii) (1994). The Board also disagreed with the Service's contention that Aguirre was a danger to the security of the country under 8 U.S.C. § 1253(h)(2)(D) (1994) and 8 C.F.R. § 208.14(c)(3). However, the Board held that the "nature of his acts against innocent Guatemalans" made him unworthy of a favorable exercise of discretion and that therefore it was unnecessary to address his statutory eligibility for asylum. The Board further held that "the criminal nature of the respondent's acts outweigh their political nature" and that he was consequently barred from withholding of deportation Aguirre petitions for review.

without the Board needing to address the issue of his statutory eligibility for this relief. In reaching its decision the Board did not consider what Aguirre might suffer if deported to Guatemala, nor did the Board weigh the character of Aguirre's crimes in relation to his political objectives, nor did the Board follow Ninth Circuit precedent in this area. The Board also denied Aguirre voluntary departure.

ANALYSIS

This case depends upon the construction of a single statutory provision, 8 U.S.C. § 1253(h)(2)(C) (1994), declaring that an alien is not entitled to withholding of deportation if the Attorney General determines that "there are serious reasons for considering that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States." We review de novo the Board's interpretation of the requirements for establishing eligibility for withholding of deportation. Abedini v. INS, 971 F.2d 188, 190-91 (9th Cir.1992).

The statute at issue here has been considered by us in McMullen v. INS, 788 F.2d 591 (9th Cir.1986). Construing the statute, we found that Congress "intended the nonpolitical crimes exception to withholding of deportation to be consistent with the Convention [Relating to the Status of Refugees, 189 U.N.T.S. 150 (1951) ] and Protocol [Relating to the Status of Refugees, 19 U.S.T. 6223 (1968) ]." McMullen, 788 F.2d at 595. The United States is a party to the Protocol, and the Protocol, Article 1.2, defines the term "refugee" as "any person within the definition of Article 1 of the Convention." The relevant definition in Article 1F of the Convention excludes a person who "has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee."

In April, 1996 the Immigration and Nationality Act, 8 U.S.C. 1253(h), was amended by providing that an alien must be granted withholding of deportation if such grant was "necessary to ensure compliance with the 1967 United Nations Protocol Relating to the Status of Refugees." Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, § 413(f), 110 Stat. 1214, 1269 (1996) (adding 8 U.S.C. § 1253(h)(3)). It is unnecessary for us to determine whether this statute applies to Aguirre's case because under McMullen we are already bound to apply the Protocol in decisions regarding the withholding of deportation.

Interpreting and applying the statute in the light of McMullen and the Protocol, we find that the Board committed errors of law. First, the Board looked only at the offenses of Aguirre, which at common law would be considered crimes against property (the burning of the buses and the throwing of store merchandise on the floor) and minor assaults and batteries (the means taken to get reluctant bus passengers off the buses before their destruction). The Board did not consider these offenses in relation to Aguirre's declared political objectives. Under the Protocol the Board should have first determined the nature and purpose of Auirre's acts, that is whether they were "committed out of genuine political motives and not merely for personal reasons or gain," as stated by an authoritative commentary on the Convention and Protocol. United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees p 152 (1979) [hereafter UNHCR, Handbook ]. See INS v. Cardoza-Fonseca, 480 U.S. 421, 438-39, 107 S.Ct. 1207, 1216-17, 94 L.Ed.2d 434 (1987) (relying on Handbook for definition of "refugee"). The Board should have further considered whether there is "a close and direct causal link between the crime[s] committed and [their] alleged political purpose and object." UNHCR, Handbook, supra, p 152.

Aguirre's political purpose (there was no personal motivation or gain) was to challenge a government which there was reason to suspect engaged in the actual murder of its own citizens and which was certainly an accomplice in such murder by its failure to investigate the homicides and prosecute them. When you are dealing with an ass it may be necessary to move the beast by a blow on a sensitive part even though what you want to move are the feet. When you are dealing with a government which is an accomplice or an accessory to terroristic methods of government you need to use forceful measures to draw the government's attention to your protest; your political objective is a governmental response, you look for a sensitive area. Aguirre's methods, as he testified, were successful as to this objective. The government had to resort to television appeals to stop the student actions. The methods were also successful enough to earn the enmity of a rival rebel group, "the guerrillas," who resented the students' way of demonstrating against the government. The Board should have considered the political necessity and success of Aguirre's methods, weighing their political character against their criminal content.

In making this inquiry the Board should have considered whether the acts committed were "grossly out of proportion to the alleged objective." UNHCR, Handbook, supra, p 152. The political nature of the offenses would be "more difficult to accept" if they involved "acts of an atrocious nature." Id. The Board made its second error of law in failing to consider Ninth Circuit precedent in this regard. McMullen cast light on what under the law are acts of atrocious nature. They are the acts attributed to the Provisional Irish Republican Army (PIRA) which made McMullen ineligible for withholding of deportation, i.e., "indiscriminate bombing campaigns, ... murder, torture, and maiming of innocent civilians who disagreed with the PIRA's objectives and methods." McMullen, 788 F.2d at 597. A comparison of what the McMullen court found atrocious with the acts committed by Aguirre suggests a startling degree of difference. Aguirre did not engage in indiscriminate bombing, murder, torture, or the maiming of innocent civilians. His only acts against innocent Guatemalans were the disruption of some stores and his use of methods that we would all find objectionable if practiced upon us on a bus in the United States but which fall far short of the kind of atrocities attributed to McMullen and his associates.

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