Osorio v. I.N.S., 728

Citation18 F.3d 1017
Decision Date07 March 1994
Docket NumberNo. 728,D,728
PartiesVicente OSORIO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. Lawyers Committee for Human Rights, Amicus Curiae. ocket 93-4115.
CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Anne Pilsbury, Brooklyn, NY (Central American Legal Assistance, of counsel), for Petitioner.

Claude M. Millman, Assistant United States Attorney for the Southern District of New York, New York, NY (Mary Jo White, United States Attorney for the Southern District of New York, F. James Loprest, Jr., Special Assistant United States Attorney, Diogenes P. Kekatos, Assistant United States Attorney; William Slattery, Immigration & Naturalization Service, Office of District Director; and Janet Reno, Attorney General, Washington, DC, of counsel), for Respondent.

Arthur C. Helton, Lawyers Committee for Human Rights, New York, NY, and John M. DiMatteo, EGLI International, for Amicus Curiae.

Before: NEWMAN, Chief Judge, OAKES and CARDAMONE, Circuit Judges.

OAKES, Senior Circuit Judge:

This petition for review raises several questions under the Immigration and Nationality Act of 1952, as amended, (the "Act"), 8 U.S.C. Secs. 1101 et seq. (1988 & Supp. IV 1992): (1) whether the applicant for asylum was persecuted solely on account of his involvement in an economic dispute with his government and therefore was ineligible for political asylum? (2) whether Congress intended to exclude from eligibility applicants who were persecuted because of their political beliefs and their involvement in an economic dispute with their government? (3) whether the applicant established a well-founded fear of political persecution? (4) whether membership in a union constitutes membership in a social group for purposes of asylum (or withholding of deportation)? and (5) whether it is more likely than not that the applicant's life or freedom would be threatened in Guatemala because of his political opinion?

On March 15, 1989, Vicente Osorio, a Guatemalan union leader, and his wife, Maria Aracely Morales, entered the United States in violation of Act section 241(a)(2). 8 U.S.C. Sec. 1251(a) (1988). 1 They sought asylum or, in the alternative, withholding of deportation. See 8 U.S.C. Secs. 1158(a), 1253(h)(1) (1988 & Supp. IV 1992). Instead, on August 22, 1990, Immigration Judge John K. Speer (the "IJ") denied Osorio's application for asylum, or withholding of deportation, but granted his application for voluntary departure to Costa Rica. See 8 U.S.C. Sec. 1254(e) (1988 & Supp. IV 1992). On April 22, 1993, the Board of Immigration Appeals (the "BIA") affirmed. We now reverse the BIA's denial of Osorio's eligibility for asylum and order that withholding of deportation be granted to Osorio.

I. Asylum and Withholding of Deportation Under the Act

Since 1980, the Act as amended has provided two methods by which a deportable alien, already in the United States, may seek relief: asylum or withholding of deportation. INS v. Cardoza-Fonseca, 480 U.S. 421, 423, 107 S.Ct. 1207, 1209, 94 L.Ed.2d 434 (1987) (articulating the difference between asylum and withholding of deportation); see also Sale v. Haitian Ctrs. Council, Inc., --- U.S. ----, ----, 113 S.Ct. 2549, 2552-53, 125 L.Ed.2d 128 (1993). Section 208(a) of the Act authorizes the Attorney General, at her discretion, to grant asylum to eligible aliens. 8 U.S.C. Sec. 1158(a). Section 243(h) of the Act requires the Attorney General to withhold the deportation of an alien who demonstrates that if deported his or her "life or freedom would be threatened" on account of one of several enumerated factors. 8 U.S.C. Sec. 1253(h) (setting forth requirements for withholding of deportation).

Asylum and withholding of deportation are " 'closely related and appear to overlap.' " Carranza-Hernandez v. INS, 12 F.3d 4, 7 (2d Cir.1993) (quoting Carvajal-Munoz v. INS, 743 F.2d 562, 564 (7th Cir.1984)). 2 Nevertheless, there are two important distinctions. First, "[t]he burden of proof that an alien must meet to be eligible for asylum is lower than that required of an alien who seeks withholding of deportation." Carranza-Hernandez, 12 F.3d at 7 (emphasis added) (citing Cardoza-Fonseca, 480 U.S. at 443-50, 107 S.Ct. at 1219-23 (1987); INS v. Stevic, 467 U.S. 407, 428-30, 104 S.Ct. 2489, 2500-01, 81 L.Ed.2d 321 (1984); Saleh v. United States Dep't of Justice, 962 F.2d 234, 240 (2d Cir.1992); Gomez v. INS, 947 F.2d 660, 665 (2d Cir.1991)). Second, once eligibility for asylum has been established, a grant of asylum remains within the Attorney General's discretion. In contrast, "withholding of deportation for those who qualify [is] mandatory rather than discretionary." Aliens and Nationality; Asylum and Withholding of Deportation Procedures, 55 Fed.Reg. 30674 (July 27, 1990). Thus, although the Attorney General has the discretion to deny asylum to an alien eligible under section 208(a), she may not deny withholding of deportation to the same alien if the alien satisfies the stricter standards of section 243(h). See Cardoza-Fonseca, 480 U.S. at 443 & n. 28, 107 S.Ct. at 1219 & n. 28 (noting certain statutory exceptions not applicable to this case). For both asylum and withholding of deportation, an otherwise deportable alien bears the burden of establishing eligibility. See 8 C.F.R. Secs. 208.13, 208.16(b) (1993).

II. Standard of Review
A. BIA Findings of Fact

On petition for review of a BIA judgment, "findings of facts, if supported by reasonable, substantial, and probative evidence on the record considered as a whole, shall be conclusive." 8 U.S.C. Sec. 1105a(a)(4) (1988); see Saleh, 962 F.2d at 238; Maikovskis v. INS, 773 F.2d 435, 446 (2d Cir.1985), cert. denied, 476 U.S. 1182, 106 S.Ct. 2915, 91 L.Ed.2d 544 (1986). Thus, we must uphold the BIA's or the IJ's factual findings regarding Osorio's eligibility for asylum under section 208(a), or withholding of deportation under section 243(h), if they are reasonably supported by substantial evidence on the record. See Saleh, 962 F.2d at 238; Melendez v. United States Dep't of Justice, 926 F.2d 211, 216-18 (2d Cir.1991). We will reverse BIA findings of fact only if "a reasonable fact-finder would have to conclude" otherwise. See INS v. Elias-Zacarias, --- U.S. ----, ----, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992) (citation omitted).

B. BIA Interpretations of Law

In reviewing a decision of the BIA, we are mindful of the substantial deference we owe such administrative tribunals in their interpretations of statutory law. Nevertheless, we will reverse an unreasonable interpretation of the BIA. See INS v. Cardoza-Fonseca, 480 U.S. at 446-48, 107 S.Ct. at 1221-22 (" '[t]he judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent' ") (quoting Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 n. 9, 104 S.Ct. 2778, 2781 n. 9, 81 L.Ed.2d 694 (1984)); Local 144, Hotel, Hosp., Nursing Home & Allied Servs. Union v. NLRB, 9 F.3d 218, 221 (2d Cir.1993) (citations omitted); Cass R. Sunstein, Law and Administration After Chevron, 90 Colum.L.Rev. 2071, 2085 n. 69, 2109 (1990) (citing cases in which the Supreme Court has rejected agency interpretations of the law since Chevron and stating that "agency interpretations will not prevail when they conflict with syntactic norms"); Cynthia R. Farina, Statutory Interpretation and the Balance of Power in the Administrative State, 89 Colum.L.Rev. 452, 476-78 (1989) (criticizing the view that courts must defer to an agency's interpretation of the law); Cass R. Sunstein, Interpreting Statutes in the Regulatory State, 103 Harv.L.Rev. 405, 444-46 (1989). Specifically, we will reverse the BIA's interpretation of statutory law where " 'it appears from the statute or its legislative history' " that the interpretation is contrary to Congress's intent. Chevron, 467 U.S. at 845, 104 S.Ct. at 2783 (citation omitted); cf. Cardoza-Fonseca, 480 U.S. at 453, 107 S.Ct. at 1224 (Scalia, J., concurring) (" 'the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress' ") (quoting Chevron, 467 U.S. at 842-43, 104 S.Ct. at 2781); compare Antonin Scalia, Judicial Deference to Administrative Interpretations of Law (1989), reprinted in 1989 Duke L.J. 511 (giving a broad interpretation of Chevron yet stating that one justification of the Chevron doctrine is to give deference to an administrative agency's reasonable interpretation of the law).

We pause here to note that although the IJ made explicit factual findings, the BIA did not make any specific factual findings; nor did the BIA even reach most of the questions on appeal. Instead it "assumed ... that the factual basis of [Osorio's] persecution claim is worthy of belief." See In re Osorio, (Unpublished Decision, No. A29 770 391, New York, April 22, 1993) ("BIA Opinion"). Thus, in effect, the BIA held that, as a matter of law, a Guatemalan union leader, who is persecuted on account of his or her membership in or leadership of a union and the activities that flow therefrom, is not eligible for asylum on any basis. In so holding, the BIA made at least one ill-conceived assumption, which we discuss in greater detail in section V.A.1. of this opinion, and ignored the underlying facts of the dispute in its attempt to characterize this dispute as a pure question of law.

The BIA also failed to reach the question of discretionary exercise of asylum. While the Attorney General has discretion to deny asylum even if the applicant has met the burden of establishing eligibility, this discretion may not be exercised arbitrarily. Therefore, we review, for abuse of discretion, a denial of asylum to applicants who have demonstrated their eligibility for asylum. See Saleh, 962 F.2d at 238. If the alien establishes his or her eligibility for asylum, the government must...

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