204 F.3d 985 (9th Cir. 2000), 98-70464, Cordon-Garcia v. INS

Docket Nº:98-70464
Citation:204 F.3d 985
Party Name:LETICIA CORDON-GARCIA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Case Date:March 03, 2000
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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204 F.3d 985 (9th Cir. 2000)

LETICIA CORDON-GARCIA, Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 98-70464

United States Court of Appeals, Ninth Circuit

March 3, 2000

Argued and Submitted January 6, 2000

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COUNSEL: Garish Sarin, Law Offices of Garish Sarin, Los Angeles, California, for the petitioner.

Jeffrey J. Bernstein (Argued), and Christine A. Bither (On the Briefs), Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for the respondent.

Petition to Review an Order of the Immigration and Naturalization Service INS No. A70-922-377

Before: Cynthia Holcomb Hall, Stephen S. Trott, and William A. Fletcher, Circuit Judges.

TROTT, Circuit Judge:

Leticia Cordon-Garcia ("Petitioner") petitions for review of a March 30, 1998, decision by the Board of Immigration Appeals ("BIA") affirming an Immigration Judge's ("IJ") denial of Petitioner's application for asylum and withholding of deportation. Petitioner claims persecution on the basis of imputed political opinion and membership in a particular social group. Because Petitioner failed to present her "social group" argument to the BIA, this court is limited to considering only her "imputed political opinion" argument. See Farhoud v. INS, 122 F.3d 794, 796 (9th Cir. 1997) (absent limited exceptions, "[f]ailure to raise an issue below constitutes failure to exhaust administrative remedies and deprives this court of jurisdiction to hear the matter") (internal quotations omitted). This court has jurisdiction pursuant to section 309(c)(4)(A) & (D) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), Pub. L. 104-208, 110 Stat. 3009 (Sept. 30, 1996), and section 106(a) of the Immigration and Nationality Act ("INA"), 8 U.S.C. S 1105a(a).1 We grant the petition for review but remand the case to the BIA for credibility findings regarding CordonGarcia's testimony at the hearing before the IJ.

BACKGROUND

Petitioner, a native and citizen of Guatemala, lived in the City of Zacapa until 1990. From 1988 to April 1990, she taught adult literacy classes at night in a nearby rural area called Aguablanca. She was employed by CONALFA, a government-funded literacy agency. Petitioner's testimony at the hearing before the IJ sets forth the following events, which form the basis of her asylum application.

One night in November 1989, the receptionist at Petitioner's school told Petitioner that a suspicious-looking man asked for the name of the person teaching her class in Aguablanca. The receptionist did not tell him Petitioner's name, and the man left. Two months later, the same man approached one of Petitioner's students and asked the student the name of the person teaching the class and when she would be finished that night. The student told the man Petitioner's name, but refused to divulge any further information.

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One month later, in February 1990, the man met Petitioner as she left the school one night. He asked her if she was Leticia Cordon, which she confirmed. The man tied up her hands, blindfolded her, and took her to the bank of a nearby river. Once there, the man took the blindfold off, threw Petitioner to the ground, beat her, and told her that if she continued teaching classes for the government she and her family would be in danger.

The man told Petitioner that the guerrillas wanted her to work for them instead of for CONALFA and that they would explain everything once she joined them. The man indicated that the guerrillas did not want her to work for the government because the more literate the people are, the more difficult it is to "reach" and "persuade" them. Petitioner told the man she could not join the guerrillas as she already had a position at the school, to which he responded, "decide which one you're going to work with." The man told her to "think it over well," and then let her go as a warning.

Thereafter, until Petitioner left Guatemala, military aides in Zacapa accompanied her on her way to school. Petitioner learned from neighbors that in March 1990, three guerrillas were dissuaded from approaching her when they saw that she was accompanied. Petitioner left Guatemala the following month and entered the United States illegally on May 8, 1990.2 The guerrillas continued to attempt to locate Petitioner after her departure. Petitioner testified at the IJ hearing that she thought the guerrillas continued to pursue her whereabouts "[b]ecause they thought that if I would be near there, somewhere nearby I would return or that perhaps I was doing the same thing" -teaching Guatemalans literacy -"at another place." The guerrillas' further attempts to locate Petitioner were described at the IJ hearing as follows.

In May 1990, the man who originally abducted Petitioner returned to the school and asked the receptionist whether Petitioner still taught there. The receptionist told the man that she did not know where Petitioner was, and the man accused her of covering for Petitioner. The man then returned in January 1991 and asked whether Petitioner had transferred somewhere else.

In September 1991, three guerrillas approached Petitioner's father in the fields as he worked and inquired as to Petitioner's whereabouts. A neighbor watched this encounter from behind some trees. When Petitioner's father refused to tell the men where Petitioner was, he was shot and killed. In October 1991, three guerrillas approached Petitioner's brother as he was working in the same field. Her brother admitted belonging to Petitioner's family, and the men asked for Petitioner's whereabouts. Before escaping, her brother told the men he did not know where she was, to which the men responded "if you don't tell us . . . your mother and sister will be left without any man in the family." The brother was then able to escape from the men.

The authorities in Zacapa responded by protecting Petitioner's uncle as he worked in the field. The protection lasted for approximately a year and a half. Still, in March 1995, after the protection ceased, four guerrillas approached Petitioner's uncle as he worked in the fields. Petitioner's cousin was nearby on horseback. The men asked the uncle whether he belonged to Petitioner's family. This question prompted Petitioner's cousin to flee. Petitioner's uncle told the men he did not know where she was. When he tried to run away, he was shot, attacked with a machete, and killed.

The IJ denied Petitioner's application for asylum and withholding of deportation, citing in part both credibility concerns and her inability to establish that she suffered

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any persecution on account of an imputed political opinion. The BIA dismissed Petitioner's subsequent appeal, but affirmed the IJ's decision to grant her voluntary departure.

DISCUSSION

A. Standard of Review

Where the BIA reviews the IJ's decision de novo, our review is limited to the BIA's decision, except to the extent the IJ's opinion is expressly adopted. Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir. 1995). The IJ's and the BIA's credibility findings are reviewed for "substantial evidence, " Singh-Kaur v. INS, 183 F.3d 1147, 1149 (9th Cir. 1999), as are all other factual findings. Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir. 1997). Substantial evidence is also the governing standard of review for the determination that Petitioner has not established eligibility for asylum. See Singh v. INS , 134 F.3d 962, 966 (9th Cir. 1998).

The "substantial evidence" standard requires this court to uphold the IJ's and BIA's findings and decisions if supported by "reasonable, substantial, and probative evidence on the record." INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (internal quotation marks omitted). To prevail, Petitioner must show that the evidence not only supports, but compels the conclusion that these findings and decisions are erroneous. See Singh, 134 F.3d at 966. "This strict standard bars a reviewing court from independently weighing the evidence and holding that petitioner is eligible for asylum, except in cases where compelling evidence is shown." Id. (quoting Kotasz v. INS, 31 F.3d 847, 851 (9th Cir. 1994)) (internal quotation marks omitted). Thus, Petitioner cannot prevail unless she demonstrates that any reasonable factfinder would have to conclude that she is eligible for relief from deportation. See Fisher v. INS, 79 F.3d 955, 961 (9th Cir. 1996).

B. Asylum Law

Petitioner originally applied for relief from deportation proceedings in the form of both asylum and withholding of deportation. However, on appeal she does not challenge the decision to deny withholding of deportation. Therefore, discussion of Petitioner's eligibility for relief from deportation proceedings will be limited to asylum.

To establish eligibility for asylum, Petitioner bears the burden of proving that she is a "refugee." See Sangha, 103 F.3d at 1487. The definition of "refugee" includes an alien who is unable or unwilling to return to his or her country of origin "because of persecution or a well-founded fear of persecution on account of . . . political opinion." 8 U.S.C. S 1101(a)(42)(A) (1999). Past persecution or a well-founded fear of future persecution is sufficient to demonstrate "refugee" status. Velarde v. INS, 140 F.3d 1305, 1309 (9th Cir. 1998). Once an applicant demonstrates past persecution, there is a presumption of a well-founded fear of future persecution. Id. at 1309 n.4. The government may rebut this presumption by showing by a preponderance of the evidence that conditions have changed to such an extent in Guatemala, that Petitioner's fear is no longer "well-founded. " See Singh v. Ilchert, 69 F.3d 375, 379 (9th Cir. 1995) [hereinafter cited as Ilchert].

A well-founded fear of future persecution must be both "subjectively genuine" and...

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