Kotasz v. I.N.S., 92-70268

• Citation: 31 F.3d 847
• Decision Date: 01 August 1994
• Docket Number: No. 92-70268,92-70268
• Parties: Mihaly KOTASZ, Agnes Horvath Kotasz, Matyas Kotasz, and Erika Kotasz, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 847

31 F.3d 847

Mihaly KOTASZ, Agnes Horvath Kotasz, Matyas Kotasz, and Erika Kotasz, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 92-70268.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 4, 1993.

Decided Aug. 1, 1994.

Eleanor T. Bregman, San Diego, CA, for petitioners.

Allen W. Hausman, U.S. Dept. of Justice, Washington, DC, for respondent.

Petition for Review of a Decision of the Immigration and Naturalization Service.

Before: REINHARDT, T.G. NELSON, Circuit Judges, and KAUFMAN, ^* District Judge.

REINHARDT, Circuit Judge:

Mihaly and Agnes Kotasz, husband and wife, and their two children, Matyas and Erika, petition for review of the Board of Immigration Appeals' ("BIA") decision denying their applications for asylum and withholding of deportation. All four members of the Kotasz family are natives and citizens of Hungary.

Although the BIA did not question the reliability of evidence showing that Mihaly Kotasz ("Mihaly") was arrested and beaten on several occasions by the Hungarian police because of his active opposition to the Hungarian communist government, it denied Mihaly's asylum request. The BIA based its denial of asylum on the fact that Mihaly was arrested "along with numerous other demonstrators," and thus, in its view, was not "singled out" for persecution. ¹ Similarly, the BIA denied the asylum claim of Agnes Kotasz ("Agnes"), which was based on her ethnic status as a gypsy, because it found that she had not been individually targeted for persecution. Because we find that, as to Mihaly, the BIA erred in its application of the requirement of a particularized threat of persecution, we grant the Kotaszes' petition in part and deny it in part, and remand to the BIA for further proceedings.

I.

As the BIA acknowledged in its opinion, Mihaly is anti-communist. More specifically, he strongly opposed the Hungarian communist government. Mihaly's father took part in the 1956 Hungarian uprising. Mihaly himself was forced to serve at a labor camp for a year and a half because of his refusal to serve in the Hungarian military. Subsequently to show his opposition to the communist regime, Mihaly participated in several annual demonstrations commemorating the 1848 Hungarian Revolution. At each of these peaceful demonstrations--on March 15 of 1981, 1984, 1985 and 1986--Mihaly was arrested by the police. Ten to twenty other demonstrators were usually arrested along with him; they would be detained and, at intervals during detention, beaten by the police. The police hit Mihaly in his stomach and kidneys with a rubber truncheon, and called him an anti-communist. Each time Mihaly was detained he suffered one or two days of such treatment and was then released.

The Kotaszes entered the United States on December 5, 1987, as nonimmigrant visitors. Mihaly immediately applied for political asylum and withholding of deportation on behalf of himself and his family; his application described his history of arrests and beatings. Agnes filed a separate asylum application in which she described the discrimination faced by gypsies in Hungary. After certain procedural complications, the Kotaszes' deportation hearing was held on May 17, 1990.

At the hearing, both Mihaly and Agnes Kotasz testified in support of their asylum applications. ² Agnes' testimony was extremely brief: she stated only that in Hungary she was ashamed to admit that she was a gypsy. Mihaly testified at much greater length, describing his mistreatment at the hands of the Hungarian government. He asserted that because of his past political activities he would have "great difficulty" if he returned to Hungary. When questioned about then-recent political changes in Hungary, Mihaly asserted that political harassment continued there because, despite the superficial change of government system, the same people were in power and the same thinking prevailed as under Communism. ³ The immigration judge found his testimony generally credible, but denied the Kotaszes' asylum and withholding of deportation claims and granted them voluntary departure. The BIA affirmed in a three-page disposition.

The BIA found that neither petitioner had proven the particularized persecution necessary to demonstrate statutory eligibility for asylum under the INA. In its opinion, the BIA stated with regard to Mihaly that "there is no evidence in the record that [he] was singled out for persecution--rather he was arrested with numerous other demonstrators and incarcerated for a short period of time." Regarding Agnes' asylum claim, the BIA found that "there is no evidence that she, as an individual, has been persecuted owing to her ethnic background." Finally, after rejecting the Kotaszes' claims of persecution the BIA took administrative notice of the political changes in Hungary, noting that a "western-style parliamentary democracy" had been instituted and that the Communist Party was no longer in power. ⁴

This petition for review ensued.

II.

A.

We review legal questions regarding the requirements for establishing eligibility for asylum de novo. Abedini v. INS, 971 F.2d 188, 190 (9th Cir.1992). Factual findings supporting the BIA's asylum determination, including whether the alien has demonstrated a well-founded fear of persecution, are reviewed under the "substantial evidence" standard. Id. at 191.

An alien who seeks judicial reversal of the BIA's eligibility determination "must show that the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution." INS v. Elias-Zacarias, --- U.S. ----, ----, 112 S.Ct. 812, 817, 117 L.Ed.2d 38 (1992), rev'g 921 F.2d 844 (9th Cir.1990) (reversing BIA and holding that petitioner established his statutory eligibility for asylum). This strict standard bars the reviewing court from independently weighing the evidence and holding that the petitioner is eligible for asylum, except in cases where compelling evidence is shown. It does not, however, preclude a court from vacating the BIA's asylum determination and remanding a case for further consideration where the BIA's denial of asylum was based upon an error of law. See, e.g., Castillo-Villagra v. INS, 972 F.2d 1017, 1031 (9th Cir.1992); Rivas-Martinez v. INS, 997 F.2d 1143, 1146 (5th Cir.1993); Yepes-Prado v. INS, 10 F.3d 1363, 1366, 1370 (9th Cir.1993). When we remand due to the BIA's legal error, we allow the BIA to exercise its judgment and administrative expertise using the appropriate legal standards. In such cases--unless, of course, compelling evidence of persecution exists--we do not instruct the BIA as to any required outcome on remand. See, e.g., Castillo-Villagra, 972 F.2d at 1031.

B.

Section 208(a) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1158(a), provides that any alien is eligible for asylum who is unable or unwilling to return to his or her home 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." 8 U.S.C. Sec. 1101(a)(42)(A). The "well-founded fear" standard has both a subjective and objective component. INS v. Cardoza Fonseca, 480 U.S. 421, 430-31, 107 S.Ct. 1207, 1212-13, 94 L.Ed.2d 434 (1987). The subjective component requires only that the alien's fear be genuine. Desir v. Ilchert, 840 F.2d 723, 726 (9th Cir.1988). The objective component requires "credible, direct, and specific evidence in the record of facts that would support a reasonable fear" of persecution. Rodriguez-Rivera v. INS, 848 F.2d 998, 1002 (9th Cir.1988) (per curiam) (emphasis in original).

C.

A requirement that the alien show that he faces a particularized threat of persecution--sometimes referred to, especially in BIA opinions, as a requirement that the alien show that he will be "singled out" for persecution ⁵--is encompassed within the well-founded fear standard. Although we have expressed this requirement using various formulations, ⁶ the underlying idea has remained constant: the petitioner cannot simply prove that there exists a generalized or random possibility of persecution in his native country; he must show that he is at particular risk--that his "predicament is appreciably different from the dangers faced by [his] fellow citizens." Vides-Vides, 783 F.2d at 1469. See also Zepeda-Melendez v. INS, 741 F.2d 285, 290 (9th Cir.1984) (affirming BIA denial of asylum because danger facing petitioner was "the same as faced by other Salvadorians"); Rebollo-Jovel v. INS, 794 F.2d 441, 448 (1986).

Vides-Vides and other such cases involved citizens of El Salvador who sought asylum during a period of political turmoil in their native country. In the Salvadorian cases, we ruled in favor of the petitioner only when he showed that for one reason or another he was subject to particular danger. See Zavala-Bonilla v. INS, 730 F.2d 562, 564-67 (9th Cir.1984) (reversing BIA ruling against Salvadorian who actively participated in union activities, and was confronted by police during controversial strike); Aviles-Torres, 790 F.2d at 1435 (reversing BIA ruling against Salvadorian labeled a "guerilla" in newspaper article); Canjura-Flores v. INS 784 F.2d 885, 888 (9th Cir.1985) (reversing BIA ruling against Salvadorian who was active member of leftist organization, and who had been sought by National Guard). It is important to note, however, that underlying our approach was our determination that, despite the widespread political violence that existed in El Salvador during this period, neither all Salvadorians nor all rebel sympathizers were systematically persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion.

There are, in contrast, more extreme situations in which members of an entire group--though perhaps not of an entire nation--are systematically persecuted. In such cases, group membership...