Secaida-Rosales v. I.N.S.
| Decision Date | 02 June 2003 |
| Docket Number | Docket No. 01-4109. |
| Citation | 331 F.3d 297 |
| Parties | Felix Hilario SECAIDA-ROSALES, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Second Circuit |
Anne Pilsbury, Brooklyn, NY (Lisa Reiner-Sotelo and Central American Legal Assistance, of counsel), for Petitioner.
Michael M. Krauss, Assistant United States Attorney, New York, NY (James B. Comey, United States Attorney, Kathy S. Marks, Gideon A. Schor and Megan Brackeny, Assistant United States Attorneys, of counsel), for Respondent.
Before OAKES, CABRANES and KATZMANN, Circuit Judges.
Petitioner Felix Hilario Secaida-Rosales appeals from the decision of the Board of Immigration Appeals ("BIA") affirming the denial of his petition for asylum and withholding of deportation by an Immigration Judge ("IJ"). He argues that the IJ erred as a matter of law by relying on a number of improper grounds and by holding him to inappropriately high evidentiary standards when she made an adverse credibility finding with regard to him, and that, absent these errors, grounds for an adverse credibility finding are completely lacking in the record. Because we agree, we reverse the decision of the BIA with instructions to remand to the IJ. We order a remand for the limited purpose of providing the IJ an opportunity to take additional evidence on and address the question whether conditions in Secaida's country of origin have improved in the time since his application, such that a threat of persecution no longer exists.
Felix Hilario Secaida-Rosales was detained in September 1995 after he entered California without a visa. Faced with deportation proceedings, he filed an application for asylum and withholding of deportation. At the close of a two-day hearing, the IJ denied his request from the bench, issuing an oral decision in March 1996. He then appealed to the BIA, which, following a roughly five-year delay, summarily affirmed the decision of the IJ in a two-page decision issued May 30, 2001.
Secaida's testimony and documentary evidence before the IJ, as well as Secaida's asylum application, detailed the following about his personal history. Secaida was born and raised in the Canalitos neighborhood of Guatemala City, the capital of Guatemala. At the time he fled Guatemala in 1995, Secaida was twenty-seven years old. Secaida's family had lived in Canalitos for at least three generations. He attended school in Canalitos until he entered the University of San Carlos, Guatemala's only public university, in 1991. In the late eighties, Secaida secured employment working for the municipal government starting as a cleaning person and eventually working full-time in a department that oversaw property matters in the city, both public and private. His last position was in the division that constructed and maintained the city roads.
According to his testimony and asylum application, the following incidents caused him to flee Guatemala and come to this country. Although Canalitos was a residential neighborhood, the residents did not hold individual title to the land they occupied. Rather, the land had been given to the residents of Canalitos and the city collectively in a royal land grant. Members of the neighborhood became concerned that the city would seize the land in an effort to meet its water needs, and they would lose their homes. They were worried in part because the government had a history of divesting individuals of their land, and had recently done so in another neighborhood in the capital.
Residents of Canalitos formed a committee in 1987, as provided for under Guatemala's law, to address the situation. The committee met regularly, and arranged several meetings directly with the mayor of Guatemala City. Secaida's uncle, Jose Maria Rodriguez-Munoz, was the president of the committee from its inception. The committee sought to secure title to the neighborhood property for the residents of Canalitos individually, which consisted of roughly 2,000 families.
Because of his position with the municipal government, Secaida was in a position to help the committee. The property department in which he worked held the land records for the city. When the committee was formed, Secaida was working in a division of the property department that inventoried all the municipal governmental property. As a result, he was privy to files containing the land records for Canalitos. A short time after the formation of the neighborhood committee, a new file on Canalitos was started in the department. One of the documents sent to the file in this time period was a document purporting to change the title to the lands in Canalitos so that they were held solely by the municipality of Guatemala (Guatemala City). The residents of Canalitos had not been informed of the change. Once he uncovered documents that he felt confirmed the rumors that the government was trying to take the land in Canalitos away from the residents, Secaida told his uncle and the rest of the committee about the title change.
Eventually, sometime toward the end of 1989, once the new file was completed, Secaida tried to photocopy it for the committee. Unfortunately, his supervisor caught him doing so and became very upset with him. Secaida was concerned about being caught because, during one of the meetings with the committee, the mayor himself had questioned where the committee was getting its information about the government's actions regarding the neighborhood. As noted by Secaida in his testimony, para-military death squads were active in Guatemala during this time, and were often employed by government officials to intimidate the opposition in political disputes. Nevertheless, Secaida's uncle and the committee continued their efforts to secure title to the land in Canalitos.
In April 1992, Secaida's uncle was shot to death while he tended his store in Canalitos. A gunman simply entered the store, shot Secaida's uncle four times and exited. Secaida was outside the store at the time it happened, speaking with one of his cousins. Secaida heard the shots and saw the gunman as he left. He immediately recognized the man as Byron Ismael Pineda, who also resided in Canalitos. Secaida knew Pineda because Secaida's father had left Secaida's mother when he was very young and had lived with Pineda's mother for a time.
Secaida followed Pineda. As he fled to a waiting car, Pineda realized that Secaida was following him, and he fired two shots at Secaida. Secaida then returned to his uncle's store and accompanied him in the ambulance to the hospital. His uncle died later that same day. Secaida provided a copy of the death certificate at his hearing.
Secaida and his family did not report the murder to the police because they suspected that Pineda was working on behalf of the death squads. In late 1991 before his death, Secaida's uncle had told Secaida that he had received threats from two other individuals — Jose Felipe Ramos-Lopez and Jose Abram Calderon-Ovando — because of his work on behalf of the Canalitos neighborhood, and that Secaida should be careful himself. As the background materials submitted by Secaida point out, members of the death squads and similar unofficial security forces enjoyed impunity for their actions. As one news article noted, "police and military officials were literally getting away with murder, often of Guatemalans involved in human rights work." Howard LaFranchi, Laggard Guatemala Tries an Election, But Winners May be Military, Mafia, Christian Sci. Monitor, Nov. 9, 1995. Both the UN mission to Guatemala and Guatemala's human rights ombudsman's office cited impunity for such activity as the principal obstacle to respect for human rights. Ombudsman: Persistent Violations and Impunity, Cent. Am. Newspak Vol. 10, No. 18, Oct. 2-15, 1995, at 5 (Human Rights Documentation Exchange). A report issued by Human Rights Watch noted that Human Rights Watch, Human Rights Watch World Report 1996, Events of 1995, at 95 (1996).
Secaida felt his suspicions that Pineda was affiliated with the death squads were later confirmed by news articles from early 1994 implicating Pineda, Lopez and Ovando in the July 1993 kidnapping and extortion of a Guatemalan woman married to a journalist for a U.S. paper. The victim lived in the Canalitos neighborhood. He provided copies of the articles at his hearing. The articles noted that both Lopez and Ovando held positions with the Criminal Investigations Unit of the National Police. Secaida observed that only a month after their apprehension for the crimes, all three men were released from jail. Additionally, Secaida's other uncle, brother to Jose Maria Rodriguez-Munoz, worked for the courts in Guatemala and had confirmed that all three men had criminal records.
Secaida became concerned for his own safety after his uncle's death because he had been present, and of the people present, he was the only individual who had recognized Pineda at the time of the shooting. Furthermore, a little over a year after the shooting, Pineda requested, through a third party, a meeting with Secaida to discuss the land situation in Canalitos. Secaida thought better of attending and never went. In the ensuing time, Secaida received threats from Pineda, roughly four in total. Secaida noted in his application that on one occasion Pineda approached him as he was boarding a city bus and said that he would be the next to be killed because he was the only one who knew that it was Pineda who killed his uncle. Despite the...
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