373 F.3d 9 (1st Cir. 2004), 02-2513, Hernandez-Barrera v. Ashcroft

Docket Nº:02-2513.
Citation:373 F.3d 9
Party Name:Fidel Angel HERNANDEZ-BARRERA, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
Case Date:June 09, 2004
Court:United States Courts of Appeals, Court of Appeals for the First Circuit
 
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373 F.3d 9 (1st Cir. 2004)

Fidel Angel HERNANDEZ-BARRERA, Petitioner,

v.

John ASHCROFT, Attorney General, Respondent.

No. 02-2513.

United States Court of Appeals, First Circuit

June 9, 2004

Heard Nov. 6, 2003.

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Nancy J. Kelly, with whom John Willshire and Harvard Immigration and Refugee Clinic of Greater Boston Legal Services, were on brief for petitioner.

Brenda M. O'Malley, Trial Attorney, Office of Immigration Litigation, with whom Peter D. Keisler, Assistant Attorney General, and Linda S. Wernery, Senior Litigation Counsel, Office of Immigration Litigation, were on brief for respondent.

Before LIPEZ, Circuit Judge, CAMPBELL and STAHL, Senior Circuit Judges.

LIPEZ, Circuit Judge.

Fidel Angel Hernandez-Barrera petitions for relief from a decision by the Board of Immigration Appeals (BIA or the Board), denying his claims for asylum, withholding of deportation, and relief under the United Nations Convention Against Torture (CAT) 1. The Attorney General asserts that jurisdiction over this appeal is barred by Section 309(c)(4)(G) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009 (September 30, 1996). IIRIRA § 309(c)(4)(G) states that "there shall be no appeal permitted in the case of an alien who is inadmissible or deportable by reason of having committed a criminal offense covered in [certain enumerated sections of the statute]." Although Hernandez-Barrera admitted to committing several covered offenses in the context of the IJ's determination of his eligibility for asylum or

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withholding of deportation, his final order of deportation was not based on those offenses. Therefore, under our holding in Choeum v. INS, 129 F.3d 29 (1st Cir. 1997), IIRIRA § 309(c)(4)(G) does not apply to bar jurisdiction over his appeal.

Turning to the merits of the petition, we find that the BIA erred by failing to make a finding as to past persecution in evaluating Hernandez-Barrera's asylum claim. Assuming arguendo that the Board did make a finding of past persecution, it still erred by misallocating the burden of proof on changed conditions in the country and by failing to engage in an individualized analysis of the impact of any changed circumstances on Hernandez-Barrera's presumed well-founded fear. In light of these legal errors, we remand to the BIA for further proceedings. 2

I.

Fidel Angel Hernandez-Barrera, a national and citizen of El Salvador, illegally entered the United States on August 12, 1987. 3 On August 13, 1987, the Immigration and Nationality Service (INS) served Hernandez-Barrera with an Order to Show Cause (OSC) charging deportability under former section 241(a)(2) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1251(a)(2)(1998), for entering the United States without inspection. Appearing before an Immigration Judge (IJ), Hernandez-Barrera conceded deportability under INA § 241(a)(2) and applied for asylum, withholding of deportation, and voluntary departure. On December 11, 1987, the IJ found Hernandez-Barrera deportable as charged, denied his applications for relief, and ordered him deported. Hernandez-Barrera appealed the IJ's decision to the BIA.

On January 14, 1991, the Board issued an order indefinitely continuing Hernandez-Barrera's appeal to allow him to apply for Temporary Protected Status (TPS) under Sections 302 and 303 of the Immigration Act of 1990, Pub.L. No. 101-649, 104 Stat. 4978, 5030-38, and to pursue relief under the settlement agreement reached in American Baptist Churches v. Thornburgh, 760 F.Supp. 796 (N.D.Cal.1991) ("ABC settlement agreement"). 4 On June 21, 1991, Hernandez-Barrera registered for benefits under the ABC settlement agreement, requesting a new asylum interview and a decision by the INS on the merits of his asylum claim.

On April 6, 2000, the INS filed a motion to reinstate Hernandez-Barrera's appeal with the BIA, claiming that TPS status for El Salvadorians had expired on June 30, 1992. It argued that the IJ properly denied Hernandez-Barrera's claims for asylum, withholding of deportation, and voluntary departure and urged the BIA to affirm that decision. The INS also stated that Hernandez-Barrera was statutorily ineligible for voluntary departure because he had been convicted of multiple criminal offenses, and it submitted records of the convictions to the Board.

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Hernandez-Barrera opposed the motion to reinstate proceedings, arguing that, pursuant to the terms of the ABC settlement agreement, the Board was not permitted to proceed with his case until the INS afforded him a new interview and de novo adjudication of his asylum claim. He also argued that the INS's evidence regarding his criminal convictions was inadmissible.

On December 11, 2000, the INS filed a second motion to reinstate Hernandez-Barrera's deportation proceedings. This motion reiterated the INS's position that Hernandez-Barrera was ineligible for TPS because that status had expired for El Salvadorians. In addition, it claimed that Hernandez-Barrera was ineligible for benefits under the ABC settlement agreement because he had been convicted of two aggravated felony offenses: larceny of property, and assault and battery. 5 It submitted supporting conviction records to the Board. The INS requested that proceedings be reinstated and remanded to the IJ for "[a] determination of respondent's deportability as an aggravated felon ... and a determination of whether he is thereby barred from asylum and voluntary departure."

On January 9, 2001, the BIA granted the INS's motion to reinstate proceedings. It noted that the INS had asserted that Hernandez-Barrera had been convicted of multiple criminal offenses, including two aggravated felonies, and had submitted conviction documents that appeared to relate to Hernandez-Barrera. The Board stated that individuals convicted of an aggravated felony are statutorily ineligible for asylum or voluntary departure, and are not entitled to a de novo asylum adjudication under the ABC settlement agreement. The BIA granted the INS's motion to reinstate the appeal and remanded the case to the IJ for further proceedings to determine Hernandez-Barrera's eligibility for asylum and voluntary departure. Importantly for the analysis in this case, the Board did not instruct the IJ to determine whether Hernandez-Barrera was deportable as an aggravated felon.

At a hearing before a second IJ, Hernandez-Barrera admitted that he had been convicted of assault and battery, receiving stolen property, and larceny of less than $250. He also conceded that the INA defined the three crimes as aggravated felonies and that because of those offenses, he was no longer eligible for relief under the ABC settlement agreement. Hernandez-Barrera argued, however, that the mandatory bar to asylum for individuals convicted of aggravated felonies did not apply to him because he had filed his asylum claim in 1987, when the mandatory bar for aggravated felonies was not yet in effect. He also filed a request for relief under the CAT, and the IJ permitted supplemental testimony from Hernandez-Barrera and supplemental briefing from both parties on the CAT issue.

In support of his claims for asylum, withholding of deportation, and relief under the CAT, Hernandez-Barrera testified that he was forcibly conscripted into the El Salvadorian military in January 1984, when he was sixteen years old, to fight in the country's 12-year civil war. He stated that he did not support either the government or the guerrillas, and was morally opposed to killing, but could not leave the army because he would have been punished and branded a guerrilla. During the 11-12 months that he spent in the military,

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Hernandez-Barrera witnessed frequent killing and torture of prisoners and civilians by his commanders and fellow soldiers. When he refused to kill unarmed prisoners because of his moral and religious convictions, he was subjected to abuse, torture, and threats of death. On one occasion, he was hung upside down from his legs and swung from side to side; on another, his commanders threw him head first into a wall. As a consequence of refusing a direct order to shoot an unarmed prisoner, he was beaten severely, called a "faggot" and "coward," and tortured in a basement room reserved for that purpose. He was then held in a small cell for approximately twenty days, during which time he was continuously beaten, deprived of sleep and food, and subjected to water torture and other forms of abuse.

In December 1984, he was shot in the leg during a battle. After being treated for the wound, he was ordered to return to combat. He did not want to return because he was physically weak and could not run on his injured leg and because he morally objected to the actions of the military and did not wish to participate in the killings. At the same time, he feared that he would be imprisoned or tortured for refusing to fight and that he would be branded a guerrilla. Consequently, Hernandez-Barrera deserted the army and fled the country by plane to Mexico about a month later. He entered the United States by foot in 1985.

On April 17, 2002, in an oral opinion issued from the bench, the IJ determined that Hernandez-Barrera had been convicted of three aggravated felonies, including assault and battery, for which he received a sentence of one year; receiving stolen property, for which he received a suspended sentence of two and a half years; and larceny of less than $250, for which he received a sentence of one year. He further determined that the changes in the law subsequent to Hernandez-Barrera's initial application for asylum applied retroactively to his asylum claim. The...

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