57 F.3d 857 (9th Cir. 1995), 93-70837, Ramos-Vasquez v. I.N.S.

Docket Nº:93-70837.
Citation:57 F.3d 857
Party Name:Jacobo RAMOS-VASQUEZ, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
Case Date:June 16, 1995
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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57 F.3d 857 (9th Cir. 1995)

Jacobo RAMOS-VASQUEZ, Petitioner,

v.

IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 93-70837.

United States Court of Appeals, Ninth Circuit

June 16, 1995

Submitted Feb. 9, 1995[*]

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[Copyrighted Material Omitted]

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Joseph M. Bacho, San Diego, CA, for petitioner.

Alison R. Drucker, Atty., Dept. of Justice, Civ. Div., Office of Immigration Litigation, Washington, DC, for respondent.

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

Before: TROTT, FERNANDEZ, and T.G. NELSON, Circuit Judges.

Opinion by Judge T.G. NELSON; Concurrence by Judge TROTT.

OPINION

T.G. NELSON, Circuit Judge:

Jacobo Ramos-Vasquez ("Ramos-Vasquez"), a native and citizen of Honduras, petitions for review of a decision of the Board of Immigration ("BIA" or "the Board"). The BIA denied Ramos-Vasquez's request for withholding of deportation under 8 U.S.C. Sec. 1253(h) and for asylum under 8 U.S.C. Sec. 1158(a). Finding Ramos-Vasquez not credible, the BIA majority refused to consider whether his testimony regarding the Honduran

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army's torture and summary execution of deserters established a well-founded fear of persecution. As the dissenting member of the Board observed, the BIA's finding of adverse credibility was not substantiated by the record. We have jurisdiction pursuant to 8 U.S.C. Sec. 1105a, and we grant the petition, vacate the BIA order, and remand.

FACTS AND PROCEDURAL HISTORY

Ramos-Vasquez, a native and citizen of Honduras, was born in 1954, and drafted into the Honduran army at the age of fourteen. Ramos-Vasquez claims that although most draftees are released after one year, he was not permitted to leave the army, in spite of his repeated requests for a discharge. He asserts that because he was a good candidate, he was placed in the intelligence unit, from which voluntary departure was not permitted. After serving in the army for thirteen years, he deserted in October 1982, allegedly because he was ordered to execute a friend who had deserted. According to Ramos-Vasquez, military deserters are routinely punished by being submerged, naked and handcuffed, in a tank of water for nine days, after which they are summarily executed, and their bodies dumped in a river. Ramos-Vasquez testified that on nine occasions he was held for 24 hours in the water tank for refusing to execute deserters.

Sometime after deserting the army, Ramos-Vasquez left Honduras for Guatemala. He entered the United States on March 12, 1983, where he found work as a gardener. On October 21, 1988, he received an Order to Show Cause from the Immigration and Naturalization Service ("INS"), and at a hearing before an immigration judge ("IJ") on November 16, 1988, conceded deportability and obtained leave to apply for asylum, withholding of deportation, or alternatively, voluntary departure.

At his hearing for asylum on May 2, 1989, Ramos-Vasquez testified as to his compulsory thirteen-year service with the army, his conscientious objection to orders to extort money from farm workers on behalf of the army (which orders he says he followed), and to orders to shoot deserters (which orders he says he refused to follow). He asserted that the army will torture and kill him for deserting if he returns to Honduras and maintained that he has knowledge through a friend that the army is still looking for him. He also testified that in 1978 he was twice shot in the head by a soldier who mistook him for his father. Finally, Ramos-Vasquez presented a number of letters testifying to his good character and to his reliability as a worker.

The IJ found that "[w]hile ... the respondent [is], in every way, a credible witness, he simply has not presented evidence to show a clear probability that he would be persecuted in Honduras by the government forces, based on his military desertion." After conducting its own review of the record, the BIA majority affirmed the IJ's finding that Ramos-Vasquez had failed to make a successful claim for withholding of deportation or for asylum. The majority found that the water tank punishment allegedly meted out for Ramos-Vasquez's refusal to execute other soldiers was one "common for refusing to follow orders" and thus not "persecutory in nature." The majority did not consider whether Ramos-Vasquez's fear that he would himself be executed as a deserter should he return constituted a well-founded fear of persecution, apparently because of its conclusion that "the respondent is not a credible witness.... [and its] doubt that the respondent would voluntarily spend so much time in a unit that ostensibly carried out summary executions if in fact the respondent was so repulsed by such duties."

The dissenting member of the Board was "baffled by the majority's statement that the respondent is not a credible witness." She noted that the "affidavits indicate the respondent's reputation for honesty," and that "there is nothing of record indicating any propensity by the respondent for fabricating evidence." She further indicated that she would find "convincing evidence of persecution" on the basis of Ramos-Vasquez's testimony both as to his being ordered to summarily execute other soldiers and as to the punishment he endured in the water tank for refusing to follow such orders. Ramos-Vasquez timely appealed the BIA's decision.

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STANDARD OF REVIEW

This court reviews the BIA's denial of asylum for an abuse of discretion. Acewicz v. INS, 984 F.2d 1056, 1061 (9th Cir.1993). The factual findings underlying the decision, including whether the alien has proved a well-founded fear of persecution, are reviewed for substantial evidence. Shirazi-Parsa v. INS, 14 F.3d 1424, 1427 (9th Cir.1994). Under this standard, a court must review the findings "by a slightly stricter scrutiny than the clear error standard." Id. (quotation omitted). A denial of asylum "must be upheld if 'supported by reasonable, substantial, and probative evidence on the record considered as a whole.' " INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992) (quoting 8 U.S.C. Sec. 1105a(a)(4)).

This court reviews credibility findings by the IJ and the BIA for substantial evidence. Turcios v. INS, 821 F.2d 1396, 1399 (9th Cir.1987). The BIA's denial of withholding of deportation pursuant to section 243(h) is reviewed under the substantial evidence standard. Berroteran-Melendez v. INS, 955 F.2d 1251, 1255 (9th Cir.1992). Legal issues are reviewed de novo. Hartooni v. INS, 21 F.3d 336, 340 (9th Cir.1994).

I. Credibility

We agree with the BIA dissent that the majority's credibility decision is baffling. After hearing his testimony and observing his demeanor at the asylum hearing, the IJ found Ramos-Vasquez "to be, in every way, a credible witness." Affidavits and letters submitted by Ramos-Vasquez further attest to his honesty and good moral character. In short, the record overwhelmingly contradicts the BIA's finding of adverse credibility. 1

The majority's "doubt" that Ramos-Vasquez "would voluntarily spend so much time in a unit that ostensibly carried out summary executions if in fact the respondent was so repulsed by such duties" represents circular reasoning. Ramos-Vasquez repeatedly explained that he was not permitted to leave the army, though he often requested to be discharged. The majority apparently rejects this explanation, though it gives no reason for doing so. In effect, it finds Ramos-Vasquez incredible simply because it does not wish to believe him. Because the majority's finding of adverse credibility is not based on substantial evidence of record, it must be rejected.

II. The Shooting of Ramos-Vasquez

The BIA did not abuse its discretion in finding that the shooting of Ramos-Vasquez by a soldier who mistook him for his father does not constitute evidence of persecution. While we have "held that acts of violence against a petitioner's friends or family members may establish a well-founded fear, notwithstanding an utter lack of persecution against the petitioner herself[,] [w]e have required ... that this violence create a pattern of persecution closely tied to the petitioner. Allegations of isolated violence are not enough." Arriaga-Barrientos v. INS, 937 F.2d 411, 414 (9th Cir.1991) (citation omitted). Because Ramos-Vasquez has not argued that the shooting was in any way due to his own political opinion, we agree with the BIA that "[a] case of mistaken identity, at least under these circumstances, is not tantamount to persecution."

III. Fear of Persecution by Rebels

Ramos-Vasquez argues here, as he did in his application for asylum, that he fears reprisals by anti-military forces who will impute to him the actions of the military if he returns to Honduras. However, he offers no evidence in support of this claim. Because mere apprehension is not enough to establish a well-founded fear entitling an alien to asylum, see Blanco-Comarribas v. INS, 830 F.2d 1039, 1042 (9th Cir.1987), we find that the BIA did not abuse its discretion in rejecting this claim.

IV. Punishment for Desertion as Persecution

Because the BIA majority found Ramos-Vasquez not credible, it did not explicitly

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consider whether his testimony regarding treatment of military deserters constituted evidence establishing his eligibility for withholding of deportation or for asylum. The Board implied its dissatisfaction with the substance of Ramos-Vasquez's appeal by stating at the end of the...

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