Marroquin-Manriquez v. I.N.S.

• Decision Date: 07 January 1983
• Docket Number: MARROQUIN-MANRIQUE,P,No. 82-3163,82-3163
• Citation: 699 F.2d 129
• Parties: Hector Andresetitioner, v. The IMMIGRATION AND NATURALIZATION SERVICE, Respondent. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 129

699 F.2d 129

Hector Andres MARROQUIN-MANRIQUEZ, Petitioner, v. The IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 82-3163.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit Rule 12(6)

Jan. 7, 1983.

Decided Jan. 27, 1983.

Rehearing and Rehearing In Banc Denied Feb. 28, 1983.

Shelley Davis, Margaret Winter, New York City, for petitioner.

Alexander Ewing, Jr., Thomas J. McBride, Asst. U.S. Attys., Philadelphia, Pa., Lauri Steven Filppu, General Litigation and Legal Advice Section, Crim. Div., Donald B. Nicholson, Dept. of Justice, Washington, D.C., for respondent.

Before ALDISERT, GIBBONS and HIGGINBOTHAM, Circuit Judges.

OPINION OF THE COURT

ALDISERT, Circuit Judge.

This petition for review of a Board of Immigration Appeals order presents two major questions: whether petitioner met his burden of proof that he would be subject to political persecution if deported to Mexico; and whether the immigration judge abused his discretion in denying petitioner's discovery motions. We conclude that there was no reversible error, and deny the petition for review.

I.

Hector Andres Marroquin-Manriquez, a native and citizen of Mexico, entered the United States on September 18, 1977, representing that he was a citizen of the United States. Upon questioning by border officials, he admitted that he was a Mexican citizen and that the documents that he presented purporting to show that he was a United States citizen were fraudulent. Two days later he was tried and convicted of violating 8 U.S.C. Sec. 1325 ¹ in obtaining entry into the United States without inspection and by a willfully false representation. Thereafter, INS issued a rule to show cause why petitioner should not be deported. ²

Prior to the hearing, however, Marroquin petitioned for political asylum. Upon inquiry, the Department of State gave its opinion that petitioner did not qualify for asylum, and on December 21, 1978, the INS district director denied his petition. Petitioner then asked the immigration judge to issue letters rogatory to two Mexican officials and a subpoena duces tecum to the legal attache at the American Embassy in Mexico City. These requests also were denied.

At his hearing, Marroquin admitted that he was a citizen of Mexico, that he had attempted to enter the United States using false documents, and that he had been convicted under 8 U.S.C. Sec. 1325. On the basis of these admissions, the immigration judge held that deportability had been established.

The principal focus of the hearing was petitioner's request for asylum and application for withholding of deportation under Sec. 243(h) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1253(h). He produced testimony disclosing that, as a university student, he had been a member of the Student Revolutionary Commission (CER) which was involved in protesting conditions at the University of Nuevo Leon in Monterrey, and that he later became a Marxist. Petitioner testified that in 1974 he had learned of the murder of a fellow member of the CER, that a subsequent newspaper article linked petitioner to the killing, and that upon recommendation of an attorney, he had gone to Baja, California, to stay with relatives. He said that while there he made his decision to leave Mexico for the United States. He testified that he did not go to the American Embassy to seek asylum because he had read in a book that American agents were involved with Mexican authorities in connection with a certain student demonstration.

He testified further that he had entered the United States on April 9, 1974, and traveled to Houston, Texas, where he worked in a bar under the name of Roberto Zamora, that on April 23, 1974, an article appeared in a Mexican newspaper describing a shootout in Mexico between police and four individuals, and that he was identified as one of the four. He denied any involvement in this shooting incident, stating that he was working in Houston at the time. He submitted pay stubs in the name of Roberto Zamora showing Houston employment during the particular week. He also testified that he travelled to Mexico in June 1977 to meet with an attorney about the likelihood of a fair trial on the shooting escapade if he surrendered to Mexican authorities. Petitioner testified that the attorney told him that a fair trial was impossible and that he should stay out of Mexico.

Upon cross-examination he testified that his wife, who lives in Mexico, shares his political views, and that, although the Mexican government discriminates against Marxists, his wife has suffered no persecution. He further testified that he has never been persecuted or jailed in Mexico, that neither his mother nor any of his brothers and sisters has suffered any harassment by the authorities.

Robert K. Goldman, Professor of Law at American University, active in the civil rights movement, testified as an expert witness on petitioner's behalf. He reported that approximately 100 alleged political prisoners who he had interviewed in Mexico all claimed that they had been illegally detained by a so-called "white brigade" or "brigada blanca" made up of government agents. He said that the prisoners alleged that they had been tortured and that most of them alleged that they had been coerced to confess to crimes they did not commit. Notwithstanding his accounts of political persecution in Mexico, however, when asked if in his opinion, Marroquin had a well-founded fear of persecution, Professor Goldman responded that he could not conclusively state one way or the other. Mrs. Rosario Ibarra de Piedra, founder of a committee involved in investigating political incarceration, also offered her opinion that petitioner would be kidnapped and tortured if returned to Mexico. Roger Rudenstein, executive director of the Political Rights Defense Fund, testified that he had received and processed 50,000 documents from the Federal Bureau of Investigation pertaining to the general operations of the FBI in Mexico, and that in his view they would show numerous illegal acts by the FBI. He offered the opinion that the FBI had a hand in what he called the "frame up" of petitioner.

Relying upon petitioner's admission of the use of fraudulent documents upon entering the United States and his subsequent conviction, the immigration judge held that petitioner was deportable as charged. In denying the request for withholding of deportation, the judge noted that neither petitioner nor his family had ever been persecuted in Mexico, that Mexico had enacted an Amnesty Law ³ for political prisoners in 1978, that petitioner had received considerable exposure on a speaking tour throughout the United States, and that he presumably had friends who would speak on his behalf to the Mexican authorities. The immigration judge also noted that other members of the CER had been released from custody, that petitioner had made several trips to Mexico without being apprehended, and that he had been in the United States for three years without applying for political asylum. The judge credited Professor Goldman and Mrs. Piedra's testimony that there was some persecution of political dissidents in Mexico, but determined that the record as a whole did not sustain the claim that Marroquin himself would be persecuted upon his return to Mexico.

On appeal the Board of Immigration Appeals held that petitioner was estopped by his Sec. 1325 conviction from contesting his deportability. With respect to the persecution claim, the Board determined that although there was evidence suggesting that there may have been some political repression and persecution in Mexico, this evidence did not demonstrate the likelihood that the petitioner himself would be subject to persecution. The Board found that, although petitioner had been mentioned in Mexican newspaper articles, the Mexican police are officially interested in the petitioner with respect to only one episode, the alleged shootout with police on April 23, 1974. The Board determined that petitioner had not satisfactorily established that he was not involved in the incident and that, even if the charges were false, he had not shown that he could not get a fair trial in Mexico.

In his petition to this court, Marroquin contends that the Board employed an incorrect burden of proof, that he adequately demonstrated that he would be persecuted upon his return to Mexico, that the immigration judge's denial of his requests for letters rogatory and a subpoena duces tecum was a violation of due process, and that he did not enter this country without inspection or under false pretenses.

II.

Petitioner contends first that the Board applied an erroneous burden of proof. Relying on Stevic v. Sava, 678 F.2d 401 (2d Cir.1982), petition for cert. filed, 51 U.S.L.W. 3484 (U.S. Dec. 10, 1982) (No. 82-973), he argues that although the Board required him to demonstrate a "clear probability" of persecution, recent amendments require a less stringent standard, "well founded fear." Petitioner apparently has overlooked our recent decision in Rejaie v. INS, 691 F.2d 139 (3d Cir.1982), in which we rejected Stevic's analysis and concluded that the new "well founded fear" standard equates with the "clear probability of persecution" standard formerly employed. ⁴ Therefore, we find no error in the Board's use of the "clear probability" standard.

III.

Alternatively, petitioner argues that he met his burden of proof, even if denominated "clear probability." On judicial review of a final order of deportation, the standard of review is whether the Board of Immigration Appeals' denial of petitioner's request for withholding of deportation under Sec. 243(h) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1253(h), was an abuse of discretion. ⁵ We will not disturb the Board's exercise of discretion unless we find "it is arbitrary, irrational or contrary to law." So Chun Chung v. INS, 602 F.2d 608, 612 (3d Cir.1979).

...