Zavala-Bonilla v. I.N.S.

• Decision Date: 10 April 1984
• Docket Number: P,ZAVALA-BONILL,No. 82-7686,82-7686
• Citation: 730 F.2d 562
• Parties: Elisidaetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 562

730 F.2d 562

Elisida ZAVALA-BONILLA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 82-7686.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Oct. 7, 1983.

Decided April 10, 1984.

Timothy S. Barker and Tinton Joaquin, National Immigration Law Center, Mathew T. Millen, Los Angeles, Cal., for petitioner.

Ingrid Hrycenko, Asst. U.S. Atty., Los Angeles, Cal., for respondent.

Petition to review a Decision of the Board of Immigration Appeals.

Before SKOPIL and PREGERSON, Circuit Judges, and MARQUEZ, District Judge. ^*

PREGERSON, Circuit Judge:

Elisida Zavala-Bonilla petitions for review of a decision of the Board of Immigration Appeals (BIA) denying her applications for political asylum and suspension of deportation. For the reasons stated below, we reverse and remand for further proceedings.

Zavala-Bonilla, a native and citizen of El Salvador, has lived in the United States since 1969. While in El Salvador, she earned her living as a textile worker. She was also a trade union member in El Salvador for nine years, including three as a union executive, and she actively participated in her union's activities, including a nationwide strike in 1969. During the strike, she was confronted by the police and ordered to cease picketing. In the strike's aftermath, two union officials were killed. She left El Salvador and shortly thereafter entered the United States. Since her arrival in the United States, Zavala-Bonilla's union has joined a large anti-government coalition.

Zavala-Bonilla conceded deportability at her deportation hearing on August 29, 1978. Later, she submitted sworn applications for suspension of deportation and political asylum. Her asylum application was supported by four letters from friends in El Salvador, a letter from her union, and numerous press and international organization accounts of oppressive conditions in El Salvador.

Zavala-Bonilla's application for asylum was forwarded to the U.S. State Department for an advisory opinion, as required by 8 C.F.R. Sec. 208.10(b) (1983). The State Department determined that if Zavala-Bonilla's assertions were true, she has a well-founded fear of persecution if she returns to El Salvador.

The Immigration Judge (IJ) denied the asylum application. He found that Zavala-Bonilla failed to sustain her burden of proof on the issue of well-founded fear of persecution. The IJ also denied her application for suspension of deportation.

The BIA affirmed both denials. With respect to the asylum application, the BIA discounted the evidence submitted by Zavala-Bonilla. The BIA concluded that the asylum claim was deficient because it was not supported by objective evidence. The BIA found the general accounts of conditions in El Salvador submitted by Zavala-Bonilla to be of minimal significance because those accounts did not show that she in particular would be persecuted. The BIA also waved aside the four letters from Zavala-Bonilla's friends as gratuitous and non-specific. Finally, the BIA found that the State Department's advisory opinion was undercut by "discrepancies" in Zavala-Bonilla's testimony, and stated that "the marked discrepancies between [Zavala-Bonilla's] sworn answers in her asylum application and her sworn testimony at the hearing demonstrate that her credibility is, at best, highly suspect." The BIA also affirmed the IJ's denial of suspension of deportation on the ground that the extreme hardship claim was based on the political persecution claim that the BIA had denied.

Zavala-Bonilla now pursues relief in this court, contending that the BIA erred in affirming the IJ's adverse rulings on the asylum and suspension of deportation issues.

I Asylum Issue

The provision of the immigration laws under which Zavala-Bonilla requests asylum, 8 U.S.C. Sec. 1253(h) (1982), ¹ was amended in 1980 to "remove[ ] the granting of political asylum from within the discretion of the BIA. The Board must withhold deportation if certain facts exist ...." Chavez v. I.N.S., 723 F.2d 1431, 1432 (9th Cir.1984). We review the record to determine whether the BIA's decision is supported by substantial evidence. McMullen v. INS, 658 F.2d 1312, 1316 (9th Cir.1981). ²

The asylum evidence falls into three categories: (1) general accounts of oppressive conditions in El Salvador, including information that unions and union members are mistreated; (2) accounts of Zavala-Bonilla's union membership and activities and her confrontation with the state police during a general strike; and (3) the U.S. State Department's opinion letter supporting Zavala-Bonilla's political persecution claim.

The BIA does not dispute the general accounts of oppressive conditions in El Salvador but discounts the information as non-specific to Zavala-Bonilla's case. We believe, however, that general information concerning oppressive conditions is relevant to support specific information relating to an individual's well-founded fear of persecution. See Stevic v. Sava, 678 F.2d 401, 406 (2d Cir.1982), cert. granted, --- U.S. ----, 103 S.Ct. 1249, 75 L.Ed.2d 479 (1983) (conditions in country of origin relevant to issue of "well-founded fear of persecution"); cf. Martinez-Romero v. INS, 692 F.2d 595 (9th Cir.1982) (holding that evidence of general oppressive conditions in country to which alien would be deported is not sufficient standing alone to preclude deportation; "some" special circumstances need be present). We now turn to the specific information submitted by Zavala-Bonilla.

To begin with, she submitted four letters from her friends and a fifth from her union in El Salvador. The BIA thought that the letters were "deficient" because they were uncertified copies and "not sworn to as being accurate and made by a competent translator." However, the copies were certified by Zavala-Bonilla's attorney, and two of the five letters had certified translations. Regardless of this, the Immigration and Naturalization Service (INS) employs numerous translators, including the one present at Zavala-Bonilla's hearing, who could easily have verified the translations' accuracy.

Moreover, the BIA denigrated the letters as gratuitous speculations that refer only generally to Zavala-Bonilla's past union activities, the current unemployment situation and human rights violations in El Salvador, and possible dangers Zavala-Bonilla would face were she to return to her native land. The record, however, does not support the BIA's treatment of the letters. There is no evidence that the letters are false. While one might infer that her friends in El Salvador would tend to write supportive letters, it is difficult to imagine, given her circumstances, what other forms of testimony Zavala-Bonilla could readily present. She could hardly ask the authorities in El Salvador to certify that she would be persecuted should she return. Furthermore, the letter writers undoubtedly placed themselves at risk merely by writing. Their understandable fear of reprisal may also account for the letters' lack of specificity. The letters do clearly indicate that Zavala-Bonilla was a union activist in El Salvador. We also note that because Zavala-Bonilla's former union is opposed to the existing government, members may be reticent to divulge union affiliation and union activities in letters addressed to Zavala-Bonilla. See McMullen, 658 F.2d at 1319 (letters from family members improperly discounted by the INS given petitioner's fear of persecution by terrorist group).

Additionally, the BIA concluded that even if current leaders of Zavala-Bonilla's union were subject to political persecution, she personally had nothing to fear because her union joined an anti-government coalition after she left El Salvador. This conclusion is not supported by substantial evidence. The evidence indicates that members of Zavala-Bonilla's union were persecuted before joining the anti-government coalition and that Zavala-Bonilla herself was confronted and harassed by state police during a strike.

The BIA also concluded that "the record simply presents nothing to indicate a continuing and contemporaneous cognizance of the respondent and her past activities ...." Regardless of the applicable burden of proof in political asylum cases, ³ proof of "continuing and contemporaneous cognizance" is not required to show a likelihood of persecution. Requests for asylum are to be considered on a case-by-case basis requiring review of the whole record. See McMullen, 658 F.2d at 1317. ⁴ Further, the BIA disregarded general accounts of oppressive conditions in El Salvador that indicate an increase in attacks on unions and heightened persecution of union members. The BIA also ignored the letters from Zavala-Bonilla's friends indicating the belief that her life might well be endangered should she return to El Salvador.

The BIA also discerned "discrepancies" in Zavala-Bonilla's testimony and concluded that she was not a credible witness. On this basis, the BIA disregarded the State Department's advisory opinion which stated that if Zavala-Bonilla's contentions were true, she had a well-founded fear of persecution. To support its conclusion that Zavala-Bonilla was not credible, the BIA pointed to three purported conflicts between her hearing testimony and her political asylum application. In our view these "discrepancies" were insufficient to undermine her credibility. First, in response to a question on the asylum application inquiring about her political activity, Zavala-Bonilla stated: "As a director of [a labor union] I helped bring about a work stoppage in support of strikers and the State Police ended up killing over one hundred persons. I was mistreated by the State Police in the company of my comrades." The BIA found that she failed to refer to this incident at the hearing. The finding is incorrect. Consistent with her application, Zavala-Bonilla testified before the IJ about her union's sympathy strike in support of the 1969...