761 F.2d 1259 (9th Cir. 1984), 83-7897, Saballo-Cortez v. I.N.S.

Docket Nº:83-7897.
Citation:761 F.2d 1259
Party Name:Gustavo A. SABALLO-CORTEZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Case Date:December 21, 1984
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1259

761 F.2d 1259 (9th Cir. 1984)

Gustavo A. SABALLO-CORTEZ, Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 83-7897.

United States Court of Appeals, Ninth Circuit

December 21, 1984

Argued and Submitted June 8, 1984.

As Amended May 28, 1985.

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Elisec Z. Sisneros, California Rural Legal Assistance Foundation, Berkeley Law Foundation, Paula D. Pearlman, Imperial

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Valley Immigration Project, Centro Asuntos Migratorios, El Centro, Cal., for petitioner.

Marshall Golding, Dept. of Justice, Washington, D.C., for respondent.

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

Before WALLACE, PREGERSON, and ALARCON, Circuit Judges.

AMENDED OPINION

ALARCON, Circuit Judge:

Gustavo A. Saballo-Cortez (Saballo-Cortez) appeals from the order of the Board of Immigration Appeals (BIA) denying his application for withholding of deportation under 8 U.S.C. Sec. 1253(h) and for asylum under 8 U.S.C. Sec. 1158(a). 1

I

Issues On Appeal

Saballo-Cortez raises the following issues in his brief filed with this court.

One. The immigration judge and the BIA should have applied the burden of proof set forth in Stevic v. Sava, 678 F.2d 401 (2d Cir.1982), rev'd, INS v. Stevic, --- U.S. ----, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984).

Two. The denial of his application was not supported by substantial evidence.

Three. The immigration judge violated his right to counsel, due process and equal protection by failing to inform counsel that he had taken possession of a copy of an arrest warrant and had requested a police and security check from the American Embassy in Managua.

II

Discussion

  1. Burden of Proof

    Saballo-Cortez argued in his brief that the immigration judge and the BIA should have applied the standard of proof adopted in Stevic v. Sava, 678 F.2d 401 (2d Cir.1982), rev'd, INS v. Stevic, --- U.S. ----, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984), in reviewing his "subjective evidence" of a well-founded fear of persecution. In Stevic, the petitioner filed a motion to reopen his deportation proceedings based on a claim of persecution under section 243(h) of the Immigration and Nationality Act of 1952, 8 U.S.C. Sec. 1253(h). The BIA denied the motion on the ground that Stevic had failed to present a claim containing a prima facie showing of "a clear probability of persecution directed at the individual respondent." Stevic v. Sava, 678 F.2d at 403-04. The court of appeals in Stevic reversed the BIA's denial of the motion holding that it was based on a legal test which was no longer the law. Id. at 409.

    After the briefs were filed in the present matter, the Supreme Court issued its opinion reversing the Second Circuit's decision in Stevic v. Sava. INS v. Stevic, --- U.S. ----, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). The Court held that "an alien must establish a clear probability of persecution to avoid deportation under Sec. 243(h)" 104 S.Ct. at 2492. The Court concluded that the clear probability standard "requires that an application be supported by evidence establishing that it is more likely than not that the alien would be subject to persecution on one of the specified grounds." 104 S.Ct. at 2501. Thus, Saballo-Cortez's contention that the immigration judge and the BIA were required to follow Stevic v. Sava is no longer tenable with respect to his application for withholding of deportation in light of the Supreme Court's express holding in INS v. Stevic. To the extent that the clear probability of persecution test was applied in this matter to the application for withholding of deportation, no error occurred.

  2. The Standard of Proof For Asylum Claims

    The Supreme Court declined to decide the meaning of the phrase "well-founded

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    fear of persecution" which is made applicable by the terms of the Immigration and Nationality Act and regulations to requests for discretionary asylum since that issue was not presented in INS v. Stevic, 104 S.Ct. at 2501. Because the instant case turns on whether Saballo-Cortez met his burden of persuading the immigration judge and the BIA that his testimony was credible, we need not determine the proper standard of proof necessary to make a prima facie showing of a well-founded fear of persecution under Saballo-Cortez's claim for asylum. We note that the BIA found that Saballo-Cortez failed to meet his burden of proof "whether his claim is assessed in terms of whether he has demonstrated 'clear probability,' 'good reason,' or 'realistic likelihood' of persecution." Thus, we cannot say on this record that the BIA improperly applied the clear probability of persecution standard, as claimed by Saballo-Cortez.

  3. Did Saballo-Cortez Meet His Burden of Persuasion?

    A petitioner seeking withholding of deportation and asylum must first present sufficient facts to establish a prima facie case that there is a clear probability of persecution as to his 1253(h) claim and a well-founded fear of persecution under the discretionary 1158(a) claim. Secondly, he must persuade the immigration judge and the BIA that his evidence is credible.

    The immigration judge and the BIA were not persuaded that Saballo-Cortez was a credible witness. We must decide if that finding was substantially supported by the evidence in the record. McMullen v. INS, 658 F.2d 1312, 1316-1317 (9th Cir.1981). If the record supports the BIA's finding that the testimony was not credible, then Saballo-Cortez has failed to present substantial evidence to compel a mandatory withholding of deportation. Where the facts presented are not credible, it is also not an abuse of discretion for the BIA to deny asylum. 2

  4. Pertinent Facts

    The immigration judge and the BIA made their determination that Saballo-Cortez's testimony was not truthful based on a review of the facts set forth in his application and his testimony.

    1. The Application.

      In a sworn application, signed under penalty of perjury, Saballo-Cortez recited the following facts:

    2. He was a 25 year old native and citizen of Nicaragua.

    3. He was employed at the Embotelladora Melca, Nicaragua until December, 1982.

    4. He arrived in San Ysidro, California, on December 2, 1982.

    5. He was issued a passport in Nicaragua in October, 1982.

    6. He was issued a Tourist Visa from Mexico in November, 1982.

    7. He did not apply for a United States Tourist Visa because he did not believe he was eligible to apply.

    8. Because of the "Sandinista Rule" in Nicaragua, he would be "highly susceptible to persecution and/or execution."

    9. By departing from Nicaragua, he has expressed a political view adverse to the Sandinista Rule by refusing to live under their government's control, thus "rendering me [subject] to persecution and/or execution."

    10. The fact that he has sought asylum would make him "a prime target for persecution" because he presents a great threat to their political control in Nicaragua.

    11. Neither he nor any member of his immediate family has been "mistreated" by the authorities in Nicaragua because of race, religion, nationality, political opinion, or membership in a particular social group.

      Page 1263

    12. He traveled through Honduras, El Savador, Guatemala, and Mexico after leaving Nicaragua, but "had no meaningful stay in any country."

    13. He was deprived of his right to buy food by the Comite Defensa Sandinista because he refused to serve as a guard in Managua, Nicaragua.

      When shown his sworn application at the hearing during cross-examination, Saballo-Cortez replied that he could not read English. The application is in English.

      When asked if the application was accurate in stating that he passed through Honduras, El Savador, and Guatemala, Saballo-Cortez replied that there were mistakes in the answers set forth therein.

    14. Saballo-Cortez's Testimony

      On direct examination, Saballo-Cortez testified as follows. He does not wish to return to Nicaragua because "over there I feel I am persecuted by the Sandinista army." They have threatened him "many times." "They have taken my rights away from me to work in my country" because he did not want to serve in the military.

      When asked to describe the threats, Saballo-Cortez replied that he was threatened "about two times." In January, 1982 he was threatened by a man whose name he did not know, but his nickname is "Caypal." He claimed that Caypal "took over the security of the state." Caypal told him that he would be found dead in a field with his eyes "full of ants" because of his refusal to serve in the military or join the neighborhood of Sandinistas.

      In October of 1982, he was threatened again by the same man with "the same threat" because of his failure to serve in the military.

      He was also recruited to join the military by other men who would come in the day or at midnight to get him to sign some papers. The men came to his house five times. As a result, Saballo-Cortez went to sleep somewhere else. He could only identify one of the recruiters as "Carlos". Military service is compulsory in Nicaragua.

      He testified that he was recruited to join the Comite for the defense of Sandinistas (CDS) because he worked for Coca-Cola in the "department of propaganda." Because of his refusal to serve in the CDS, he did not receive a food card which would have entitled him to pay less for his food. He was also denied a "permit of my license for my work." The refusal denied him the right to work in his country.

      He was also "denounced" for "contraband of arms" in the middle of 1981 and detained for three hours.

      On cross-examination, Saballo-Cortez testified that he was issued a passport by the present Sandinista government on September 30, 1982. He experienced no problem in obtaining a passport. It took only one week to...

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