Bolanos-Hernandez v. I.N.S.

Decision Date14 June 1985
Docket NumberNo. 83-7608,BOLANOS-HERNANDE,P,83-7608
Citation767 F.2d 1277
CourtU.S. Court of Appeals — Ninth Circuit
PartiesEspectacionetitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

Eliseo Z. Sisneros, California Rural Legal Assistance Foundation, Berkeley Law Foundation, El Centro, Cal., Paula D. Pearlman, Imperial Valley Immigration Project, Centro Asuntos Migratorios, El Centro, Cal., for Espectacion Bolanos.

Madelyn E. Johnson, Dept. of Justice, Washington, D.C., for respondent.

Appeal from an Order by the Board of Immigration Appeals.

Before ELY, * FLETCHER, and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

Espectacion Bolanos-Hernandez petitions for review of the Immigration and Naturalization Service's denial of his application for "withholding of deportation" and political asylum. We find that the decision of the Board of Immigration Appeals is not supported by substantial evidence. Bolanos meets both the clear probability and well-founded fear of persecution standards. He therefore may not be deported and is eligible for asylum.

I. BACKGROUND

Bolanos, a native and citizen of El Salvador, entered the United States in September 1982 without inspection by an immigration officer. During his deportation hearings, which commenced the following month, he conceded deportability on the basis of his illegal entry but filed an application for asylum and for a determination that he was not deportable because he would be subject to political persecution.

Bolanos testified that for two years he had been a member of the Partido National de Reconciliation, a right-wing party in El Salvador. He had also been in the army and had been a member of Escolta Militia, a voluntary civilian police squad that guards against guerrilla infiltration for the government. According to Bolanos, the guerrillas believe that, because of his membership in these groups, he would be particularly useful to them in their plans to infiltrate the government. When he refused to join the guerrillas, they threatened him, telling him they would kill him if he did not join their forces or, alternatively, leave the country. Bolanos took this threat seriously because the guerillas had killed five of his friends and had used similar tactics to recruit his brother--whom he believes they may have subsequently killed. 1 Bolanos left El Salvador eight days after the guerillas made their threat.

In addition to his own specific, individualized basis for fearing persecution, Bolanos testified about the great danger that male youths in general face in El Salvador. He also introduced newspaper articles attesting to the general conditions of violence, armed conflict, and guerrilla control in large portions of that country.

The government concedes that Bolanos has indicated his commitment not to be affiliated with either side in the political struggle--"his desire to remain neutral and not be affiliated with any political group." The Immigration Judge, however, determined that Bolanos had not shown that any danger he might be subject to would be because of his political opinion, and both the Immigration Judge and the Board of Immigration Appeals determined that Bolanos failed to show that he had a specific reason to fear persecution that distinguished his situation from that of other Salvadorans. We disagree.

II. STATUTORY FRAMEWORK

The Refugee Act of 1980, Pub.L. No. 96-212, 94 Stat. 102 (codified in scattered sections of 8 U.S.C. (1982)), amended the Immigration and Nationality Act so as to bring United States statutory provisions into conformity with the analogous provisions of the United Nations Convention Relating to the Status of Refugees. 2 In passing the Refugee Act, Congress was motivated by the enduring "historic policy of the United States to respond to the urgent needs of persons subject to persecution in their homelands," and sought to provide "statutory meaning to our national commitment to human rights and humanitarian concerns." 3

There are two code sections that come into play when an alien petitions for relief from deportation because of a threat of political persecution. Section 208(a) of the Refugee Act of 1980, 8 U.S.C. Sec. 1158(a) (1982), provides for asylum for political refugees, while section 243(h) of the Immigration and Nationality Act, as amended by section 203(e) of the Refugee Act, 8 U.S.C. Sec. 1253(h), prohibits the Attorney General from deporting an alien whose life or freedom would be threatened. When an alien fears political persecution and seeks, on that ground, to block deportation proceedings, the INS provides him with a form entitled "Request for Asylum in the United States." Requests for asylum under section 208(a), when made after the initiation of deportation proceedings, are "also ... considered as requests ... [under] section 243(h)." 8 C.F.R. Sec. 208.3(b) (1983). 4 The Immigration Judge and the Board of Immigration Appeals are required to evaluate such requests under both (i) the criteria for determining whether, under section 243(h), the Attorney General is prohibited from deporting the alien, and (ii) the criteria for determining whether the alien meets the eligibility requirements for asylum under section 208(a). See INS v. Stevic, --- U.S. ----, 104 S.Ct. 2489, 2497 & n. 18, 81 L.Ed.2d 321 (1984).

The amended version of section 243(h) provides in relevant part:

(h)(1) The Attorney General shall not deport or return any alien ... to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.

The Supreme Court has recently held that, although the Refugee Act amended the language of section 243(h) of the Immigration and Nationality Act, the change in language did not liberalize the standard of proof an applicant must satisfy. INS v. Stevic, --- U.S. ----, 104 S.Ct. 2489, 2496, 81 L.Ed.2d 321 (1984). The alien still must show a clear probability of persecution; otherwise he cannot invoke the section 243(h) bar to deportation. The term "a clear probability" means "a likelihood": "The question under [the section 243(h) ] standard is whether it is more likely than not that the alien would be subject to persecution." Id. 104 S.Ct. at 2498 (footnote omitted). 5

Although the standard of proof under section 243(h) remained unchanged, Congress did significantly curtail the Attorney General's discretionary authority over deportations when it passed the Refugee Act. Previously, even when an alien showed a clear probability of persecution, the Attorney General had the discretion to order or withhold deportation. 6 Now, the amended section prohibits the Attorney General from deporting aliens who make that showing. See Stevic, 104 S.Ct. at 2496 n. 15; Chavez v. INS, 723 F.2d 1431, 1432 (9th Cir.1984); McMullen v. INS, 658 F.2d 1312, 1316 (9th Cir.1981). 7 Thus, the term used to describe the discretionary form of relief available under the former version of the statute--"withholding of deportation"--does not fit the operational scheme now set forth in the statute. The form of relief mandated by the amended section 243(h) is better described as a prohibition against deportation. 8

Despite the 1980 amendments, the Attorney General retained his discretionary authority to grant asylum to aliens under some circumstances. An alien who does not meet the clear-probability standard applicable under section 243(h), but who has a well-founded fear of persecution, is eligible for a discretionary grant of asylum. Such a person qualifies as a "refugee" as that term is defined in section 101(a) of the Refugee Act:

[A]ny person who is outside any country of such person's nationality ... and who is unable or unwilling to return to ... that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion....

8 U.S.C. Sec. 1101(a)(42)(A) (1982); see also 8 C.F.R. Sec. 208.5 (1983). As the Supreme Court made clear in Stevic, 104 S.Ct. at 2497 n. 18, the determination of refugee status under section 101 is based upon factual findings. Once an alien qualifies as a refugee, the Attorney General has discretion to grant asylum under section 208(a) of the Refugee Act of 1980, 8 U.S.C. Sec. 1158(a) (1982). See also 8 C.F.R. Sec. 208.8 (1983) (factors governing discretion). 9

Although declining to decide the meaning of the phrase "well-founded fear of persecution," see Stevic, 104 S.Ct. at 2501, the Supreme Court was willing to assume for purposes of that case that the standard is "more generous than the clear-probability-of-persecution standard." Stevic, 104 S.Ct. at 2498. 10 We believe the assumption was correct and that the well-founded-fear standard is in fact "more generous" than the clear-probability test. The difference in language between section 243(h) and section 208(a) strongly supports the conclusion that the standard under the latter is more liberal. 11 Section 243(h) is phrased in objective terms: "such alien's life or freedom would be threatened." (Emphasis added.) Section 208(a), in contrast, allows for a partially subjective showing: "a well-founded fear of persecution." 12 Moreover, both sections are applicable to aliens present in the United States. See Stevic, 104 S.Ct. 2497 & n. 18. It is apparent that Congress provided for the possibility of mandatory relief under section 243(h) and discretionary relief under section 208(a) for the same persons. It seems reasonable to conclude that Congress did so because an alien entitled to relief under section 243(h) will have established the clear probability that his or her life or freedom is actually threatened, while an alien who...

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