Sarvia-Quintanilla v. U.S. I.N.S.

• Decision Date: 13 June 1985
• Docket Number: SARVIA-QUINTANILL,P,No. 84-7485,84-7485
• Citation: 767 F.2d 1387
• Parties: Jose M.etitioner, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent. . Submitted *
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1387

767 F.2d 1387

Jose M. SARVIA-QUINTANILLA, Petitioner, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 84-7485.

United States Court of Appeals, Ninth Circuit.

Submitted ^* June 13, 1985.

Decided Aug. 8, 1985.

As Amended Aug. 19, 1985.

Peter R. Ruiz, Phoenix, Ariz., for petitioner.

Richard K. Willard, Lauri Steven Filppu, Joan E. Smiley, Washington, D.C., for respondent.

On Petition For Review of a Decision of the Immigration and Naturalization Service.

Before SNEED and BEEZER, Circuit Judges, and RAFEEDIE, ^** District Judge.

SNEED, Circuit Judge:

Jose Mauricio Sarvia-Quintanilla petitions this court for review of the Immigration and Naturalization Service's denial of his application for political asylum and withholding of deportation. Because substantial evidence supports the decision of the Board of Immigration Appeals, we deny his petition.

I. FACTS AND PROCEEDINGS BELOW

The petitioner is a twenty-six year old native and citizen of El Salvador. Before he left his country, he joined the Forces Revolutionales el Loranes (F.R.S.), a leftist political group organized to help poor people and to "overthrow the government." After a few months in the F.R.S. the petitioner says that he realized that some members of the group intended to oppose the Salvadoran government with violence. Because he opposed their violent tactics, the petitioner decided to leave the group. After he told the other members of the group about his decision, the petitioner says that he heard that some of them had threatened to kill him.

The petitioner also says that he is afraid of the government in El Salvador. His older brother killed two men who worked for the government and the petitioner fears that retaliation for his brother's crime might be directed at him. The petitioner also fears that the government will punish him for his brief association with the F.R.S.

In September 1978, the petitioner left El Salvador for Mexico, where he stayed for five months. Then in February 1979 he illegally entered the United States. Sometime later he was deported to Mexico, but returned to the United States, again without inspection.

In December 1980, the petitioner was ordered by the INS to show cause why he should not be deported. In April 1981, at his deportation hearing, the petitioner admitted deportability and requested political asylum in the United States.

At the hearing at which his request for asylum was considered, the petitioner introduced into evidence affidavits from two of his aunts, his mother, and an attorney, all of whom live in El Salvador. The affidavits indirectly supported the petitioner's testimony; one warned that if he returned to El Salvador he "runs the risk of being assassinated." The petitioner also introduced newspaper articles that discussed, in general terms, the problem of terrorism and lawlessness in El Salvador.

The immigration judge admitted a letter from the U.S. State Department that read in part: "Upon careful review of the information submitted, it is our view that the subject has failed to establish a well-founded fear of being persecuted upon return to El Salvador.... We do not have any information regarding his request for asylum to bring to your attention." At the hearing, the petitioner's lawyer asked that he be allowed time to submit more documents to the State Department to support his client's request for asylum. The State Department apparently made its recommendation without having seen any of the affidavits submitted by the petitioner at the hearing.

The immigration judge denied the request on the ground that the affidavits were little more than "emotional appeal[s] to let the [petitioner] stay in the United States. They do not provide any substan[tive] information that the State Department could make any kind of a determination with respect to."

The immigration judge then denied the petitioner's request for asylum. He said in part:

It appears that the [petitioner's] fear of returning to El Salvador is primarily fear of retaliation from his friends. The [petitioner] testified that he has not heard from his friends since departing El Salvador about September of 1978 and he does not know whether they are still in El Salvador or even if they are alive or dead....

I am not satisfied that there is a reasonable fear that the [petitioner] would suffer persecution or other harm if he returns to El Salvador. The [petitioner] admitted that he has lied to suit his needs, his credibility is very much in doubt. For that reason, I accord his testimony very little weight. Even if I believed everything the [petitioner] said, however, I still find no basis upon which to grant his application.

The immigration judge clearly doubted the truth of much of the petitioner's testimony:

The [petitioner] admitted that he has lied to suit his purposes. He lied to get the Mexican passport in Mexico. He lied in order to be deported to Mexico. It appears that [he] will tell whatever story he feels will benefit his situation at the time.

Finally, the immigration judge denied the petitioner's request for voluntary departure and ordered that he be deported to England. If England does not accept him, the petitioner will be deported to El Salvador.

The Board of Immigration Appeals accepted the immigration judge's findings and dismissed the petitioner's appeal. He then filed this petition for review.

II. DISCUSSION

When an alien seeks to avoid deportation because he fears he will be persecuted for his political opinions or activity, two separate provisions of the immigration laws become relevant. Section 208(a) of the Refugee Act of 1980 (codified at 8 U.S.C. Sec. 1158(a) (1982)), allows political "refugees" to be granted asylum in this country. Section 243(h) of the Immigration and Nationality Act, as amended by section 203(e) of the Refugee Act (codified at 8 U.S.C. Sec. 1253(h) (1982)), prohibits the Attorney General from deporting any alien who would be subject to political persecution if returned to his country.

An alien who fears persecution files an INS form called "Request for Asylum in the United States." When the request for asylum pursuant to section 208(a) is made after the initiation of deportation proceedings, it is also treated as a request for relief under section 243(h). 8 C.F.R. Sec. 208.3(b) (1985). The Immigration Judge and the Board of Immigration Appeals are then required to evaluate the alien's application under the criteria of both section 243(h) and section 208(a).

A. Section 243(h): The "Clear Probability" Standard

Section 243(h) prohibits the Attorney General from deporting an alien to a country in which his "life or freedom would be threatened on account of," among other things, his "membership in a particular social group, or [his] political opinion." The Supreme Court has held that the 1980 amendments to the immigration laws did not lower the burden of proof that an alien must satisfy under section 243(h). He still must show a "clear probability" of persecution. ¹ INS v. Stevic, --- U.S. ----, 104 S.Ct. 2489, 2500-01, 81 L.Ed.2d 321 (1984). The "clear probability" standard requires that the alien show that "it is more likely than not" that he will be persecuted. Id. 104 S.Ct. at 2498. If the alien can meet his burden of proof, however, the Attorney General no longer enjoys his traditional discretionary authority to order or withhold deportation. The alien simply cannot be deported. ² Id. at 2496 n. 15.

We have attempted to specify the nature and amount of proof that will meet the clear probability standard of section 243(h). It has been said that "mere assertions of possible fear" are insufficient to establish a clear probability of persecution. Shoaee v. INS, 704 F.2d 1079, 1084 (9th Cir.1983). In addition, we have said that relief under section 243(h) requires "some factual support", some "concrete evidence", to support the claim that persecution is likely. Id.; Khalil v. District Director of the INS, 457 F.2d 1276, 1278 (9th Cir.1972). Each case, however, must be evaluated on its own merits to determine whether the alien's factual support and concrete evidence are sufficient to establish a clear probability of persecution. See McMullen v. INS, 658 F.2d 1312, 1317 (9th Cir.1981).

In Bolanos-Hernandez v. INS, 749 F.2d 1316 (9th Cir.1984), we discussed the clear probability standard in the context of a case in which the only direct evidence of persecution was the alien's own testimony that specific threats had been made against his life. In that situation, we held that such uncorroborated testimony was sufficient to establish a clear probability of persecution but only because (1) the alien offered general documentary evidence indicating that the threats should be considered serious ones; and (2) the immigration judge found no reason to question the alien's credibility. Id. at 1323, 1326. See also Saballo-Cortez v. INS, 761 F.2d 1259 at 1264 n. 3 (9th Cir.1984) (holding that the rule in Bolanos-Hernandez applies only when no question has been raised concerning the alien's credibility and no doubt is expressed that threats were actually made).

Here the petitioner testified that specific threats had been made against his life. He offered no evidence that directly corroborated his testimony; instead he introduced four affidavits from citizens of El Salvador and several published articles discussing, in general terms, the problem of political violence in his country. Under the circumstances of this case, however, evidence of this sort cannot, by itself, meet the petitioner's burden of proving a clear probability of persecution. Zepeda-Melendez, 741 F.2d 285, 289-90 (9th Cir.1984).

Three of the four affidavits offered by the petitioner were from close relatives. Their appeals are, of course, moving, but none of them corroborated the petitioner's testimony that specific threats had been made against him. Nor did any of them say that the members of the...