836 F.2d 1227 (9th Cir. 1988), 86-7124, Arteaga v. I.N.S.

Docket Nº:86-7124.
Citation:836 F.2d 1227
Party Name:Manuel Diaz ARTEAGA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Case Date:January 13, 1988
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 1227

836 F.2d 1227 (9th Cir. 1988)

Manuel Diaz ARTEAGA, Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 86-7124.

United States Court of Appeals, Ninth Circuit

January 13, 1988

Argued and Submitted Nov. 9, 1987.

As Amended April 6, 1988.

A. Araceli Ramirez, Pittsburg, Cal., for petitioner.

Eileen A. Carty, (INS), Washington, D.C., for respondent.

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Appeal from Petition for Review of an Order of the Board of Immigration Appeals.

Before GOODWIN and FLETCHER, Circuit Judges, and KING, [*] Senior District Judge.

FLETCHER, Circuit Judge:

Petitioner Manuel Diaz Arteaga is a 24 year old native and citizen of El Salvador. At a deportation hearing in December 1984, Arteaga admitted that he had entered the United States without inspection in February 1984, in violation of 8 U.S.C. Sec. 1251(a)(2). He conceded deportability and applied for political asylum in the United States. 1

At his deportation hearing, Arteaga testified about several different incidents. 2 The focal point of Arteaga's claim of persecution is a visit a group of guerrillas paid to him at his house in August 1983. The guerrilla members, former friends of Arteaga, tried to get him to join them in the civil war against the government. When Arteaga refused, stating his intention to remain neutral, the guerrillas said to him: "Even if you don't come, we'll get you." Allegedly put in fear by this threat, Arteaga left his mother and nine sisters and came to the United States.

The immigration judge issued an oral decision denying withholding of deportation and asylum, and granted Arteaga thirty days in which to depart voluntarily. According to the immigration judge, the guerrillas "did not attempt to take him [into] custody or force him into the guerrilla movement," but instead "tried to persuade him to voluntarily join the guerrillas." The Board of Immigration Appeals (BIA, or Board) affirmed the decision of the immigration judge.

DISCUSSION

This court has jurisdiction to review the BIA's decision pursuant to Section 242(a) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1252(a). The factual findings underlying the BIA's decisions on granting or denying asylum and withholding of deportation are reviewed under the "substantial evidence" test. McMullen v. INS, 658 F.2d 1312 (9th Cir.1981). Questions of law, such as whether the BIA applied the appropriate legal standard, are reviewed de novo. Florez-De Solis v. INS, 796 F.2d 330, 333 (9th Cir.1986).

I. Asylum and Withholding Standards

Because Arteaga conceded deportability, the government's burden is satisfied, and Arteaga must show entitlement to relief from deportation. Estrada v. INS, 775 F.2d 1018, 1020 (9th Cir.1985). Arteaga contends that the BIA's decision failed to distinguish the legal standards for withholding of deportation under Sec. 243(h) and political asylum under Sec. 208(a). Arteaga is entitled to mandatory withholding of deportation if his "life or freedom would be threatened in [El Salvador] on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. Sec. 1253(h)(1). In INS v. Stevic, 467 U.S. 407, 430, 104 S.Ct. 2489, 2501, 81 L.Ed.2d 321 (1984), the Supreme Court held that "the 'clear probability of persecution' standard remains applicable to Sec. 243(h) withholding of deportation claims." The Court explained that under the clear probability standard "[t]he question ... is whether it is more likely than

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not that the alien [will] be subject to persecution." Id. at 424, 104 S.Ct. at 2498.

Arteaga qualifies for a discretionary grant of asylum if he shows 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. Secs. 1101(a)(42), 1158(a). The well-founded fear standard "play[s] no part" in the decision whether to withhold deportation, INS v. Cardoza-Fonseca, --- U.S. ----, 107 S.Ct. 1207, 1212, 94 L.Ed.2d 434 (1987), and "is in fact 'more generous' than the clear-probability test." Bolanos-Hernandez v. INS, 767 F.2d 1277, 1282 (9th Cir.1984). See Hernandez-Ortiz v. INS, 777 F.2d 509, 514 (9th Cir.1985); Sarvia-Quintanilla v. INS, 767 F.2d 1387, 1393 (9th Cir.1985). In Cardoza-Fonseca, the Supreme Court concluded:

Our analysis of the plain language of the Act, its symmetry with the United Nations Protocol, and its legislative history, lead inexorably to the conclusion that to show a "well-founded fear of persecution," an alien need not prove that it is more likely than not that he or she will be persecuted in his or her home country.

107 S.Ct. at 1222. The Court pointed out that "[o]ne can certainly have a well-founded fear of an event happening when there is less than a 50% chance of the occurrence taking place." Id. at 1213. The Court explained this by citing a hypothetical example in which a one-in-ten possibility of persecution would give rise to a "well-founded fear." Id.

This court has said that "our case law quite clearly establishes that the legal difference between 'clear probability' and 'well-founded fear' must be respected." Rebollo-Jovel v. INS, 794 F.2d 441, 444 (9th Cir.1986). Accordingly, the BIA decision should make it apparent that the Board "appreciated the necessity of applying separate and discrete standards." Vides-Vides v. INS, 783 F.2d 1463, 1468 (9th Cir.1986).

The BIA has frequently resorted to catchall statements in its asylum decisions that a given petitioner has failed to meet the asylum standard "regardless of whether [petitioner's] claim is assessed in terms of demonstrating a 'clear probability,' a 'realistic likelihood,' a 'reasonable possibility,' or a 'good' or 'valid reason to fear' persecution." Corado Rodriguez v. INS, No. 85-7417, slip op. at 3267 (9th Cir. Mar. 14, 1988); see Vides-Vides, 783 F.2d at 1468; Rebollo-Jovel, 794 F.2d at 446; Cardoza-Fonseca, 767 F.2d 1448, 1450 (9th Cir.1985). Such a catchall analysis may fail to make clear that the BIA...

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