Vilorio-Lopez v. I.N.S.

• Decision Date: 03 October 1988
• Docket Number: VILORIO-LOPE,No. 86-7547,P,86-7547
• Citation: 852 F.2d 1137
• Parties: Mercedesetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1137

852 F.2d 1137

Mercedes VILORIO-LOPEZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 86-7547.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 9, 1987.

Decided July 26, 1988.

As Amended Oct. 3, 1988.

Molly McClure, Heller, Ehrman, White & McAuliffe, San Francisco, Cal., for petitioner.

Eileen A. Carty, Office of Immigration Litigation, Civil Div., Washington, D.C., for respondent.

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

Before SCHROEDER, PREGERSON and BRUNETTI, Circuit Judges.

SCHROEDER, Circuit Judge:

Mercedes Vilorio-Lopez petitions for review of the Board of Immigration Appeals' dismissal of his request for asylum and withholding of deportation pursuant to 8 U.S.C. Secs. 1158(a) and 1253(h).

Vilorio-Lopez is a native of El Salvador who entered the United States on May 23, 1985. The next day, the INS issued an order to show cause why he should not be deported. On June 3, 1985, he requested political refuge in the United States. At his deportation hearing in July, he offered his own testimony, and that of his cousin, in support of his application for asylum and withholding of deportation. The petitioner and his cousin each testified that both a right-wing death squad and left-wing guerrillas had threatened Vilorio-Lopez. The petitioner testified that he is a supporter of the Duarte government and was a member of the Salvadoran Army for one month. On the occasion that twenty armed guerrillas arrived at his house looking for him by name, his cousin of approximately the same age was present but was not sought, threatened, or harmed.

There were inconsistencies in the testimony of petitioner and his cousin concerning the date of the death squad incident, the length of time the men were sheltered from the death squad, and whether they paid for their accommodation. However, the record reflects Vilorio-Lopez's limited command of the English language as well as his difficulty in understanding the questions posed to him at the hearing. Both the petitioner and his cousin stated that they were chased by men on foot, that the death squad carried 45's, that they were sheltered by a third man in his home, and that the incident occurred in the evening.

The Immigration Judge denied the petitioner's application. He found the testimony of neither the petitioner nor his cousin credible due to the inconsistencies. The Immigration Judge did not make a finding that either petitioner or his cousin was an incredible witness. The credibility finding was confined to the credibility of the testimony relating to the death squad incident. The Immigration Judge stated that, because of the inconsistencies, he could not find either version "particularly credible."

The Immigration Judge's doubts were not based upon an assumption of collusion between the two witnesses, for they did not have an opportunity to meet and fabricate stories of threats. The Immigration Judge specifically found that "it can be shown that there certainly was not a discussion for a common story ... [and the cousin] was not present during the testimony of the respondent." Nevertheless, based upon his credibility determinations, the IJ concluded no incidents of persecution had ever occurred and that the petitioner had not demonstrated a well-founded fear of persecution.

Vilorio-Lopez appealed to the Board of Immigration Appeals, and on June 27, 1986, the BIA dismissed his appeal in a written opinion. It made no specific reference to credibility but apparently accepted the Immigration Judge's analysis, concluding that "we find the decision of the immigration judge to be proper and correct." On review in this court, the petitioner asks us to set aside the Board's decision because the credibility findings lack support. He asks us to hold that he has established a "clear probability of persecution," qualifying him for withholding of deportation, as well as the lesser showing of a "well-founded fear of persecution" requisite for discretionary asylum.

The Attorney General may grant asylum to an alien meeting the definition of a "refugee." 8 U.S.C. Sec. 1158(a). The term "refugee" means

any person who is outside any country of such person's nationality ... and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, 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). Thus, the "well-founded fear" standard governs the determination of eligibility for asylum, and such relief is discretionary with the Attorney General. INS v. Cardoza-Fonseca, 480 U.S. 421, 107 S.Ct. 1207, 1211 & n. 5, 94 L.Ed.2d 434 (1987).

The "well-founded fear" standard requires that (1) the alien has a subjective fear, and (2) this fear has enough of a basis that it can be considered well-founded. Blanco-Comarribas v. INS, 830 F.2d 1039, 1042 (9th Cir.1987); Cardoza-Fonseca v. INS, 767 F.2d 1448, 1452-53 (9th Cir.1985), aff'd, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). The evidence must demonstrate more than a "widespread violence affecting all Salvadorians." Zepeda-Melendez v. INS, 741 F.2d 285, 290 (9th Cir.1984). The alien "must present 'specific facts' through objective evidence to prove either past persecution or 'good reason' to fear future persecution." Cardoza-Fonseca, 767 F.2d at 1453.

In implementing this standard, the courts have noted repeatedly that the "well-founded fear" standard is more generous than the "clear probability" standard required for withholding of deportation. See, e.g., INS v. Stevic, 467 U.S. 407, 425, 104 S.Ct. 2489, 2498, 81 L.Ed.2d 321 (1984); Artiga Turcios v. INS, 829 F.2d 720, 724 (9th Cir.1987); Cardoza-Fonseca, 767 F.2d at 1453. Accordingly, although the alien's evidence may fall short of establishing a "clear probability" of persecution, the same evidence may qualify the alien for a discretionary grant of asylum.

Withholding of deportation is governed by 8 U.S.C. Sec. 1253(h). 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." 8 U.S.C. Sec. 1253(h).

Unlike asylum, withholding of deportation is not discretionary; if the alien meets the statutory test, the Attorney General cannot deport the alien. Turcios v. INS, 821 F.2d 1396, 1398 (9th Cir.1987); Espinoza-Martinez v. INS, 754 F.2d 1536, 1539 (9th Cir.1985). The courts have held that an alien meets the statutory test by demonstrating a "clear probability of persecution." Cardoza-Fonseca, 767 F.2d at 1452. The term "clear probability" requires "a showing that there is a greater-than-fifty-percent chance of persecution." Id.

In demonstrating a "clear probability of persecution," the alien must show that "(1) he or those similarly situated are at a greater risk than the general population and (2) that the threat to him is a serious one." Platero-Cortez v. INS, 804 F.2d 1127, 1130 (9th Cir.1986). "There must be some factual support, some specific evidence, or some concrete evidence, to support the alien's claim that persecution likely would be directed toward him as an individual." Id. Again, general evidence of violence in the alien's native country is insufficient alone to establish a clear probability of persecution. Canjura-Flores v. INS, 784 F.2d 885, 888 (9th Cir.1985).

A key factor in finding evidence sufficient for withholding of deportation is whether harm or threats of harm were aimed against the petitioner specifically. For example, we refused to hold that a "clear probability of persecution" had been demonstrated when (1) the petitioner's mother owned a house in a strategic location, and petitioner was a male of military age, Zepeda-Melendez, 741 F.2d at 287; (2) the petitioner testified that he had engaged in extensive political activity, but presented no evidence that the government was aware of his political activities and he was never harassed, arrested, or charged, Garcia-Ramos v. INS, 775 F.2d 1370 (9th Cir.1985).

On the other hand, when the petitioner has shown that harm or threat of harm from political sources has been directed against him or her specifically, we have held that deportation must be withheld. For example, in Turcios, the petitioner testified that he was arrested by the National Police while talking with a university professor in a park. The professor was known for his leftist activities. The petitioner testified that he was jailed, accused of involvement in guerrilla politics, beaten, and tortured. Turcios was forced to sign a blank confession, and was held in confinement for a month. 821 F.2d at 1399. We there held that the petitioner had established a clear probability of persecution. In Bolanos-Hernandez v. INS, 767 F.2d 1277 (9th Cir.1984), the petitioner testified that when he refused to join the guerrillas, they threatened to kill him if he did not join their forces. In Argueta v. INS, 759 F.2d 1395 (9th Cir.1985), the petitioner testified that direct threats were made against him by a death squad, which accused him of belonging to a guerrilla organization. The next day, those same persons tortured and killed the petitioner's brother-in-law.

In this case, the petitioner has encountered problems from both the political left and political right. He has presented corroborated testimony that twenty guerrillas armed with M-16's went to his home looking for him, and that his cousin of the same approximate age, who was present at the time, was not recruited or otherwise harassed. The petitioner has also presented corroborated evidence that he was chased by a right-wing death squad brandishing 45's.

Vilorio-Lopez...