Pineda-Hernandez v. U.S. Dept. of Immigration and Naturalization, PINEDA-HERNANDE
| Decision Date | 14 November 1988 |
| Docket Number | No. 86-7557,P,PINEDA-HERNANDE,86-7557 |
| Citation | 862 F.2d 875 |
| Parties | Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Pastoretitioner, v. U.S. DEPARTMENT OF IMMIGRATION AND NATURALIZATION, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Before POOLE, WIGGINS and BRUNETTI, Circuit Judges.
Petitioner is a native and citizen of El Salvador. On August 23, 1985 the INS issued an order to show cause against petitioner. The order charged that petitioner entered the United States near San Ysidro, California without inspection in violation of 8 U.S.C. Sec. 1251(a)(2). Petitioner appeared at a group preliminary deportation hearing convened September 18, 1985 in El Centro, California. Petitioner was not represented by counsel but an interpreter of Spanish was provided. The IJ explained to the group that he was to decide if each person was in the United States illegally and whether "there is anything in the law that would save you from a deportation order." The IJ then addressed each person individually regarding attorney representation. The IJ noted that petitioner had received an attorney information sheet on August 23 and had received a continuance on September 4 so he could obtain counsel. The IJ then gave petitioner another attorney information sheet and asked petitioner if he had obtained a lawyer. Petitioner answered that he had not. The IJ then addressed the group advising them that they were each entitled: to one reasonable postponement to obtain counsel, to confront evidence against them, to present evidence and if found to be in the United States illegally to be considered for relief from deportation. The group stated that they all understood these rights. Later in the hearing, the IJ explained to a group including petitioner that he would question them as to whether they had permission to enter the United States, choice of a country of deportation, fear of returning home, family in the United States, and funds to pay voluntary departure costs. The group indicated they all understood. Petitioner individually admitted to the elements of deportability, stated that he wished to apply for asylum, refused to designate a country of deportation and indicated he could not pay for voluntary departure costs. The IJ concluded the hearing by giving petitioner an I-589 form, which is an application for asylum and for withholding of deportation.
Petitioner's hearing resumed on March 11, 1986 in San Diego, California with a different IJ. An interpreter of Spanish was employed and again petitioner lacked representation. Following an exchange between the IJ and petitioner, wherein the IJ inquired of petitioner's efforts to obtain counsel the IJ concluded that petitioner had been given "a full and fair opportunity to obtain an attorney in this case."
Petitioner submitted no written evidence on the subject of asylum. Petitioner's application for asylum, which was not complete stated that petitioner was subject to "a death order" because two groups, government and guerrilla were searching for him. As required by 8 C.F.R. Sec. 208.7 petitioner's application had been submitted for an advisory opinion to the State Department's Bureau of Human Rights and Humanitarian Affairs (BHRHA). The BHRHA, in a letter dated February 7, 1986 found that petitioner had "failed to establish a well-founded fear of persecution upon return to El Salvador."
Petitioner testified that he had only one direct contact with the guerrillas. In January 1981 the guerrillas asked petitioner to "go with" or "follow" them but petitioner told them that he would not involve himself with them. In April or May of 1982 the guerrillas went to look for petitioner at his home but he successfully avoided them. Petitioner stated that he only knew of one time when the guerrillas went to his home to look for him. Petitioner alleged that the guerrillas detained his father in an effort to ascertain where petitioner was hiding. The guerrillas apparently released petitioner's father upon the request of petitioner's sister. Petitioner implied in his testimony that the guerrillas were persecuting him because they had his name as a man who had been patrolling with the government.
Petitioner also testified that "the government" came to his home twice in April or May of 1982. These persons were looking for him because petitioner didn't want to continue patrolling. However, after twice stating that the government visited his home twice, petitioner began describing a third government visit. Petitioner claimed that on this visit, which occurred in July, 1982, the government had his name on a list as a guerrilla and that they were no longer looking for him because of desertion from patrolling duty. That time petitioner claimed: "They were going to look for me to see what they were going to do with me." Later in his testimony petitioner changed the date of the third visit to June 1982 and embellished the story by stating that the soldiers told his sister that "they had me on their list to kill." Petitioner also stated that he left El Salvador one week after this third visit by the government. When the IJ pointed out that this meant that petitioner had stayed in El Salvador for over a year after the soldiers last came to his house, since petitioner's I-589 indicated he didn't leave El Salvador until July 1983, petitioner commented "I have told you ... June of 1983." And only after the IJ insisted that petitioner had dated the event as occurring in June 1982 did petitioner remark, "I was confused regarding the dates."
Petitioner admitted that although he passed through Mexico en route to the United States he did not inquire about its asylum laws and that he had sent several hundred dollars back to his family during the period in which he was employed in the United States. When asked if he had funds to pay his way out of this country, petitioner responded "I don't have a nickel."
At the conclusion of the March 11, 1986 hearing, the IJ entered his decision ordering petitioner's deportation to El Salvador. The IJ found petitioner ineligible for voluntary departure because he had no funds. He also denied withholding of deportation and asylum while specifically applying the "lesser standard of proof" required at that time by this Court and since endorsed by the Supreme Court in Cardoza-Fonseca. The IJ noted that "conditions in an alien's homeland indicative [of] generalized violence don't satisfy the conditions that an alien would be singled out for persecution." The IJ grounded his denial of relief on two separate bases. First, pointing to petitioner's demeanor and his "conflicting and implausible" "overall story" as well as the fact that petitioner failed to present the letters supposedly stating that both the government and guerrillas were still seeking him, the IJ found lack of credibility. Among the details of petitioner's narrative which the IJ found implausible were (1) that guerrillas searching for petitioner would wait outside his house all night instead of approaching the house and entering and (2) that, if afraid of them, petitioner bluntly would tell the guerrillas that he was not interested in becoming involved with them. The IJ alternatively denied relief because "even accepting ... [petitioner's] claim ... that the government of El Salvador is seeking him out for desertion ... this does not constitute ... a basis to seek political asylum or withholding of deportation."
Petitioner appealed the IJ's decision to the BIA on March 18, 1986 alleging six reasons for the appeal: (1) erroneous adverse credibility finding; (2) denial of due process; (3) errors in evidentiary rulings; (4) abuse of discretion in denial of asylum; (5) failure to base denial of withholding on substantial, reasonable, and probative evidence; and (6) abuse of discretion in denial of voluntary departure. Violations of due process alleged in petitioner's brief included inadequate translating, denial of assistance of counsel, failure of the IJ to adequately discuss the right to counsel and the nature of deportation proceedings, failure of the IJ to "carry out his duty to seek out all relevant information and to assist ... [petitioner] in producing it" and improper conduct of the IJ whom petitioner claims "prevented ... [him] from presenting a complete coherent case."
The BIA rendered its decision on September 12, 1986. The BIA concluded that petitioner had full benefit of due process of law. The Board found no support in the record for any claim of inadequate translation stating that there was no evidence suggesting that petitioner misunderstood any significant question asked of him. The Board also found no impairment of the right to counsel reminding petitioner that he is not legally entitled to appointment of counsel at government expense but only to a reasonable opportunity to arrange for representation on his own.
The BIA likewise concluded that there was no improper conduct on the part of the IJ. The Board found that the transcript of the proceedings indicated that the IJ adequately explained the nature and purpose of the deportation hearing. The Board found petitioner's contention that the IJ failed to seek out all relevant information patently without merit since the burden of eligibility for relief is on the alien and that it is well-established that the IJ's role is not that of advocate for the alien. Petitioner's contentions that the IJ demonstrated improper bias by intimidating petitioner and interfering with his testimony was found to be baseless. The Board further concluded that the failure to show petitioner the BHRHA letter was harmless error and also found no prejudicial error in the...
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