Barraza Rivera v. I.N.S.

• Decision Date: 16 March 1990
• Docket Number: No. 89-70025,89-70025
• Citation: 913 F.2d 1443
• Parties: Jose Antonio BARRAZA RIVERA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1443

913 F.2d 1443

Jose Antonio BARRAZA RIVERA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 89-70025.

United States Court of Appeals Ninth Circuit.

Submitted March 16, 1990 ^*.

Decided Sept. 12, 1990.

Susan Giersbach Rascon, Arizona Center for Immigration, Phoenix, Arizona, and Richard A. Boswell, University of Notre Dame Law School, Notre Dame, Indiana, for the petitioner.

Karen L. Fletcher, Office of Immigration Litigation, Washington, D.C., for the respondent.

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

Before FLETCHER, PREGERSON and NELSON, Circuit Judges.

PREGERSON, Circuit Judge:

Jose Antonio Barraza Rivera ("Barraza") petitions for review of a decision of the Board of Immigration Appeals ("BIA" or "the Board"). The BIA dismissed Barraza's appeal and upheld the immigration judge's denial of Barraza's requests for political asylum and withholding of deportation under the Immigration and Nationality Act. 8 U.S.C. Secs. 1158 and 1253(h). The Board also upheld the immigration judge's denial of Barraza's motions for remand of his case to the Bureau of Human Rights and Humanitarian Affairs ("BHRHA") and for discovery of the basis of the BHRHA advisory opinion. We have jurisdiction over Barraza's petition under 8 U.S.C. Sec. 1105a. We grant the petition, reverse the BIA order, and remand for further proceedings.

BACKGROUND

In December 1983, Barraza was forcibly recruited into military service in El Salvador, his home country. He entered training in January 1984 at a military headquarters in the city of La Union, and was trained in weaponry and self-defense for about 20 days. On or about January 13, 1984, Barraza took one or two hours off from training and went into town to apply for a passport. He applied for the passport on the advice of his mother, who was concerned about unlawful acts committed by the military. ¹ He changed from military to civilian clothing to apply for the passport, and did not indicate military service on his Before being dismissed for leave, Barraza was pulled aside from the group by a man he identified in his testimony as Lieutenant Calbo. According to Barraza:

                passport application. 2   After training, Barraza was sent to the city of Morazan for two weeks, where he backed up troops fighting guerrillas.  He never engaged in battle.  Barraza returned to military headquarters in La Union on January 31, 1984.  He and approximately one-half of the 100 soldiers in his unit were given a three-day leave to visit family
                

[H]e said prepare yourself when you return, because we have a commission. We're going to take two men to ... assassinate. And then I said why, it's an order he said, because they have paid me and I need the money. And then he said, what do you prefer, that they kill you or kill them? And then I said okay, as you say, lieutenant....

Barraza returned to formation and was dismissed for leave. He then picked up his passport. On February 4, 1984, he left El Salvador for the United States because, he testified, "it wasn't correct what I was going to be doing."

Barraza was apprehended by the INS near Brownsville, Texas, and was placed in deportation proceedings. He applied for political asylum. ³ The BHRHA prepared an advisory opinion on his application and sent it to the INS pursuant to applicable regulations. ⁴ A hearing on his asylum and withholding of deportation claims was held on December 18, 1985.

Barraza made two preliminary motions regarding the BHRHA advisory opinion. He moved for remand of his case to the BHRHA for further consideration of his asylum application and to compel discovery of the basis of the BHRHA opinion. The immigration judge denied both motions.

At the hearing, Barraza testified that he left El Salvador because he did not want to participate in killing the two men, and that he fears that, if returned to El Salvador, he faces persecution by both the military and the guerrillas. First, Barraza fears being punished for refusing to participate in paid assassinations. Second, he fears that the military will suspect that he is an informant for the guerrillas and will kill him for that reason. To support this claim, he testified that an uncle was beaten severely by soldiers in 1982 for suspected pro-guerrilla activity, and that another uncle and cousin were killed by soldiers, also in 1982. ⁵ Also, Barraza stated that in December 1983, a friend and fellow soldier was killed by a colonel in Barraza's unit at headquarters in La Union after being held for several days by guerrilla captors. The colonel apparently accused this friend of being a guerrilla informant. Third, Barraza fears that the guerrillas will kill him if he is returned to El Salvador because he was a member of the military. To support this claim, he testified that a friend was killed by guerrillas after being identified as a member of the national guard.

Barraza also stated that his family informed him that anonymous threats against him had been attached to the door of his family's home, beginning approximately two months after he entered the Finally, Barraza submitted background documentation regarding El Salvador's civil war, death squad activities, and the military. In particular, he submitted newspaper and magazine articles on increased levels of violence from both sides of the civil war and an Amnesty International report on widespread human rights violations. The Amnesty International report stated that military officials were known to work in "close conjunction" with certain repressive civilian paramilitary groups. Barraza also submitted to the Board on appeal an article that appeared in the March 1986 edition of The Progressive. The article described in detail the extensive involvement of the Salvadoran military in death squad activities, and included specific accounts of military officers ordering soldiers to participate in assassinations requested by wealthy private citizens.

United States. Barraza received two letters from his family just days before his asylum hearing in December 1985 that warned him not to return to El Salvador because of recent anonymous threats. The letters' authenticity was not challenged at the asylum hearing, and the letters were admitted into evidence.

The immigration judge denied Barraza's requests for political asylum and withholding of deportation. The BIA dismissed Barraza's appeal.

DISCUSSION

In his petition to this court, Barraza contends that: (1) denial of his motions for remand to the BHRHA and for discovery of the basis of the BHRHA opinion letter was impermissible under the regulations and denied him due process; (2) the immigration judge and BIA failed to examine adequately the documentary evidence Barraza presented and violated his due process rights; and (3) the BIA erred by finding Barraza ineligible for political asylum and withholding of deportation. We address each argument in turn.

I. State Department Advisory Opinion

Barraza contends that, by denying his motions for remand of his application to the BHRHA and for discovery of the basis of the opinion letter, the immigration judge violated his right to "inspect, explain, and rebut" the advisory opinion under 8 C.F.R. Sec. 208.10(b) (1990). According to Barraza, the advisory opinion contained nothing that could be explained or rebutted, because it contained no information specific to his application and because it did not explain the basis of its conclusion that he failed to establish a well-founded fear of persecution. ⁶

The Fifth Amendment guarantees due process in deportation proceedings. Rios-Berrios v. INS, 776 F.2d 859, 862 (9th Cir.1985). Aliens are also entitled by statute and regulation to certain specified legal protections--for example, a reasonable opportunity to present testimony in their own behalf, 8 U.S.C. Sec. 1252(b); 8 C.F.R. Sec. 242.16(a) (1990), and the opportunity to inspect, explain, and rebut an advisory opinion from the BHRHA, 8 C.F.R. 208.10(b) (1990). We have held that denial of statutory and regulatory rights "may constitute an abuse of discretion requiring remand." Baires v. INS, 856 F.2d 89, 91 (9th Cir.1988). If the prejudice to the alien is sufficiently great, denial of these rights may violate the constitutional guarantee of due process. Id.

We apply a two-part test to decide whether the immigration judge abused his discretion by denying Barraza's motions. First, the immigration judge's decision must have violated Barraza's statutory or regulatory rights; second, if it did, the We find prejudice where an alien's rights are violated "in a manner so as potentially to affect the outcome of the proceedings." United States v. Cerda-Pena, 799 F.2d 1374, 1379 (9th Cir.1986). We have rejected a procedural due process challenge similar to Barraza's on the ground that a petitioner failed to establish prejudice where the immigration judge ruling on the asylum application indicated that he was not relying on the advisory opinion. Pereira-Diaz v. INS, 551 F.2d at 1153-54. In this case, the immigration judge, after denying Barraza's motions, stated: "[T]he weight that I give the document is, of course, another matter and, as you know, [the opinion] is rather conclusionary in its nature and doesn't give specific reasons. I personally don't feel that the document is terribly probative." Further, while Barraza sought information regarding the basis of the BHRHA's opinion, the BHRHA letter states that the BHRHA had no specific information on Barraza's case and indicates that the BHRHA based its opinion on the facts presented in Barraza's application. Barraza presented the same facts to the immigration judge and argued those facts through counsel at his asylum hearing.

violation must have caused Barraza prejudice. Castro-O'Ryan v. United States Dept. of Immigration & Naturalization, 847 F.2d 1307, 1313 (9th Cir.1988). Here, we need not decide whether the regulations give Barraza a right to a more...