924 F.2d 916 (9th Cir. 1991), 89-70307, Estrada-Posadas v. United States I.N.S.

Docket Nº:89-70307.
Citation:924 F.2d 916
Party Name:Gilma Esperanza ESTRADA-POSADAS, Petitioner, v. U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
Case Date:January 30, 1991
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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924 F.2d 916 (9th Cir. 1991)

Gilma Esperanza ESTRADA-POSADAS, Petitioner,



No. 89-70307.

United States Court of Appeals, Ninth Circuit

January 30, 1991

Argued and Submitted Oct. 1, 1990.

As Amended on Denial of Rehearing

and Rehearing En Banc

April 24, 1991.

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Tom Stanley, Los Angeles, Cal., for petitioner.

Stand Blumenfeld, Asst. U.S. Atty., and Gregg L. Cunningham, Sp. Asst. U.S. Atty., Los Angeles, Cal., for respondent.

Petition for Review of a Decision of the Board of Immigration Appeals.

Before WALLACE and POOLE, Circuit Judges, and THOMPSON, [*] District Judge.

WALLACE, Circuit Judge:

Estrada-Posadas (Estrada) petitions for review of a decision by the Board of Immigration Appeals (Board). The Board dismissed Estrada's appeal, affirming an immigration judge's order of deportation and denial of voluntary departure. Estrada claims that she qualifies for refugee status due to a well-founded fear of persecution, and thus is entitled to relief from deportation. Alternatively, she asserts that she should have been allowed to depart voluntarily. We have jurisdiction over this timely petition pursuant to 8 U.S.C. Sec. 1105a, and deny it.


Estrada is a 38-year-old native and citizen of Guatemala. She first illegally entered the United States in November 1985 with the help of an alien smuggler. Upon the illness and subsequent death of her husband from a heart attack, she returned to Guatemala in April 1986 and lived with her mother. Three months later, she again enlisted the services of a smuggler, and

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reentered the United States. She was apprehended by the Immigration and Naturalization Service (INS) near San Ysidro, California.

The INS instituted deportation proceedings against Estrada for entering the United States without inspection, pursuant to section 241(a)(2) of the Immigration and Nationality Act (Act), 8 U.S.C. Sec. 1251(a)(2). At the deportation hearing in November 1986, Estrada conceded deportability and requested relief based on political asylum and withholding of deportation. In the alternative, she sought voluntary departure.

In support of her claims, Estrada testified that a cousin had been kidnapped in 1985 and that an uncle had been killed in 1986. She stated that relatives on her mother's side of the family had been forced to abandon their lands and move to another part of Guatemala. Estrada testified that she felt similar dangers awaited her if she remained in Guatemala, and stated that she left "[b]ecause of the political situation in [her] country."

At the conclusion of the hearing, the immigration judge denied Estrada's requests for relief from deportation and her application for voluntary departure. Estrada appealed the decision, but the Board dismissed her appeal in April 1989.


Section 243(h) of the Act, 8 U.S.C. Sec. 1253(h), requires the Attorney General to withhold deportation "if the Attorney General determines that such alien's life or freedom would be threatened ... on account of race, religion, nationality, membership in a particular social group, or political opinion." Section 243(h) is a mandatory provision which entitles the alien to a withholding of deportation upon proof of a clear probability of persecution. Diaz-Escobar v. INS, 782 F.2d 1488, 1491 (9th Cir.1986) (Diaz-Escobar ). We review the Board's decision to grant or deny the withholding of deportation for substantial evidence. Id. at 1491-92.

Section 208(a) of the Act, 8 U.S.C. Sec. 1158(a), gives the Attorney...

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