Alvarado-Carillo v. Immi. & Natural. Serv.

• Decision Date: 01 August 2000
• Docket Number: ALVARADO-CARILL,Docket No. 98-4305,PETITIONER-APPELLANT,RESPONDENT-APPELLEE
• Citation: 251 F.3d 44
• Parties: (2nd Cir. 2001) COSME, v. IMMIGRATION & NATURALIZATION SERVICE,
• Court: U.S. Court of Appeals — Second Circuit

Page 44

251 F.3d 44 (2nd Cir. 2001)

COSME ALVARADO-CARILLO, PETITIONER-APPELLANT, v. IMMIGRATION & NATURALIZATION SERVICE, RESPONDENT-APPELLEE.

Docket No. 98-4305

August Term, 2000

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

Argued October 20, 2000

Decided May 8, 2001

Petition for review of a July 21, 1998 decision of the Board of Immigration Appeals denying petitioner's application for asylum and for withholding of deportation. We vacate the Board of Immigration Appeal's holding that petitioner failed to meet his burden of proof regarding the existence of past persecution or a well-founded fear of future persecution and remand for further proceedings consistent with this opinion.

Vacated and remanded.

[Copyrighted Material Omitted]

Anne Pilsbury (Amelia Shogan, on the brief), Central American Legal Assistance, Brooklyn, NY, for Petitioner.

Meredith E. Kotler, Assistant United States Attorney for the Southern District of New York, New York, NY (Mary Jo White, United States Attorney, Diogenes P. Kekatos and Gideon A. Schor, Assistant United States Attorneys, on the brief), for Respondent.

Before: Cardamone, Sotomayor, and Katzmann, Circuit Judges.

Sotomayor, Circuit Judge

Cosme Alvarado-Carillo ("petitioner"), a native of Guatemala, petitions for review of a July 21, 1998 decision by the Board of Immigration Appeals ("BIA") denying his applications for asylum and for withholding of deportation (the "BIA Opinion").¹ The BIA explicitly rejected the grounds upon which an immigration judge ("IJ") had previously denied petitioner's applications, but reached the same result based on its identification of a different set of testimonial and evidentiary defects. We find that the BIA Opinion erroneously ignored a substantial portion of petitioner's testimony and other evidence regarding the activities for which he was allegedly persecuted, thereby distorting the BIA's evaluation of the plausibility of petitioner's overall claim and the significance of two inconsistencies in petitioner's testimony. In addition, we find the BIA's conclusion concerning another alleged defect lacks substantial evidence in the record, and that the BIA misapplied its own standard with respect to when an applicant is required to provide additional documentary corroboration. Thus, we vacate the decision but, mindful of the deference generally granted to the BIA, we remand to permit the BIA to re-evaluate petitioner's claim in light of this opinion.²

BACKGROUND

Alvarado-Carillo entered the United States in April 1993. In an Order to Show Cause and Notice of Hearing dated August 2, 1994, the Immigration and Naturalization Service ("INS") charged that he was deportable because he had entered the United States without being inspected by an immigration officer. Petitioner conceded deportability at a hearing on September 13, 1994, but was granted the opportunity to file applications for asylum, withholding of deportation, and voluntary departure. Petitioner's counsel filed the applications on November 12, 1994.

Prior to a scheduled hearing date of October 20, 1995, petitioner became unable to afford the continued services of his counsel and retained new attorneys from Central American Legal Assistance, a non-profit organization. His new attorneys sought and received an adjournment of the hearing. Subsequently, petitioner's new attorneys became aware that the asylum application filed by petitioner's first attorney was a grossly inaccurate mistranslation of petitioner's Spanish language account of his persecution in Guatemala. On December 1, 1995, petitioner amended his asylum application by submitting an affidavit, dated November 20, 1995, explaining his inability to speak English and providing a more accurate and complete account of his alleged persecution in Guatemala (the "Affidavit").

According to the Affidavit and petitioner's subsequent hearing testimony, petitioner's persecution at the hands of the Guatemalan military was based on: 1) his role in organizing and leading a labor union, the Association of Dock Workers (known by its Spanish acronym ASTRAPORT), in 1984 during his employment as an accountant at a large semi-private Guatemalan import/export company located at the Puerto Barrios port; 2) his subsequent two-year employment in the mid-1980s at the University of San Carlos, a university whose students and faculty have historically been persecuted by the Guatemalan military; and 3) his friendship with a guerrilla leader, whom he met in 1990 while working for a wood refinery that cut and shipped wood from a jungle area outside the capital city of Guatemala.

Petitioner stated in the Affidavit that his persecution began in 1984 and continued until his departure from the country in 1993. During that time, he claimed, among other things, that he was removed from the union by the government and placed for fifteen days under a form of house arrest that required him to report every morning and afternoon to the local penitentiary. According to the Affidavit, after being fired from his job at the import/export company, he was subjected to physical threats that included: 1) surveillance of his home by armed men in cars of the type commonly known to be used by death squads; and 2) a summons to the Presidential Palace in July 1985, just prior to petitioner's commencement of a job at the University of San Carlos, where he was warned by an army corporal that the army "didn't want any problems with people like [petitioner] at the University of San Carlos" and that he should not associate with "undesirable people" there. Petitioner also claimed to have suffered severe economic persecution in the form of blacklisting that eventually reduced petitioner, a trained accountant, to selling food from carts in the street.

Even at that point, however, petitioner maintains that he continued to be a target for persecution. Specifically, the Affidavit states that "[o]n February 14, 1993, around midnight, the [food] carts were set on fire. Neighbors said that a military truck had come, and some men, dressed as civilians, had set the fire." On February 16, 1993, petitioner was told by a member of the Criminal Investigations Bureau that he was required to present himself again at the Presidential Palace to discuss the fire. Petitioner asserts that to avoid problems, he agreed to sign a statement that the fire had been an accident, and that he was subsequently told by the official interviewing him that he "should leave the country, because . . . `You will die of hunger here.'" Petitioner stated that this was his second visit to the Presidential Palace and that "[i]t is commonly known that the third time you are called in, you can be `disappeared' or killed." Shortly thereafter, petitioner left the country.

At a December 12, 1995 hearing, petitioner testified through an interpreter 0about his alleged persecution and submitted certain documentary corroboration into evidence. That corroboration consisted of the first page of the minutes of a September 4, 1984 ASTRAPORT meeting, which indicated that petitioner was relinquishing his position as treasurer of the union, and a variety of background documentation, including reports of human rights organizations and newspaper articles that described, among other things, the Guatemalan military's hostility towards, and violent actions against, union leaders and members of the University of San Carlos.

On cross-examination, the INS attorney randomly selected dates from the Affidavit and asked petitioner what he was doing on those dates. After petitioner had answered several such questions in a manner that made it clear to the IJ that the interpreter was not giving petitioner accurate translations of the dates contained in the attorney's questions, the IJ admonished the translator: "Please pay attention to the dates." Notwithstanding the uncertainty thereby created about the accuracy of petitioner's responses in which he agreed when asked whether something occurred on a particular date, the IJ and BIA subsequently attached a high degree of significance to inconsistencies in dates suggested by petitioner's responses to such questions.

In an oral decision issued at the end of the hearing, the IJ made an "adverse credibility" finding with respect to petitioner's testimony based on "inconsistencies between the respondent's [original unamended] application for political asylum and his testimony" and the fact that petitioner "could not remember what had happened to him on certain dates that he had referred to in his affidavit." The IJ thus concluded that petitioner had "failed to produce credible, consistent and sufficient evidence to establish that he has suffered past persecution in his country of nationality or that he has a well-founded fear of persecution."

In a July 21, 1998 decision, the BIA explicitly rejected the grounds for the IJ's adverse credibility finding, noting that while the IJ had "found the respondent not to be credible based on discrepancies between the respondent's asylum application completed by his first attorney and his testimony at the asylum hearing," petitioner had "adequately addressed these discrepancies on appeal." Nevertheless, the BIA identified different defects in petitioner's testimony and evidence that the BIA believed demonstrated that petitioner had failed to meet his burden of "proving by sufficiently consistent, detailed, unembellished, and plausible testimony that he suffered past persecution or that he has a well-founded fear of persecution."

In overview, the BIA identified the following defects:

(1) a lack of plausibility that petitioner's "brief and minimal" union activity in 1984 would have resulted in his being persecuted into the 1990s;

(2) three discrepancies between petitioner's hearing testimony and the Affidavit (two involving dates of events and one concerning the number of times he was summoned to the Presidential Palace);

(3) "vague" testimony about...