Alvarez-Flores v. I.N.S.

• Decision Date: 05 March 1990
• Docket Number: ALVAREZ-FLORE,P,No. 89-1788,89-1788
• Citation: 909 F.2d 1
• Parties: William Alexanderetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

909 F.2d 1

William Alexander ALVAREZ-FLORES, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 89-1788.

United States Court of Appeals First Circuit.

Heard March 5, 1990.

Decided July 18, 1990.

Daniel Kanstroom, Cambridge, Mass., with whom Christina DeConcini, Somerville, Mass., was on brief, for petitioner.

Linda S. Wendtland, Office of Immigration Litigation, Civil Div., Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., and Robert Kendall, Jr., Asst. Director, were on brief, for respondent.

Before CAMPBELL, Chief Judge, and BOWNES and CYR, Circuit Judges.

CYR, Circuit Judge.

Petitioner, William Alexander Alvarez-Flores, a native and citizen of El Salvador, petitions for review of the decision of the Board of Immigration Appeals (BIA) denying his request for asylum and for withholding of deportation. We have jurisdiction pursuant to 8 U.S.C. Sec. 1105a(a) which provides the "sole and exclusive procedure" for the review of final orders of deportation. See Ipina v. INS, 868 F.2d 511, 513 n. 5 (1st Cir.1989). We deny the petition.

I

Petitioner Alvarez entered the United States on or about April 5, 1984, and was apprehended immediately by the Immigration and Naturalization Service (INS), which promptly instituted deportation proceedings. At the deportation hearings conducted in Boston in 1985, petitioner conceded deportability under 8 U.S.C. Sec. 1251(a)(2) but petitioned for political asylum and withholding of deportation.

The petition was predicated on an alleged fear that, as a young male opposed to participating on either side of the civil war, petitioner would be recruited forcibly, and possibly killed, by either the government or the guerrillas if he were to be returned to El Salvador. On two occasions petitioner was detained for possible recruitment, once by the army and once by the guerrillas. Although released unharmed on each occasion, Alvarez expresses fear lest in the future he be forced to join one side or the other, or suffer for his refusal. Alvarez further alleges that, as campesino cheesemakers, he and his family were particularly vulnerable to guerrilla demands for food. Since refusal was dangerous, Alvarez on occasion provided the guerrillas with food. Petitioner asserts that he feared that the government would regard him as a guerrilla because he provided food. Finally, Alvarez asserts that during the one-year period before he fled to the United States he "practically never left the house."

The Immigration Judge denied petitioner's requests for asylum and deportation but allowed Alvarez thirty days for voluntary departure. Petitioner filed a timely appeal with the BIA. After briefing by the parties and a de novo review of the administrative record, the BIA affirmed the decision of the Immigration Judge and concluded that Alvarez had "failed to demonstrate that a reasonable person in his circumstances would fear persecution for one of the grounds specified in the Act."

II

The present appeal concerns claims under both the asylum and deportation provisions of the Immigration and Nationality Act (Act). Petitioner bears the burden of proving eligibility for asylum and for withholding of deportation. 8 C.F.R. Secs. 208.5, 242.17(c); Youssefinia v. INS, 784 F.2d 1254, 1260 (5th Cir.1986); Diaz-Escobar v. INS, 782 F.2d 1488, 1492 (9th Cir.1986).

Withholding of deportation is governed by section 243(h) of the Act, 8 U.S.C. Sec. 1253(h), and must be granted if an "alien's life or freedom would be threatened [in the country of deportation] on account of race, religion, nationality, membership in a particular social group, or political opinion." Id. While withholding of deportation is mandatory for anyone able to meet the statutory requirements, the applicant must show a clear probability of persecution. INS v. Stevic, 467 U.S. 407, 429-30, 104 S.Ct. 2489, 2501, 81 L.Ed.2d 321 (1984) ("clear probability" standard requires showing that it is "more likely than not" that applicant would suffer persecution).

Section 208(a) of the Act, 8 U.S.C. Sec. 1158(a), gives the Attorney General discretion to grant asylum to an otherwise deportable alien who qualifies as a "refugee" within the meaning of section 101(a)(42)(A) of the Act, 8 U.S.C. Sec. 1101(a)(42)(A). Section 101(a)(42)(A) defines "refugee" as anyone unable to return to the country of deportation "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." Id.

Thus, asylum involves a two-step process: the determination of statutory eligibility; and, the discretionary determination whether to grant asylum.

Asylum requires a showing that the applicant has a "well-founded fear of persecution." Although we have yet to define the "final contours" of the "well-founded fear" standard, see Ipina, 868 F.2d at 514 n. 6 (canvassing different formulations of "well-founded fear" standard without deciding "final contours"), the BIA requires that an applicant show that a "reasonable person in his circumstances would fear persecution," Matter of Mogharrabi, Interim Decision 3028 (BIA 1987).

We review findings of fact by the BIA under a deferential "substantial evidence" standard. See Novoa Umania v. INS, 896 F.2d 1, 2 (1st Cir.1990) (citing Diaz-Escobar v. INS, 782 F.2d at 1492-93). Moreover, given the BIA's "Congressional mandate and the legal requirement that we show its decisions of this sort considerable respect," we will not reverse simply because we disagree with the BIA's evaluation of the facts. Id. at 4; Ipina, 868 F.2d at 514.

Petitioner argues that the BIA has misstated and misapplied the law. Yet, even accepting petitioner's suggestion that "questions of law, such as whether the BIA applied the appropriate legal standard, [are reviewed] de novo," Rodriguez-Rivera v. INS, 848 F.2d 998, 1001 (9th Cir.1988) (citing Arteaga v. INS, 836 F.2d 1227, 1228 (9th Cir.1988)), we are cautioned that when Congress, implicitly or explicitly, leaves gaps in a statutory program, "the courts must respect the interpretation of the agency to which Congress has delegated the responsibility for administering the ... program." INS v. Cardoza-Fonseca, 480 U.S. 421, 448, 107 S.Ct. 1207, 1222, 94 L.Ed.2d 434 (1987). See Perlera-Escobar, 894 F.2d 1292, 1296 (11th Cir.1990) (although "questions of statutory interpretation [are reviewed] de novo," the court is "obliged ... to defer to the BIA's interpretation of the applicable statute if that interpretation is reasonable") (citation omitted). Deference to the agency's interpretation is called for particularly when Congress incorporates into the statute terms of "some ambiguity ... like 'well-founded fear' which can only be given concrete meaning through a process of case-by-case adjudication." Cardoza-Fonseca, 480 U.S. at 448, 107 S.Ct. at 2.

Thus, whether or not review is termed de novo, we are required to "respect the Board's legal decision" as to whether the facts, as found, fall within the scope of the relevant statutory authority. ¹ Novoa-Umania at 2 (emphasis added). Cf. Cardoza-Fonseca, 480 U.S. at 448, 107 S.Ct. at 1221 ("narrow legal question[s]," proper for the court to decide, are "quite different from the question of interpretation that arises in each case in which the agency is required to apply ... standards to a particular set of facts").

III

Petitioner asserts three grounds entitling him to a withholding of deportation and to asylum. ² We review only the denial of the asylum claim. Since the standard for withholding deportation is more stringent, a petitioner unable to satisfy the asylum standard fails, a fortiori, to satisfy the former. See Ipina, 868 F.2d at 515; Diaz Escobar, 782 F.2d at 1492.

A

Petitioner first claims to deserve asylum because the government of El Salvador would attribute to him the political opinion that he supports the guerrillas since he has provided food in response to their demands. Although the petitioner asserts that he is in fact a neutral in the civil war, case law supports his contention that an imputed political opinion, whether correctly or incorrectly attributed, can constitute a ground of political persecution within the meaning of the Act. See, e.g., Hernandez-Ortiz v. INS, 777 F.2d 509, 516-17 (9th Cir.1985); Ramirez Rivas v. INS, 899 F.2d 864, 867 (9th Cir.1990).

Petitioner asserts that the BIA applied an incorrect legal standard in rejecting his claim to asylum on the basis of an imputed political opinion. Petitioner's argument is premised on a single statement by the BIA that the record "does not suggest that the authorities were even aware of the respondent's actions...." As petitioner correctly notes, an applicant need only prove that "the persecutor could become aware that the applicant possessed the belief or characteristic in question." Matter of Mogharrabi at 9 (emphasis added). Considered in its context, however, the quoted statement appears to represent not so much a legal standard which petitioner was required to meet, as a determination by the BIA that the record in this case did not contain certain clearly relevant evidence which would have provided support (though not indispensable support) for applicant's asserted fear of persecution. As such, the quoted statement constituted an accurate representation on a matter plainly appropriate for BIA consideration.

We now consider whether there was substantial support for finding that petitioner failed to demonstrate a well-founded fear of persecution on account of an imputed political opinion. We reiterate at the outset that the petitioner "bears a difficult burden on this issue, because '[a]ll the substantial evidence standard requires is that the BIA's conclusion, based on the evidence presented, be substantially reasonable.' " Ipina, 868 F.2d at 514 (quoting Diaz-Escobar, 782 F.2d at 1493). The BIA rejected the claim for two reasons: first, petiti...