Arteaga v. I.N.S.

• Citation: 836 F.2d 1227
• Decision Date: 06 April 1988
• Docket Number: No. 86-7124,86-7124
• Parties: Manuel Diaz ARTEAGA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1227

836 F.2d 1227

Manuel Diaz ARTEAGA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 86-7124.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 9, 1987.

Decided Jan. 13, 1988.

As Amended April 6, 1988.

A. Araceli Ramirez, Pittsburg, Cal., for petitioner.

Eileen A. Carty, (INS), Washington, D.C., for respondent.

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

Before GOODWIN and FLETCHER, Circuit Judges, and KING, ^* Senior District Judge.

FLETCHER, Circuit Judge:

Petitioner Manuel Diaz Arteaga is a 24 year old native and citizen of El Salvador. At a deportation hearing in December 1984, Arteaga admitted that he had entered the United States without inspection in February 1984, in violation of 8 U.S.C. Sec. 1251(a)(2). He conceded deportability and applied for political asylum in the United States. ¹

At his deportation hearing, Arteaga testified about several different incidents. ² The focal point of Arteaga's claim of persecution is a visit a group of guerrillas paid to him at his house in August 1983. The guerrilla members, former friends of Arteaga, tried to get him to join them in the civil war against the government. When Arteaga refused, stating his intention to remain neutral, the guerrillas said to him: "Even if you don't come, we'll get you." Allegedly put in fear by this threat, Arteaga left his mother and nine sisters and came to the United States.

The immigration judge issued an oral decision denying withholding of deportation and asylum, and granted Arteaga thirty days in which to depart voluntarily. According to the immigration judge, the guerrillas "did not attempt to take him [into] custody or force him into the guerrilla movement," but instead "tried to persuade him to voluntarily join the guerrillas." The Board of Immigration Appeals (BIA, or Board) affirmed the decision of the immigration judge.

DISCUSSION

This court has jurisdiction to review the BIA's decision pursuant to Section 242(a) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1252(a). The factual findings underlying the BIA's decisions on granting or denying asylum and withholding of deportation are reviewed under the "substantial evidence" test. McMullen v. INS, 658 F.2d 1312 (9th Cir.1981). Questions of law, such as whether the BIA applied the appropriate legal standard, are reviewed de novo. Florez-De Solis v. INS, 796 F.2d 330, 333 (9th Cir.1986).

I. Asylum and Withholding Standards

Because Arteaga conceded deportability, the government's burden is satisfied, and Arteaga must show entitlement to relief from deportation. Estrada v. INS, 775 F.2d 1018, 1020 (9th Cir.1985). Arteaga contends that the BIA's decision failed to distinguish the legal standards for withholding of deportation under Sec. 243(h) and political asylum under Sec. 208(a). Arteaga is entitled to mandatory withholding of deportation if his "life or freedom would be threatened in [El Salvador] on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. Sec. 1253(h)(1). In INS v. Stevic, 467 U.S. 407, 430, 104 S.Ct. 2489, 2501, 81 L.Ed.2d 321 (1984), the Supreme Court held that "the 'clear probability of persecution' standard remains applicable to Sec. 243(h) withholding of deportation claims." The Court explained that under the clear probability standard "[t]he question ... is whether it is more likely than Arteaga qualifies for a discretionary grant of asylum if he shows a "well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion...." 8 U.S.C. Secs. 1101(a)(42), 1158(a). The well-founded fear standard "play[s] no part" in the decision whether to withhold deportation, INS v. Cardoza-Fonseca, --- U.S. ----, 107 S.Ct. 1207, 1212, 94 L.Ed.2d 434 (1987), and "is in fact 'more generous' than the clear-probability test." Bolanos-Hernandez v. INS, 767 F.2d 1277, 1282 (9th Cir.1984). See Hernandez-Ortiz v. INS, 777 F.2d 509, 514 (9th Cir.1985); Sarvia-Quintanilla v. INS, 767 F.2d 1387, 1393 (9th Cir.1985). In Cardoza-Fonseca, the Supreme Court concluded:

                not that the alien [will] be subject to persecution."    Id. at 424, 104 S.Ct. at 2498
                

Our analysis of the plain language of the Act, its symmetry with the United Nations Protocol, and its legislative history, lead inexorably to the conclusion that to show a "well-founded fear of persecution," an alien need not prove that it is more likely than not that he or she will be persecuted in his or her home country.

107 S.Ct. at 1222. The Court pointed out that "[o]ne can certainly have a well-founded fear of an event happening when there is less than a 50% chance of the occurrence taking place." Id. at 1213. The Court explained this by citing a hypothetical example in which a one-in-ten possibility of persecution would give rise to a "well-founded fear." Id.

This court has said that "our case law quite clearly establishes that the legal difference between 'clear probability' and 'well-founded fear' must be respected." Rebollo-Jovel v. INS, 794 F.2d 441, 444 (9th Cir.1986). Accordingly, the BIA decision should make it apparent that the Board "appreciated the necessity of applying separate and discrete standards." Vides-Vides v. INS, 783 F.2d 1463, 1468 (9th Cir.1986).

The BIA has frequently resorted to catchall statements in its asylum decisions that a given petitioner has failed to meet the asylum standard "regardless of whether [petitioner's] claim is assessed in terms of demonstrating a 'clear probability,' a 'realistic likelihood,' a 'reasonable possibility,' or a 'good' or 'valid reason to fear' persecution." Corado Rodriguez v. INS, No. 85-7417, slip op. at 3267 (9th Cir. Mar. 14, 1988); see Vides-Vides, 783 F.2d at 1468; Rebollo-Jovel, 794 F.2d at 446; Cardoza-Fonseca, 767 F.2d 1448, 1450 (9th Cir.1985). Such a catchall analysis may fail to make clear that the BIA properly applied the discrete standards to withholding and asylum relief, respectively, particularly where the BIA makes reference to its decision in Matter of Acosta, Interim Dec. No. 2986 (BIA 1985). In Acosta, the BIA declared:

It has been our position that as a practical matter the showing contemplated by the phrase "a well-founded fear" of persecution converges with the showing described by the phrase "a clear probability" of persecution.... Accordingly, we have not found a significant difference between the showings required for asylum and withholding of deportation.

Acosta, slip op. at 2 (citations omitted).

In Vides-Vides, supra, this court held that a BIA decision that "fails to state explicitly" that the asylum standard is "more generous" than the withholding standard is nevertheless sufficient if it, "read as a whole, reflects its recognition" of the distinctive standards. 783 F.2d at 1468. Significantly, Vides-Vides considered a BIA decision rendered prior to Acosta, and the court specifically left open the question of whether boiler-plate analysis was sufficient in post-Acosta cases: "In light of Acosta, it may be appropriate henceforth to require a more explicit statement from the BIA that, even were it to apply a more generous standard such as required in this circuit, it would still deny the asylum petition." 783 F.2d at 1468 n. 3.

This question was recently resolved in Corado Rodriguez v. INS, supra, which held that in post-Acosta cases the Board must be explicit that it is applying the more generous standard to the asylum claim. Slip op. at 3268-69. In Corado Rodriguez, the BIA had held that the petitioner's asylum Our analysis of this issue must also be guided by the decision in Sanchez-Trujillo v. INS, 801 F.2d 1571 (9th Cir.1986). There, the court held that a post-Acosta decision by the BIA had adequately applied the "well-founded fear" standard. The BIA had "inartfully" chosen to make occasional use of the words "would be" or "will be" in its evaluation of the asylum claim, arguably suggesting that it had applied the stricter standard. ³ However, the court found that the doubt raised by the "occasional use of the words 'would be' or 'will be' " was sufficiently clarified by the BIA's lengthy quotation from Cardoza-Fonseca, 767 F.2d 1448, together with an explicit statement that it was bound by Ninth Circuit precedent.

                claim failed "regardless of whether her claim is assessed in terms of demonstrating a 'clear probability,' a 'realistic likelihood,' a 'reasonable possibility,' or a 'good' or 'valid reason to fear' persecution."    Id.  The court held that this "catchall" language failed to show that the Board had properly applied the "well-founded fear" standard, particularly where the Board reiterated its Acosta position and analyzed "well-founded fear" using terms used by the Ninth Circuit to define the stricter "clear probability" test.  Id. at 3270
                

The BIA's decision in the instant case states that Ninth Circuit precedent controls, ⁴ quotes from Cardoza-Fonseca, and holds that the petitioner "has not shown a clear probability of persecution under section 243(h) or a well-founded fear of persecution under section 208(a), as that standard is described in Cardoza-Fonseca v. INS...." This aspect of the BIA opinion resembles Sanchez-Trujillo. However, in the instant case the BIA also states that "the Board's analysis of [the well-founded fear standard] is set forth in Matter of Acosta." See Corado Rodriguez, slip op. at 3269 (BIA reiterated its position advanced in Acosta ). By contrast, there is no indication in Sanchez-Trujillo that the Board there had cited Acosta as an authority.

Moreover, the BIA opinion scrutinized in Sanchez-Trujillo made it apparent that the "inartfully chosen" words, when read in context, "merely stat[ed] that an objective basis must be shown for a well-founded fear." 801 F.2d at 1579. If that is the case, the challenged language did not amount to a...