Bolanos-Hernandez v Immigration and Naturalization Service

• Date: 14 June 1985
• Court: U.S. Court of Appeals — Fifth Circuit

United States Court of Appeals, Ninth Circuit.

(Ely,1 Fletcher and Reinhardt, Circuit Judges)

Bolanos-Hernandez

and

Immigration and Naturalization Service

Aliens Refugees Refugee status Geneva Convention Relating to the Status of Refugees, 1951, and Protocol, 1967 Illegal immigrant Deportation proceedings Request for political asylum Whether specific reason to fear persecution Requirements of clear probability of persecution and well-founded fear of persecution Immigration and Nationality Act 1952 Refugee Act 1980 The law of the United States

Summary: The facts:The petitioner, who was a citizen of El Salvador, entered the United States without inspection by an immigration officer. In deportation proceedings he conceded that his illegal entry into the United States rendered him liable to deportation but applied for asylum on the ground that he would be subjected to political persecution in El Salvador. He contended that he had been a member of the Partido National de Reconciliation, a right wing party in El Salvador, and also a member of the Escolta Militia, a voluntary civilian police squad that guarded against guerrilla infiltration for the Government, and that when he had refused to join the guerrillas, they had threatened to kill him. It was then that he had left El Salvador.

The immigration judge and the Board of Immigration Appeals (the Board) determined that the applicant had failed to show that he had a specific reason to fear persecution that would distinguish him from other Salvadoreans. The petitioner appealed.

Held:The appeal was allowed; the petitioner was ordered not to be deported as he was eligible for asylum.

(1) When an alien who feared political persecution sought, on that ground, to block deportation proceedings, his requests had to be assessed under both the clear probability of persecution criteria for determining whether, under Section 243(h) of the Immigration and Nationality Act 1952, deportation was prohibited and the well-founded fear of persecution criteria for determining entitlement to asylum under Section 208(a) of the Refugee Act 1980. The relief under Section 243(h) of the Immigration and Nationality Act was mandatory, whereas the relief under Section 208(a) of the Refugee Act was discretionary and more liberal. Therefore, if the alien met the clear probability standard, then the well-founded fear standard would, a fortiori, also have been met (pp. 4813).

(2) The petitioner, whose life had been threatened by guerrillas, was entitled to the benefit of the Immigration and Nationality Act upon showing

a probability of political persecution. The seriousness of the threat to his life supported his contention that he would suffer political persecution if he were returned to El Salvador (pp. 4836)

(3) The Board had erred in concluding that threats against the petitioner's life merely reflected the general level of violence in El Salvador. Independent corroborative evidence of specific threats to an alien's life was not required under the statutory bar to deportation. There was uncontroverted evidence that the petitioner was likely to be persecuted by a politically motivated group that frequently engaged in terrorist tactics directed at those who refused to join its armed political struggle (pp. 4868).

(4) The petitioner had satisfied the clear probability criteria for the withholding of deportation and had therefore also demonstrated a well-founded fear of persecution for the grant of asylum under Section 208(a) of the Refugee Act. Since the Board had erroneously determined that the appellant was not eligible for asylum, the Attorney-General had not had the opportunity to exercise his discretion in determining to grant him relief. The action was remanded to enable the Attorney-General to exercise his discretion under Section 208(a) of the Refugee Act (p. 488).

The following is the text of the judgment of the Court of Appeals, delivered by Circuit Judge Reinhardt:

Espectacion Bolanos-Hernandez petitions for review of the Immigration and Naturalization Service's denial of his application for withholding of deportation and political asylum. We find that the decision of the Board of Immigration Appeals is not supported by substantial evidence. Bolanos meets both the clear probability and well-founded fear of persecution standards. He therefore may not be deported and is eligible for asylum.

I. BACKGROUND

Bolanos, a native and citizen of El Salvador, entered the United States in September 1982 without inspection by an immigration officer. During his deportation hearings, which commenced the following month, he conceded deportability on the basis of his illegal entry but filed an application for asylum and for a determination that he was not deportable because he would be subject to political persecution.

Bolanos testified that for two years he had been a member of the Partido National de Reconciliation, a right-wing party in El Salvador. He had also been in the army and had been a member of Escolta Militia, a voluntary civilian police squad that guards against guerrilla infiltration for the government. According to Bolanos, the guerrillas believe that, because of his membership in these groups, he would be particularly useful to them in their plans to infiltrate the government. When he refused to join the guerrillas, they threatened him, telling him they would kill him if he did not join their forces or, alternatively, leave the country. Bolanos took this threat seriously because the guerillas had killed five of his friends and had used similar tactics to recruit his brotherwhom he believes they may have subsequently killed.1 Bolanos left El Salvador eight days after the guerillas made their threat.

In addition to his own specific, individualized basis for fearing persecution, Bolanos testified about the great danger that male youths in general face in El Salvador. He also introduced newspaper articles attesting to the general conditions of violence, armed conflict, and guerrilla control in large portions of that country.

The government concedes that Bolanos has indicated his commitment not to be affiliated with either side in the political strugglehis desire to remain neutral and not be affiliated with any political group. The Immigration Judge, however, determined that Bolanos had not shown that any danger he might be subject to would be because of his political opinion, and both the Immigration Judge and the Board of Immigration Appeals determined that Bolanos failed to show that he had a specific reason to fear persecution that distinguished his situation from that of other Salvadorans. We disagree.

II. STATUTORY FRAMEWORK

The Refugee Act of 1980, Pub.L. No. 96212, 94 Stat. 102 (codified in scattered sections of 8 U.S.C. (1982)), amended the Immigration and Nationality Act so as to bring United States statutory provisions into conformity with the analogous provisions of the United Nations Convention Relating to the Status of Refugees.2 In passing the Refugee Act, Congress was motivated by the enduring historic policy of the United States to respond to the urgent needs of persons subject to persecution in their homelands, and sought to provide statutory meaning to our national commitment to human rights and humanitarian concerns.3

There are two code sections that come into play when an alien petitions for relief from deportation because of a threat of political persecution. Section 208(a) of the Refugee Act of 1980, 8 U.S.C. 1158(a) (1982), provides for asylum for political refugees, while section 243(h) of the Immigration and Nationality Act, as amended by section 203(e) of the Refugee Act, 8 U.S.C. 1253(h), prohibits the Attorney General from deporting an alien whose life or freedom would be threatened. When an alien fears political persecution and seeks, on that ground, to block deportation proceedings, the INS provides him with a form entitled Request for Asylum in the United States. Requests for asylum under section 208(a), when made after the initiation of deportation proceedings, are also considered as requests [under] section 243(h). 8 C.F.R. 208.3(b) (1983).4 The Immigration Judge and the Board of Immigration Appeals are required to evaluate such requests under both (i) the criteria for determining whether, under section 243(h), the Attorney General is prohibited from deporting the alien, and (ii) the criteria for determining whether the alien meets the eligibility requirements for asylum under section 208(a). SeeINS v. Stevic,U.S., 104 S.Ct. 2489, 2497 & n. 18, 81 L.Ed.2d 321 (1984).[2]

The amended version of section 243(h) provides in relevant part:

(h)(1) The Attorney General shall not deport or return any alien to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion.

The Supreme Court has recently held that, although the Refugee Act amended the language of section 243(h) of the Immigration and Nationality Act, the change in language did not liberalize the standard of proof an applicant must satisfy. INS v. Stevic,[3]U.S., 104 S.Ct. 2489, 2496, 81 L.Ed.2d 321 (1984). The alien still must show a clear probability of persecution; otherwise he cannot invoke the section 243(h) bar to deportation. The term a clear probability means a likelihood: The question under [the section 243(h)] standard is whether it is more likely than not that the alien would be subject to persecution.Id. 104 S.Ct. at 2498 (footnote omitted).5[4]

Although the standard of proof under section 243(h) remained unchanged, Congress did significantly curtail the Attorney General's discretionary authority over deportations when it passed the Refugee Act. Previously, even when an alien showed a clear probability of persecution, the Attorney General had the discretion to order or withhold deportation.6 Now, the amended section prohibits the Attorney...