Campos-Guardado v. I.N.S.

• Decision Date: 10 February 1987
• Docket Number: No. 86-4087,P,CAMPOS-GUARDAD,86-4087
• Citation: 809 F.2d 285
• Parties: Sofiaetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 285

809 F.2d 285

Sofia CAMPOS-GUARDADO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 86-4087.

United States Court of Appeals, Fifth Circuit.

Feb. 10, 1987.

Rehearing and Rehearing En Banc Denied March 9, 1987.

Carol L. Wolchok, Political Asylum Project of the ACLU of the Nat. Capital Area, Washington, D.C., for petitioner.

Eloise Rosas, Robert L. Bombough, Dir., Office of Immigration Litigation, Madelyn E. Johnson, Civil Div., Allen W. Hausman, Asst. Director, Richard M. Evans, Washington, D.C., for respondent.

Paul B. O'Neill, Dist. Director, INS, Houston, Tex., David H. Lambert, Dist. Director, INS, New Orleans, La., for other interested parties.

Petition for Review of an Order of the Immigration and Naturalization Service.

Before GEE and HILL, Circuit Judges, and HUNTER, ^* District Judge.

GEE, Circuit Judge:

Sofia Campos-Guardado appeals the denial of her requests for withholding of deportation and asylum by the Board of Immigration Appeals. She also appeals the Board's grant of only twelve days in which to depart voluntarily. We conclude that the Board did not err in construing the terms of the pertinent statutory provisions and that the record reflects substantial evidence to support the Board's conclusions that Ms. Campos is not entitled to withholding of deportation and is not eligible for a discretionary grant of asylum. Because Ms. Campos did not exhaust her administrative remedies on the issue concerning the length of time for voluntary departure, we are without jurisdiction to review that claim.

Facts

Sofia Campos-Guardado, a native of El Salvador, illegally entered the United States in the fall of 1984. ¹ After conceding deportability, she applied for asylum and withholding of deportation. In support of her applications, Ms. Campos testified about incidents of violence in El Salvador, focusing on one particular episode. In early 1984, by her account, she took a two-hour bus trip to her uncle's home, to repay a debt owed by her father. Her uncle was the chairman of a local agricultural cooperative, one formed as a result of the controversial agrarian land reform movement instituted several years earlier. When she arrived, she found her uncle apprehensive; he explained that the day before two men had demanded money he held for the co-op and he had refused them. Although frightened, she remained to visit with her cousins. Later, an older woman and two young men with rifles arrived and knocked down the door. They dragged Ms. Campos, her uncle, a male cousin and three female cousins to the rim of the farm's waste pit. They tied all the victims' hands and feet and gagged the women. Forcing the women to watch, they hacked the flesh from the men's bodies with machetes, finally shooting them to death. The male attackers then raped the women, including Ms. Campos, while the woman who accompanied the attackers shouted political slogans. The assailants cut the victims loose, threatening to kill them unless they fled immediately. They ran and were taken to a hospital in San Salvador. Ms. Campos suffered a nervous breakdown and had to remain in the hospital 15 days.

Ms. Campos did not return to live with her parents, but remained to work in a factory in San Salvador. On her first visit home, two young men arrived at the door. Her mother introduced them as cousins who had recently fled from the guerillas and moved into the neighborhood. Ms. Campos immediately recognized one of them as one of her assailants. She testified that he later sought her out several times and threatened to kill her and her family if she revealed his identity. She did not disclose what she knew. After her workplace in San Salvador was burned down by guerillas, Ms. Campos did not want to return to live at her parents' home near her cousin-assailant. She came to this country.

Affirming the immigration judge's decision, the Board held that Ms. Campos failed to meet her burden of proof to establish entitlement to withholding of deportation and statutory eligibility for asylum.

The Law

An alien has two distinct statutory modes of avoiding deportation. The withholding of deportation remedy provides that the Attorney General "shall not deport or return" an alien if his life or freedom "would be threatened" in the country of deportation on account of any one, or a combination of, five enumerated grounds. These are race, religion, nationality, membership in a particular social group, and political opinion. Immigration and Nationality Act (INA) Sec. 243(h)(1); as amended at 8 U.S.C. Sec. 1253(h)(1). ² This remedy is mandatory if the alien successfully shows that his or her life or freedom would be threatened upon return to the country of deportation.

By contrast, the asylum remedy is discretionary; the Attorney General may grant asylum to aliens physically present in this country if they qualify as "refugees." 8 U.S.C. Sec. 1158(a). The statute defines a refugee as one who is unwilling or unable to return to his homeland "because of persecution or a well-founded fear of persecution" on account of the same five statutory grounds that form the basis for the withholding of deportation remedy. 8 U.S.C. Sec. 1101(a)(42)(A).

The Issue

Ms. Campos bases her claims on two grounds, "political opinion" and "membership in a particular social group." She asserts she was persecuted in El Salvador for political opinions attributed to her by her assailants, on account of her family membership, and because of the concommitant association of the family with the agrarian land reform movement; as an eyewitness to the political assassination of her uncle and cousin, she is subject to future persecution if deported to El Salvador.

Because Ms. Campos's claim of persecution on account of "group membership" relies upon the attackers' alleged attribution of political opinions to the family group, we focus on the scope of the statutory term "political opinion." Ms. Campos contends the Board too narrowly construes this term in determining entitlement to withholding of deportation and eligibility for a discretionary grant of asylum. She asserts the Act contemplates persecution on the basis of political opinion imputed to the victim, whether rightly or wrongly, by the persecutor; the Board, she contends, impermissibly imposes as a prerequisite that the alien personally hold the political opinion that gives rise to the persecution.

Ms. Campos directs us to certain language in the Board's decision stating that

a showing that a persecutor's conduct furthers his goal in a political controversy is insufficient to establish persecution on account of "political opinion" within the meaning of the Act. Instead, the alien must show that it is his own, individual political opinion that a persecutor seeks to overcome by infliction of harm or suffering.

Although the Board assumed the veracity of Ms. Campos's account of the events at her uncle's house, and that the attack resulted from her uncle's political views, it nevertheless concluded that Ms. Campos "had not shown that the attackers harmed her in order to overcome any of her own political opinions." ³

The Board further found it unlikely that the attackers had targeted Ms. Campos as a victim, because they could not have expected her to be present at her uncle's home that day. It concluded:

Thus, while the attackers may have been motivated by their own political goals such as, for example, the intimidation of other peasants involved in land reform, the record does not establish that [Ms. Campos] was persecuted on account of any political opinion she herself possessed or was believed by the attackers to possess.

Concerning Ms. Campos's fear of her assailant should she return to El Salvador, the Board concluded that these threats of reprisal were personally motivated--to prevent her from exposing his identity--and that there was "no indication he maintained an interest in her because of her political opinion or any other grounds specified in the Act."

Ms. Campos also contends this language indicates that the Board failed to consider all the relevant evidence. She argues the reasons motivating the persecutor are of greater importance than any opinion actually held by the victim. She asserts the record is replete with evidence that peasant leaders in the agrarian reform movement and their families are singled out for persecution; once she was in her uncle's home his political views were attributed to her. Therefore, she argues, it was unreasonable for the Board to assume that the persecutors' reasons for victimizing her were different from their political motivations behind the torture, execution and rape of her family members. Further, as an eyewitness to the political assassination of her relatives, she contends that she is now a permanent target for future persecution.

Standards of Review

A denial of the withholding remedy must be sustained if supported by substantial evidence. 8 U.S.C. Sec. 1105a(a)(4); Young v. U.S. Dept. of Justice, I.N.S., 759 F.2d 450, 455-56 n. 6 (5th Cir.), cert. denied, --- U.S. ----, 106 S.Ct. 412, 88 L.Ed.2d 362 (1985). Because the decision whether to grant asylum is expressly at the discretion of the Attorney General, we cannot disturb the ultimate denial of asylum "absent a showing that such action was arbitrary, capricious, or an abuse of discretion." Id.

The Board's denial of relief is subject to review for errors of law. Ka Fung Chan v. INS, 634 F.2d 248, 252 (5th Cir.1981); Coriolan v. INS, 559 F.2d 993, 999 (5th Cir.1977). Our review, however, is limited. The Supreme Court has noted that an administrator such as the Attorney General has considerable discretion in interpreting and implementing the statutory provisions of the Immigration and Naturalization Act. INS v. Stevic, 467 U.S. 407, 429 n. 22, 104 S.Ct. 2489, 2500 n. 22, 81 L.Ed.2d 321 (1984). We accord deference to the Board's interpretation of immigration statutes unless there are...