Camposeco-Montejo v. Ashcroft, 02-74259.

• Decision Date: 17 September 2004
• Docket Number: No. 02-74259.,02-74259.
• Citation: 384 F.3d 814
• Parties: Agustin CAMPOSECO-MONTEJO, Petitioner, v. John ASHCROFT, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

384 F.3d 814

Agustin CAMPOSECO-MONTEJO, Petitioner, v. John ASHCROFT, Attorney General, Respondent.

No. 02-74259.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 14, 2004.

Filed September 17, 2004.

COPYRIGHT MATERIAL OMITTED

Sharon L O'Grady, Pillsbury Winthrop LLP, San Francisco, CA, for the petitioner.

Rena I. Curtis, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A77-541-085.

Before THOMPSON, TASHIMA, and RAWLINSON, Circuit Judges.

TASHIMA, Circuit Judge.

Agustin Camposeco-Montejo ("Camposeco"), a native and citizen of Guatemala, petitions for review of a decision of the Board of Immigration Appeals ("BIA" or "Board"), affirming without opinion the decision of the Immigration Judge ("IJ"). The IJ denied Camposeco's application for asylum, withholding of removal, and for relief under the Convention Against Torture,¹ but granted voluntary departure. The denial of asylum was based on the IJ's determination that Camposeco had firmly resettled in Mexico. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we grant the petition.

BACKGROUND

Camposeco is a Jacalteco Mayan Indian who had many family members brutally tortured and murdered by the Guatemalan army during the 1980's.² His father, Gaspar Camposeco ("Gaspar"), was accused by the army of being a guerrilla because he was a "catechist" in the Catholic church. The army threatened to kill Gaspar and often went to the family's house to look for him, destroying the family's possessions and killing their pets when they did not find him. On one occasion, the army tied up Camposeco's mother and threatened to take her away if she did not turn in Gaspar. Two of Gaspar's cousins were tortured by the army; only one survived. Gaspar's brother and Camposeco's mother's brother also were murdered by the army. Gaspar fled to Mexico in 1982, followed a few months later by his wife and children, including Camposeco, who was nine years old at the time.

Camposeco and his family initially were returned to Guatemala by the Mexican government, which was unprepared for the mass exodus of refugees.³ They, nonetheless, later returned to Mexico, after which Camposeco and his family lived in tents in a refugee camp near the Guatemalan border for one to two years, until they were able to build small houses in the camp, using tin roofing material donated by a church. Life was difficult in the camps, where there was no potable water, and the water they did use often was contaminated by bodies dumped into the river by the Guatemalan Army. The refugees were not allowed to attend Mexican schools, and there were no schools in the refugee camps for many years. Camposeco's family was forced to stop wearing their traditional clothes in the camps, in order to avoid discrimination.

Approximately a year after Camposeco's family arrived in Mexico, COMAR issued to adult refugees an immigration document called an FM8, which allowed the refugees to live and work in the municipalities in which their camps were located. The refugees were not permitted to leave the municipality in which they lived, however, under threat of repatriation to Guatemala. Minors did not receive the FM8, but were included in the card received by their parents. When Camposeco was a teenager, he attempted to travel to a neighboring municipality but was caught by Mexican immigration authorities, who locked him in a bathroom, demanded money from him, and threatened to deport him to Guatemala.

In 1994 or 1995, Camposeco entered into a common-law marriage with a woman who lived in a refugee camp in the same municipality as Camposeco's. His wife and daughter still live in the municipality of Trinitaria, in Mexico. In 1996, COMAR began to issue an FM3 immigrant card, which allowed the refugees to travel outside the municipality in which the refugee camp was located. Camposeco received his FM3 card in 1997.

After receiving his FM3 card, Camposeco left Chiapas to travel to the United States. When he arrived in Sonora, officials detained him and asked for his documents. He produced his FM3 card, but they asserted that it was not genuine and charged him 600 pesos before allowing him to go. Camposeco was left without enough money to continue his journey. He eventually entered the United States in 1998.

Camposeco did not know of the possibility of applying for asylum until he was detained by the Immigration and Naturalization Service⁴ ("INS") in the state of Washington in 1999. He applied for asylum in 2000, detailing on his application the many horrors suffered by his family in Guatemala.

At the hearing before the IJ, Camposeco, his brother, and his sister testified about their experiences in Guatemala and Mexico. Dr. Jeffrey Kaye, an expert in psychology, testified about the effects on Camposeco of the trauma he had suffered.

Camposeco also presented the testimony of Michael Smith, the coordinator of the Affirmative Asylum Program at the East Bay Sanctuary in Berkeley, California. Smith testified as an expert regarding the immigration documents given to the Guatemalan refugees by the Mexican government. Smith described Mexico's treatment of the Guatemalan refugees and the differing rights conferred by the three types of immigration documents they received — the FM8, FM2, and FM3 cards. After Mexico's initial hostile reaction toward the refugees, COMAR began to issue the FM8, which allowed the refugees to live and work in the municipalities in which the refugee camps were located. Nevertheless, "[s]ome officials didn't recognize those documents and turned people over to the Guatemalan authorities." In 1996, COMAR began to issue an FM2 to the refugees; however, the state of Chiapas, where Camposeco lived, issued an FM3 instead. Both cards needed to be renewed every year. The FM3 conferred several rights upon the refugees, the most important of those being the right to travel outside their municipalities and the right to work. The FM2 conferred the same rights as the FM3, with the significant distinction of also allowing the refugees to apply for permanent residency after five renewals.

The IJ denied Camposeco's application for asylum, withholding of removal, and for relief under the Convention Against Torture. The IJ briefly described some of the horrors of Camposeco's experience in Guatemala and noted Dr. Kaye's "vivid" testimony of Camposeco's "psychological trauma, which continues to manifest itself to this day," resulting from the "atrocities" Camposeco experienced. The IJ, however, concluded that Camposeco was firmly resettled in Mexico and accordingly denied his application for asylum, based on the "critical evidence" provided by Michael Smith. The IJ mistakenly believed that Smith had testified that FM3 holders were "allowed permanent residence." The IJ further reasoned that Camposeco had experienced "16 years of peaceful residence in Mexico," providing another basis for a finding of firm resettlement in Mexico.⁵ The IJ denied Camposeco's application for withholding of removal, reasoning that there was "no reason to believe that the government of Guatemala at this time would have any interest in a respondent who was approximately seven years of age when he left Guatemala in 1982." The IJ granted Camposeco voluntary departure. The BIA affirmed without opinion pursuant to 8 C.F.R. § 3.1(e)(4) (now found at 8 C.F.R. § 1003.1(e)(4)). Camposeco filed a timely petition for review.

STANDARD OF REVIEW

Where the BIA adopts the decision of the IJ as the final agency determination of the case, we review the decision of the IJ. Vukmirovic v. Ashcroft, 362 F.3d 1247, 1251(9th Cir.2004); see Falcon Carriche v. Ashcroft, 350 F.3d 845, 851 (9th Cir.2003). The denial of asylum is reviewed for substantial evidence. Kataria v. INS, 232 F.3d 1107, 1112(9th Cir.2000). The denial must be upheld unless the applicant can show that "the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution." INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).

DISCUSSION

Camposeco challenges the IJ's denial of his application for asylum. He applied for asylum pursuant to Immigration and Nationality Act ("INA") § 208(b)(1), 8 U.S.C. § 1158(b)(1), which gives the Attorney General discretion to grant asylum to an alien who is a refugee within the meaning of 8 U.S.C. § 1101(a)(42)(A). 8 U.S.C. § 1158(b)(1). A refugee includes a person who is unable or unwilling to return to his native country "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." 8 U.S.C. § 1101(a)(42)(A). Camposeco also challenges the denial of withholding of removal. Under INA § 241(b)(3), "the Attorney General may not remove an alien to a country if the Attorney General decides that the alien's life or freedom would be threatened in that country because of the alien's race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1231(b)(3). "Unlike asylum, withholding of removal is not discretionary." Al-Harbi v. INS, 242 F.3d 882, 888 (9th Cir.2001) (citation omitted).

I. Firm Resettlement

An application for asylum must be denied if the alien has firmly resettled in another country. 8 C.F.R. § 208.13(c)(2)(B). Subject to two exceptions, an alien has firmly resettled if, "prior to arrival in the United States, he or she entered another country with, or while in that country received, an offer of permanent resident status, citizenship, or some other type of permanent resettlement." 8 C.F.R. § 208.15.

Camposeco contends that the IJ's conclusion that he has firmly resettled in Mexico is not supported by substantial evidence. Camposeco argues first that the IJ...