Castillo v. I.N.S., 90-70605

• Decision Date: 08 November 1991
• Docket Number: No. 90-70605,90-70605
• Citation: 951 F.2d 1117
• Parties: Edgar E. CASTILLO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1117

951 F.2d 1117

Edgar E. CASTILLO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 90-70605.

United States Court of Appeals Ninth Circuit.

Submitted Nov. 8, 1991. ^*

Decided Dec. 20, 1991.

William A. Gardner, San Francisco, Cal., for petitioner.

Ellen Sue Shapiro, Office of Immigration Litigation Civil Div., Washington, D.C., for respondent.

Petition to Review a Decision of the Immigration and Naturalization Service.

Before CHOY, NORRIS and KLEINFELD, Circuit Judges.

CHOY, Circuit Judge:

Edgar E. Castillo appeals from a final order of the Board of Immigration Appeals ("the Board" or "BIA") issued on October 15, 1990 denying his requests for asylum. Castillo contends that there is not substantial evidence to support the BIA's determination that he was not eligible for asylum. This court has jurisdiction to hear this matter under section 106 of the Immigration and Nationality Act ("the Act"), 8 U.S.C. § 1105a. Because the BIA set forth specific reasons, supported by substantial evidence, why Castillo did not demonstrate a well-founded fear of persecution, and because the Board made it clear this was an alternative basis for denial that was totally

independent of its taking administrative notice of the change of government in Nicaragua, we AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

Edgar E. Castillo is a thirty-five-year-old man who left Nicaragua on December 13, 1985 and traveled to the United States. He was apprehended and charged with entering the United States without inspection in violation of section 241(a)(2) of the Act, 8 U.S.C. § 1251(a)(2), by an order to show cause issued on December 20, 1985. During his deportation and asylum hearings Castillo was represented by counsel and the hearings all took place with a translator present.

At his asylum hearing Castillo testified that before 1979 he was a member of the Somoza party for fifteen years, that during the voting census and elections he was a poll taker, and at other times helped the party by distributing propaganda or providing assistance to participants at demonstrations, which took place approximately every three months. Castillo also stated, however, that he did not participate in any anti-Sandinista activities from 1981 to 1984.

Castillo testified that after the revolution in 1980 he was interrogated four times at work by the Sandinista state security police for one to two hours each time. Regarding these interrogations, Castillo stated that "They didn't prove anything against me" and that during the questioning he was not physically threatened. After these interrogations Castillo was not questioned again, even though he remained in Nicargua for another five years.

Castillo stated that he feared returning to Nicaragua because he did not have work. He stated that his profession in Nicaragua was banking and finance but that he was not employed in that profession when he left Nicaragua and never actually had worked in either of those fields. He testified that he was sure he could not work in his profession because he belonged to the Somoza party. Castillo graduated from school in December 1982 and thereafter worked first as a file clerk for one year and then in a position with the same company sending "work norms" until the time he fled to the United States.

Castillo also testified that he feared returning to Nicaragua because he does not want to serve in the military and that he left Nicaragua because he was registered for the military and the government told him he had to serve. According to Castillo, military service is "absurd, it's something absurd." He also stated that in Nicaragua everyone under forty years of age is required to serve in the military. Castillo testified that he is reluctant to serve in the Nicaraguan military because he was raised Baptist although he also stated that if he had to serve in the United States military he would do so.

The Immigration Judge (IJ) denied Castillo's application for asylum and withholding of deportation. The judge noted that shortly after the 1979 revolution Castillo was interrogated four times by the Sandinista state security police. He added that each time Castillo was questioned for one to two hours but that during the interrogations there were neither threats of physical harm nor was Castillo mistreated, detained, convicted of any crimes, or imprisoned.

With regard to Castillo's participation in political organizations, the IJ noted that from 1979 to the time he left Nicaragua in December 1985 Castillo was not a member of any political party. Moreover, he had not participated in any anti-Sandinista activity from 1981 to 1984. The IJ stated that Castillo never has served in the military although he is registered for the armed forces, fears he may be called to serve, and does not wish to serve.

Finally, the IJ noted that, although Castillo testified that he is an Evangelican associated with the Baptist Church, his asylum application indicates that he is Catholic. The judge also stated that Castillo testified that he never had been persecuted in Nicaragua based on his religion.

The IJ concluded that, even assuming Castillo's affiliation with the National Liberal Party of Somoza, there was no evidence that the Sandinistas persecuted him Castillo appealed the IJ's decision to the BIA. The BIA also concluded that Castillo had not established a reasonable possibility that he would be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion if he were returned to Nicaragua. In this regard, and key to our decision on appeal, the Board not only explicitly stated that this finding was based on "two distinct grounds, each of which is an independent basis for denial" but also cited specific reasons why Castillo had not established a well-founded fear of persecution.

                as a result of that affiliation or that a reasonable person in his circumstances would fear persecution in the future.   Moreover, the IJ found that Castillo left Nicaragua to avoid military service because he either does not agree with the Sandinista government or simply dislikes military service and that neither of these reasons establishes a well-founded fear of persecution
                

First, the BIA noted that Castillo had not proven a well-founded fear of persecution because, although he was interrogated four times in 1980 for one to two hours, after the questioning he remained in Nicaragua approximately five and one-half years before he voluntarily left for the United States. Moreover, the Board's opinion also noted that Castillo made no allegation that he was otherwise restricted, harmed, or even questioned by the Sandinistas. The second independent ground the BIA cited involved its taking administrative notice of the change in government in Nicaragua which prompted the Board to conclude that, since Sandinista party no longer governs Nicaragua, Castillo's claim of well-founded fear of persecution by that government is unsupported.

Finally, the Board added that, assuming Castillo had established past persecution, this was not a case where the BIA might grant asylum based solely on past persecution absent a showing of a reasonable likelihood of present persecution. In Matter of Chen, Interim Decision 3104 (BIA 1989), the BIA held that there may be selected cases where it should exercise its discretion to grant asylum for humanitarian reasons even if there is little likelihood of future persecution. In Castillo's case the BIA noted that such an instance may occur when past persecution had been so severe that return to the country of persecution would be inhumane. The BIA concluded, however, that the record of Castillo's case presented no humanitarian or compelling bases under this principle.

STANDARDS OF REVIEW

We review the factual findings underlying the BIA's denial of asylum under the substantial evidence test. Canas-Segovia v. INS, 902 F.2d 717, 721 (9th Cir.1990), petition for cert. filed, (U.S. Feb. 6, 1991) (No. 90-1246); Beltran-Zavala v. INS, 912 F.2d 1027, 1029 (9th Cir.1990). This standard requires us to uphold the BIA's decision if it was substantially reasonable based on all the evidence. Diaz-Escobar v. INS, 782 F.2d 1488, 1493 (9th Cir.1986). Moreover, the court may not reverse the BIA simply because it disagrees with its evaluation of the facts. Id. at 1493.

I. REVIEW OF THE BIA OPINION

This court's review is limited to the BIA's decision and thus we may not rely on the IJ's opinion in deciding the merits of Castillo's case. Elnager v. US INS, 930 F.2d 784, 787 (9th Cir.1991); Cardoza-Fonseca v. US INS, 767 F.2d 1448, 1455 (9th Cir.1985), aff'd, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). ¹ The BIA has the power to conduct a de novo review of the record, to make its own findings, and to determine independently the sufficiency of the evidence, Elnager, 930 F.2d at 787; Cardoza-Fonseca, 767 F.2d at 1455, and for us to review the IJ's decision under our deferential substantial evidence test essentially would deprive the petitioner of the BIA's de novo review of his case.

Furthermore, in order for this court to conduct a proper substantial evidence review of the BIA's decision, the Board's opinion must state with sufficient particularity and clarity the reasons for denial of asylum. See Contreras-Buenfil v. INS, 712 F.2d 401, 403 (9th Cir.1983); Mejia-Carrillo v. INS, 656 F.2d 520, 522 (9th Cir.1981). Boilerplate opinions, which set out general legal standards yet are devoid of statements that evidence an individualized review of the petitioner's contentions and circumstances, neither afford the petitioner the BIA review to which he or she is entitled, nor do they provide an adequate basis for this court to conduct its review. Those Board opinions that lack an adequate statement of the BIA's reasons for denying the petitioner relief must be remanded to the Board for clarification of the bases for its opinion. Cardoz...