Castro-O'Ryan v. U.S. Dept. of Immigration and Naturalization, CASTRO-O

Citation847 F.2d 1307
Decision Date26 May 1988
Docket NumberCASTRO-O,No. 86-7502,86-7502
PartiesHernan Patricio'RYAN, Petitioner, v. UNITED STATES DEPARTMENT OF IMMIGRATION AND NATURALIZATION, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

John J. Tally, San Francisco, Cal., for petitioner.

Joseph F. Ciolino and Marshall T. Golding, Washington, D.C., for respondent.

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

Before HUG, NELSON and NOONAN, Circuit Judges.

SECOND AMENDED OPINION

NOONAN, Circuit Judge:

Hernan Patricio Castro-O'Ryan (Castro) appeals a denial of his applications for withholding of deportation and grant of asylum, which were denied by the Board of Immigration Appeals (the Board) on July 2, 1986. We reverse the Board and remand for further consideration.

FACTS

Castro was born on April 10, 1955 in Vina Del Mar, Chile and is a citizen of Chile. He is married to Blanca Haydee de Maria Arce-Guevara, a Salvadoran woman admitted as a permanent lawful resident of the United States. She has two children by a previous marriage, and they have one child born in 1977 from this marriage.

Castro first arrived in the United States on a tourist visa on February 28, 1976. On his second entry, July 19, 1980, he was admitted as a permanent resident. On May 11, 1981 he was indicted by a federal grand jury for trafficking in cocaine in March and April of 1981, and was specifically charged with selling 1 ounce of cocaine for $1,950 and providing 1 gram of cocaine free to a special agent of the Drug Enforcement Administration. He was also charged with agreeing to sell 17.6 pounds of cocaine at a price of $500,000. On September 23, 1981 the district court found him guilty of conspiracy to distribute cocaine in violation of 21 U.S.C. Sec. 846. The count of which he was found guilty included the specifications of sale, gift and agreement to sell cocaine set out above. He was sentenced to 5 years in prison.

Castro served 3 years in a federal prison camp at Florence, Arizona. He was assigned to a carpenter shop and within a year became lead carpenter. His work record was excellent and the prison authorities found him to be "a model prisoner." He was regarded as "a friendly, congenial and helpful person," and "a stabilizing influence among his fellow inmates."

Proceedings. At the beginning of 1985 a deportation hearing was held at the prison facility in Florence before William Nail, Immigration Judge. Judge Nail informed Castro he had a right to be represented by counsel of his choice and arranged that he be furnished a list of organizations which might be able to provide him a lawyer willing to represent him without charge. The judge asked if he wanted to seek legal representation and he replied affirmatively. The deportation hearing was continued to give him an opportunity to obtain counsel.

The hearing resumed on February 1, 1985. Castro was now represented by Daniel Carrasco, who admitted the allegations in the order to show cause why Castro should not be deported. Judge Nail designated Chile as the country of deportation. Castro stated that he wished to apply for withholding of deportation and asylum.

The hearing was continued to give him an opportunity to file these applications. He then applied for withholding of deportation and asylum.

In support of his request for asylum Castro prepared an affidavit in February 1985 which, written in his own hand, was filed with the Immigration Judge. It, in relevant part, reads:

Since I was in High School, I had been a sympatizer of the Christian Democratic Party. During my first year of college (1973) I participated actively in the Party, at University Level.

After the coup of 1973, all political parties were declared in recess, and the left wing parties were disolved.

In the University, the followers of the Christian Democratic Party started a movement to pressure the government, by peaceful means, to re-state the democracy in the country.

I became a member of the movement, early in 1974. Soon after I became the Secretary of the movement.

We organized clandestine meetings (public and private meetings were illegal, as they are now).

During 1974 and the first half of 1975 the movement gained force and followers within the student body.

In August, 1975, rumors started with regard to the existance of Army Inteligence Officers, possing as students in the University.

About the same period of time, the movement was planing to get the University into a strike, and through it, pressure the government to make consetions to the dissolved political parties, and at the same time create public unrest that would further pressure the government into making consetions.

Strikes were declared illegal in 1973. On the night of October 21st, 1975 (about 8:00 P.M.), as I left the student's residence, where I lived, in Santiago, during the school season, I was detained and escorted to a waiting Army truck, by two soldiers.

I was ordered to lay face down on the truck's bed and to pull my trousers down to my knees. There were other two civilian detainees with me, in the same position. In the canvas' covered bed of the truck were about 10 soldiers. The ones closer to the tail, closed the tail gate and pulled down the tail canvas.

The Army truck rode for about one hour before coming to a final stop.

We (all three detainees) were order out, to what seemed to be an isolated country estate.

I never saw again the other two detainees.

I was order to remove all my cloth, and locked in a cell, without light, in the basement of the building.

After about two hours, two civilians came for me. I was taken nude to another room on the floor above. It was a walk in freezer, illuminated by very deem lighting. I was order to sat down on a metal chair. I was hand and leg strapped into the metal chair. The two civilians left.

About an hour later the two civilians came back. By this time I was getting close to be frozen in the freezer.

One of the civilians introduced himself as an Army Intelligence Officer.

He was the one that conducted the interrogation. I was asked about my participation in the movement, our plans, the names of other members of the movement. I denied any knoledge of the movement (if I had accepted any of their allegations, they would have had bases for my prosecution; if found guilty, I would have faced at least a long prison sentence, if not death). After about half an hour of interrogation, it became obvious to me that the Army Intelligence new more about the movement than I did myself. That only meant that they had infiltrated the movement.

After one hour of interrogation, the two civilians left. By this time I was in pain because of the cold, inside the freezer.

Half an hour later, my interrogator, with two soldiers came back. They hose me with high preasure water; unstrapped me, and took me out of the I was given back my cloth and put back on the same cell. After about 4 to 5 hours, two soldiers come for me. I was brought back to the Army truck. Order to lay face down on the floor of the bed of the truck and to pull my trousers down to my knees. This time only two soldiers were on the back of the truck. I was the only civilian.

freezer. On my way back to the basement cell, the officer in civil cloth told me to leave the country.

After half an hour of ride, the truck stopped and I was order out of it. I was left in the southwest suburbs of Santiago. It was 6:30 A.M., October 22nd, 1975. It had been over 10 hours since I was taken into custody.

The same morning I left Santiago, and went to my hometown, Vina Del Mar. I told my family about what happened.

As a consequence of the long exposure to the cold in the freezer I developed pneumonia.

Two weeks after, I returned to the University, to start final examinations; I did not go back to the dormitory other than to remove my properties. I got in touch with the President of the movement, but I avoided contact with everybody else connected to it. I told the President of the movement what had happened to me, and that I was dropping out of the movement. He advised me to leave the country.

For the rest of the school year, final exams, I commuted between my home town and Santiago, staying in Santiago only for the tests.

It wasn't until December, 1975, that, with the development of family events, I, and my family, decided to follow the order from the Army Intelligence Officer. To leave the country.

My uncle, Daniel Castro Lopez (for information see Anmisty International's Records) had been arrested twice in 1973 after his second arrest, he had not been seen again. It was leaked by an Army officer, to a member of my family, who was trying to find out my uncle's whereabouts, that my uncle had been shot and killed by the Army, in one of their concentration camps.

It had only been his second arrest. He was also a member of an outlawed movement.

After obtaining all the necessary travel documents, which I had no problems to obtained, I left Chile the 28th of February, 1976.

My family had decided that the U.S.A. was the closest safe country for me.

On April 30, 1985, Daniel Carrasco withdrew as Castro's counsel. The deportation hearing resumed on June 20, 1985 before Judge Nail at Florence, Arizona. The following colloquy ensued with Judge Nail:

Q. You are here today by yourself, that is you don't have an attorney with you. Does that mean that you intend to speak for yourself today?

A. Yes, I do.

Q. All right.

Judge Nail then questioned Castro, and counsel for the Immigration and Naturalization Service questioned him. Castro told Judge Nail that he had sent him a telegram on June 4, 1985 requesting a change of venue to San Francisco because he had two material witnesses in the San Francisco area and the attorney of his choice was in San Francisco and he could not afford to bring him to Arizona. Judge ...

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