Chavarria v. U.S. Dept. of Justice, 82-6164

• Decision Date: 03 January 1984
• Docket Number: No. 82-6164,82-6164
• Citation: 722 F.2d 666
• Parties: Eliseo Jacinto CHAVARRIA, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE, Board of Immigration Appeals, Respondent.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 666

722 F.2d 666

Eliseo Jacinto CHAVARRIA, Petitioner, v. UNITED STATES DEPARTMENT OF JUSTICE, Board of Immigration Appeals, Respondent.

No. 82-6164.

United States Court of Appeals Eleventh Circuit.

Jan. 3, 1984.

Robert L. Boyer, Miami, Fla., for petitioner.

James A. Hunolt, Francesco Isgro, Lauri Steven Filipu, Beneva Weintraub, U.S. Dept. of Justice, Washington, D.C., for respondent.

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

Before RONEY, HATCHETT and ANDERSON, Circuit Judges.

HATCHETT, Circuit Judge:

Petitioner, Elisio Jacinto Chavarria, seeks review of his final order of deportation. We affirm the Board of Immigration Appeals's dismissal of Chavarria's appeal from a denial of his application for asylum under Section 208 of the Immigration and Nationality Act of 1952, 8 U.S.C.A. Sec. 1158.

Chavarria is a native and citizen of Nicaragua. He arrived in the United States on or about May 2, 1980, as a non-immigrant visitor for pleasure. He was authorized to stay until May 10, 1980, but remained beyond that time without authorization. At the deportation hearing, Chavarria admitted the allegations contained in the Order to Show Cause, and was thus deportable under Section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C.A. Sec. 1251(a)(2). ¹ Chavarria filed an application with the immigration judge for asylum under Section 208 of the Act, 8 U.S.C.A. Sec. 1158. The application was referred to the Department of State as required by 8 C.F.R. Sec. 208.10(b). ²

Pursuant to 8 C.F.R. Sec. 208.3(b), the immigration judge also considered the asylum request as a request for withholding deportation under Section 243(h) of the Act, 8 U.S.C.A. Sec. 1253(h). ³ Chavarria's application and the letter from the Department of State were admitted into evidence at the deportation hearing without objection.

Evidence at the hearing established that Chavarria had worked as an accountant for Plasma Pheresis, a private firm in Nicaragua which dealt with blood plasma, for about eighteen months from 1976 to 1978. During the period of Chavarria's employment, the editor of a Nicaraguan newspaper engaged in a "political campaign" against Plasma Pheresis. In response, the company filed a libel suit against the newspaper and its editor, Chamaro. Chamaro was assassinated on January 10, 1978, while the suit was pending. The following day, a mob burned down the office of Plasma Pheresis.

Chavarria remained in Nicaragua for two years following this incident, during which time he lived with his family and studied accounting. According to Chavarria, Sandinistas came to his house to interrogate him because he had worked for Plasma Pheresis and was anti-Communist. Chavarria testified that he was threatened because of his former employment and would be sentenced to thirty years' imprisonment if returned to Nicaragua. Chavarria's parents, brothers, and sisters remain and work in Nicaragua. He did not know of any harm to his relatives.

Fausto Alvarez, the former comptroller of Plasma Pheresis, testified that there was a violent reaction against employees of the company after the assassination of the newspaper editor. According to Alvarez, employees in management positions were harassed by the Sandinistas; the company's public relations man was shot and killed, and other managers were shot or arrested. Alvarez testified that Chavarria had held a management position with Plasma Pheresis and would be harassed or imprisoned if he returned to Nicaragua.

Another witness, the Director for the Center of Nicaraguan Refugees, testified that an official of the Nicaraguan government once stated that Nicaraguans applying for asylum in the United States would be imprisoned. He stated that his organization had processed approximately 4,500 applicants for asylum. He was aware that Nicaraguans have returned to that country, but did not know what happened to those Nicaraguans who returned after the civil war.

The immigration judge concluded that, although Chavarria justifiably felt apprehensive about returning to Nicaragua, he had failed to establish a reasonable fear of persecution if returned to Nicaragua. Consequently, Chavarria's application was denied. The judge, however, did grant Chavarria the privilege of voluntary departure. The Board of Immigration Appeals affirmed the decision of the immigration judge and dismissed the appeal.

We must decide whether the Board of Immigration Appeals properly dismissed Chavarria's appeal. Chavarria argues that the immigration judge improperly placed heavy reliance upon an outdated, boilerplate State Department advisory opinion. Further, he argues that the Board of Immigration Appeals abused its discretion by not addressing his contention, raised in his Notice of Appeal, that the State Department's opinion was faulty. In response, the Immigration and Naturalization Service (INS) asserts that the advisory opinion was admitted at the immigration hearing without objection pursuant to 8 C.F.R. Sec. 208.10. Chavarria has produced no evidence of a change in the foreign policy views of the State Department toward Nicaragua. Moreover, the decisions of the immigration judge and the Board of Immigration Appeals were based primarily on a finding that Chavarria's evidence was insufficient to establish a reasonable fear of persecution, rather than upon the advisory opinion of the State Department.

In pertinent part, 8 C.F.R. Sec. 208.10(b) provides:

When the asylum request is filed, the hearing shall be adjourned for the purpose of requesting an advisory opinion from BHRHA [the Bureau of Human Rights and Humanitarian Affairs of the Department of State].... The BHRHA opinion, unless classified under Executive Order No. 12065, shall be made part of the record, and the applicant given an opportunity to inspect, explain, and rebut it.

Thus, unless classified under an executive order, section 208.10(b) requires that an advisory opinion be made part of the record. In this case, Chavarria's counsel was furnished a copy of the opinion and stated that he had no objection to its admission into the record. On appeal to the Board of Immigration Appeals and in the present petition before this court, Chavarria asserts that the advisory opinion was outdated concerning the Reagan administration's views on Nicaragua at the time it was issued.

Pursuant to 8 C.F.R. Secs. 3.2 ⁴ and 3.8, Chavarria may file a motion to reopen before the Board in order to present new evidence, along with an explanation regarding why the new evidence could not have been presented earlier. It is well established that the regulations place the burden of proof upon the asylum applicant. 8 C.F.R. Sec. 242.17(c); Haitian Refugee Center v. Smith, 676 F.2d 1023, 1042 (5th Cir. Unit B, 1982). Consequently, Chavarria's bald assertions that conditions have changed in Nicaragua provide no basis for relief.

Second, Chavarria argues that he established a well-founded fear of persecution by a preponderance of the evidence. Therefore, the decision of the immigration judge denying his application for asylum was an unlawful abuse of administrative discretion. In response, the INS asserts that Chavarria failed to establish that he would likely be singled out for persecution.

At the deportation hearing, Chavarria admitted the allegations contained in the Order to Show Cause, and therefore, conceded deportability. Thus, the only question addressed was whether Chavarria was entitled to asylum or withholding of deportation pursuant to 8 U.S.C.A. Sec. 1158 or Sec. 1253(h)(1).

The statute was significantly amended in 1980. We must therefore determine what the appropriate standard of review is. Prior to the 1980 amendment, withholding of deportation was at the discretion of the Attorney General. ⁵ McMullen v. Immigration and Naturalization Service, 658 F.2d 1312, 1316 (9th Cir.1981). We adopt the Ninth Circuit's position that "the new, mandatory language of section 243(h) justifies replacing the abuse-of-discretion standard with the substantial-evidence standard. ⁶ McMullen at 1316. Under the 1980 amendment, the absolute discretion formerly vested with the Board has been removed. In order to give the 1980 amendment its full effect, the Board's factual findings should be subject to review. We adopt the Ninth Circuit's conclusion that, because "agency findings arising from public, record-producing proceedings are normally subject to the substantial-evidence standard of review," we shall review the Board's factual findings under the substantial-evidence test.

Having adopted the "substantial evidence" standard of review, we must now determine whether the Board of Immigration Appeals properly dismissed Chavarria's appeal. Review of the record indicates that the dismissal was proper.

Under the regulation applicable to temporary withholdings of deportation, it is clear that Chavarria had the burden of establishing that he would be subject to persecution on account of race, religion, or political opinion as claimed. 8 C.F.R. Sec. 242.17(c); Haitian Refugee Center v. Smith, 676 F.2d 1023, 1042 (5th Cir. Unit B, 1982). It is generally established that an applicant for withholding of deportation must establish that he specifically will be subject to persecution in the event of deportation. Fleurinor v. INS, ...