Cordero-Trejo v. I.N.S.

• Decision Date: 08 September 1994
• Docket Number: P,CORDERO-TREJ,No. 94-1385,94-1385
• Citation: 40 F.3d 482
• Parties: Juan Franciscoetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. First Circuit. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 482

40 F.3d 482

Juan Francisco CORDERO-TREJO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 94-1385.

United States Court of Appeals,First Circuit.

Heard Sept. 8, 1994.

Decided Nov. 23, 1994.

Maureen O'Sullivan, with whom Harvey Kaplan, Jeremiah Friedman and Kaplan, O'Sullivan & Friedman, Boston, MA, were on brief for petitioner.

Iris Gomez, with whom Massachusetts Law Reform Institute, Boston, MA, was on brief for Guatemaltecos Unidos En Accion of Rhode Island and Massachusetts Immigrant and Refugee Advocacy Coalition, amici curiae.

Donald E. Keener, Office of Immigration Litigation, with whom Frank W. Hunger, Asst. Atty. Gen., and Philemina McNeill Jones, Office of Immigration Litigation, Washington, DC, were on brief for respondent.

Before BOUDIN, Circuit Judge, ALDRICH, Senior Circuit Judge, YOUNG, ^* District Judge.

BAILEY ALDRICH, Senior Circuit Judge.

Petitioner Juan Francisco Cordero Trejo claims the Board of Immigration Appeals ("Board") erred in dismissing his appeal from a denial of asylum and withholding of deportation by the immigration judge. Cordero's principal contention is that the Board, in summarily adopting the IJ's conclusions, ignored substantial portions of the evidence and accepted inappropriate assumptions about how Guatemalan society operates in concluding that his claim to have a well-founded fear of persecution if returned to Guatemala contains fatal "inconsistencies" and "implausibilities," and that he is statutorily ineligible for either asylum or withholding. See 8 U.S.C. Secs. 1158(a) and 1253(h) (1988 & Supp. IV 1992).

After full review, we hold that the findings underlying the Board's conclusion that Cordero is ineligible for asylum are not supported by substantial evidence. The Board's adoption of the IJ's findings and conclusions is unreasonable when evaluated in light of the record as a whole. Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). The Board's initial basis for denying Cordero's bid for asylum, i.e., the IJ's extensive negative credibility findings, are without foundation in the record. The Board's alternative holding that Cordero is statutorily ineligible for asylum based upon, inter alia, ¹ its conclusion that no one in Guatemala "is interested in him for any of the five statutory grounds for asylum," In re Cordero, No. A70438773, slip op. at 2 (BIA Mar. 22, 1994), can only be derived from reliance on those unreasoned findings to discredit a substantial portion of Cordero's evidence. Finally, the Board did not evaluate the record "in light of general conditions" in Guatemala and failed to consider evidence concerning the pattern and practice of persecution of similarly situated persons in Guatemala, as required by INS regulations. 8 C.F.R. Sec. 208.13(a) and (b)(2)(i). See Osorio v. INS, 18 F.3d 1017, 1031 (2nd Cir.1994). Accordingly, we vacate the Board's eligibility determination and remand for new proceedings in accordance with this opinion.

I. BACKGROUND ²

Cordero is a native and citizen of Guatemala. He was born in 1948, and completed high school and attended medical school there. He was a 42 year-old married father of four daughters, a small property owner, and owner and operator of a successful construction business that employed dozens of workers when he fled his country in November of 1990. He enjoyed a good standard of living, had savings, and sent his daughters to private school. His wife and daughters remain in Guatemala.

From 1976 to 1990 Cordero also worked as a volunteer with "Laicos Comprometidos" (the committed laymen), a religious organization dedicated to promoting the Catholic faith, to providing medical care, food and clothing to needy Guatemalans and to helping them "rise above their poverty." He travelled on these missions approximately three times a year to remote areas which had been hard hit by conflicts between guerrillas and the Guatemalan military. Cordero testified to having been stopped many times on these missions by armed groups who accused him and his fellow missionaries of inciting rebellion among the rural people.

In 1985 Cordero began to receive anonymous threatening phone calls warning him to stop his activities with Laicos. Then, in 1986, Cordero's younger brother was attacked by armed men who stabbed him multiple times, stating that this was a warning for Cordero. Several months later, Cordero's older brother was attacked by armed men who threw him off a cliff, stating that it was on account of his brother's (Cordero's) failure to heed their warnings. Both brothers survived, and remain in Guatemala. Cordero testified that both before and after these attacks he and members of his family were followed on the street and his house was being watched. He reported the threatening phone calls and surveillance, but was unable to obtain any assistance from the National Police.

In November of 1987 Cordero was stopped by the army ³ while on a mission in a region plagued by guerilla unrest. He was interrogated at length about his motives for coming to the region, and when he explained he was with "Laicos Comprometidos" he was accused of inciting rebellion among the people. Several priests with whom Cordero was intimate were killed in the course of their work in the countryside. In 1989 Cordero suspended the activities of a group of lay social workers that he and some friends had founded to help troubled teens because of a telephone threat they received. ⁴

In June of 1990, after twelve years of service, Cordero resigned from Laicos because he believed this might put a stop to the campaign against him and his activities that was terrorizing his family. However, in October of 1990 he was accosted on a city street by armed men who identified themselves as belonging to the "death squads." They warned him to abandon the country and that this would be his final warning. They robbed him, but did not harm him physically.

Cordero claims that his family was terrorized and that his own fears of persecution crystallized at this point. He believes that if he returns to Guatemala he will be killed by those who continuously threatened him. He was tempted to leave Guatemala that night, but decided instead to try to leave legally. He obtained a passport without difficulty, but was turned down by the United States Consulate for a visa. He then left Guatemala on November 21, 1990, travelling by bus and on foot through Mexico. He entered the United States near Brownsville, Texas on or about February 2, 1991 without inspection and was apprehended by the Immigration Service shortly thereafter.

In deportation hearings held in March and June of 1991 Cordero conceded deportability and applied for asylum and withholding of deportation, and in the alternative, voluntary departure. Immigration and Nationality Act, Secs. 208, 243(h) and 244(e), 8 U.S.C. Secs. 1158(a), 1253(h) and 1254(e) (1988 and Supp. IV 1992). The IJ denied Cordero's applications for asylum and withholding, but granted his request for voluntary departure. Cordero appealed to the Board. On March 22, 1994 the Board dismissed the appeal. The Board relied on adverse credibility findings by the IJ in reaching its decision that Cordero did not meet the statutory definition of a "refugee." INA Secs. 101 et seq., 101(a)(42)(A), 208(a), as amended, 8 U.S.C. Secs. 1101 et seq., 1101(a)(42)(A), 1158(a). The Board reasoned that "inconsistencies and implausibilities" in Cordero's application rendered him unworthy of credibility, and that even if credible, he had failed to establish statutory eligibility for asylum because he had not shown that he was ever harmed in Guatemala, or that his family remaining in Guatemala had been harmed, or that "anyone in Guatemala is interested in him for any of the five statutory grounds for asylum." In re Cordero, slip. op. at 2. The Board noted that suffering from civil disturbances and fleeing general conditions of violence do not qualify an applicant for asylum.

Cordero now appeals.

II. EXHAUSTION OF ADMINISTRATIVE REMEDIES

The INS charges that Cordero did not exhaust his administrative remedies because until now he has claimed only religious persecution, and failed to claim persecution on imputed political opinion and/or social group grounds, as he now seeks to do on appeal to this court. This contention is without merit. See generally the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1979), pp 66 and 67. Not only did Cordero check the social group box on his I-589 application for asylum, the immigration judge framed the discussion in his order and opinion principally in terms of the social group ground. Moreover, the language of the Board's decision reveals that it considered Cordero's application lacking with respect to "any one of the five statutory grounds." ⁵ In re Cordero, slip. op. at 2.

III. STANDARD OF REVIEW

We review findings of fact and credibility by the Board "under a deferential 'substantial' evidence standard." Alvarez-Flores v. INS, 909 F.2d 1, 3 (1st Cir.1990); Novoa-Umania v. INS, 896 F.2d 1, 2 (1st Cir.1990) ("we must uphold any finding of fact that is supported by 'substantial evidence' "). Board determinations of statutory eligibility for relief from deportation, whether via asylum or withholding, are conclusive if "supported by reasonable, substantial, and probative evidence on the record considered as a whole." 8 U.S.C. Sec. 1105a(a)(4) (1988). Gebremichael v. INS, 10 F.3d 28, 31 (1st Cir.1993).

Under normal principles of administrative law governing the role of courts of appeals when reviewing agency decisions for substantial evidence,

[t]he Board's findings must ... be set aside when the record before a Court of Appeals clearly precludes the Board's decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters...