Garrovillas v. I.N.S., s. 96-70473

• Decision Date: 07 October 1997
• Docket Number: Nos. 96-70473,s. 96-70473
• Citation: 156 F.3d 1010
• Parties: 98 Cal. Daily Op. Serv. 7462, 98 Daily Journal D.A.R. 10,369 Noemi GARROVILLAS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1010

156 F.3d 1010

98 Cal. Daily Op. Serv. 7462, 98 Daily Journal

D.A.R. 10,369

Noemi GARROVILLAS, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Nos. 96-70473.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 7, 1997. ^*

Decided Sept. 29, 1998.

Joseph Feldun, Steve J. Rodriguez and Kimberly R. Furman, Korenberg, Abramowitz & Feldun, Encino, CA, for petitioner.

Linda S. Wendtland and Gretchen M. Wolfinger, Office of Immigration Litigation, United States Department of Justice, Washington, DC, for respondent.

Petition for Review of an Order of the Board of Immigration Appeals. I.N.S. No. A29 217 107.

Before: REINHARDT and TASHIMA, Circuit Judges, and SHADUR, District Judge. ^**

REINHARDT, Circuit Judge:

Noemi Garrovillas petitions for review of the Board of Immigration Appeals' (BIA) denial of his application for political asylum, withholding of deportation, and voluntary departure. We grant the petition for review, vacate the BIA's decision, and remand for further proceedings.

BACKGROUND

Garrovillas, a forty-three year old married male and a native and citizen of the Philippines, entered the United States on or about March 17, 1990. Thereafter, he remained in the United States beyond his authorized period of stay. In an Order to Show Cause, dated March 1, 1994 and amended on January 23, 1995, the Immigration and Naturalization Service (INS) charged him as an overstay under § 241(a)(1)(B) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1251(a)(1)(B).

At the outset of his deportation hearing, which began on June 24, 1994, Garrovillas contested his deportability and filed an application for political asylum, withholding of deportation, and voluntary departure, under §§ 208(a), 243(h)(1), and 244(e)(1) of the INA, 8 U.S.C. §§ 1158(a), 1253(H), and 1254(e)(1). Subsequently, when the evidentiary part of the hearing took place, on July 6, 1995, Garrovillas admitted the factual allegations contained in the amended Order to Show Cause and conceded deportability as charged.

In support of his application for relief, he testified to the following facts. Prior to his arrival in the United States, Garrovillas lived in the Rizal province of the Philippines. Between 1985 and 1988, he was active in the Civilian Home Defense Force (CHDF), a para-military organization which acted in conjunction with the Military Intelligence Unit of the Armed Forces of the Philippines. During his service in the CHDF, Garrovillas gathered information about and infiltrated the ranks of the New People's Army (NPA), a communist insurgency that operated in the countryside. Garrovillas pretended to be one of the NPAs while, in fact, acting on behalf of the CHDF. On four separate occasions between 1986 and 1988, he discovered and visited the newest NPA military training camp locations in Tanay, Rizal and then notified his CHDF contact of these locations.

In early 1989, members of the NPA became suspicious of Garrovillas's anti-communist beliefs and his activities over the preceding three years. In January of 1989, he received a letter at his home which caused him to believe that the NPA had found out that he was a supporter of the government. The letter contained a black ribbon, which Garrovillas understood to be the NPA's symbol for a death threat. Many people in Rizal who had received similar letters containing black ribbons had subsequently been killed by the NPA.

During the next three months, Garrovillas received two more letters at his home with black ribbons attached. The last letter he received stated that continued involvement with the CHDF would result in a "shoot to kill" order against him. Shortly thereafter, Garrovillas made arrangements to leave the Philippines and eventually arrived in the United States. Besides his own testimony in support of his application, Garrovillas submitted two letters from Philippine government officials. The first letter, from Noli G. Bautista, a Chairman/Captain of the Municipality of Morong, Barangay San Pedro, certified that Garrovillas was formerly an agent of a Military Intelligence Unit and that his work led to the capture of several rebel elements. Mr. Bautista's letter stated that Garrovillas remains in danger of being assassinated by communist rebels, and that the government cannot grant any assurance of his safety in the Philippines should he return.

The second letter, from Domingo C. Abalos, a Captain of the Records and Archives division of the Philippine Army, further verified On July 6, 1995, the immigration judge (IJ) issued an oral decision denying Garrovillas's application. The IJ based his decision on three considerations: his finding that Garrovillas's testimony was not credible; his finding that the two supporting letters of Mr. Bautista and Mr. Abalos were unreliable; and a U.S. Department of State report indicating that although the NPA is still active in the Philippines, it is much weaker than it was in 1990. On April 30, 1996, the BIA issued its decision affirming the IJ's denial of the application. Garrovillas petitioned for review.

Garrovillas's prior service as a "confidential civilian employee" in the Intelligence Division. Mr. Abalos's letter neither addressed the nature of Garrovillas's work nor the current danger the NPA would present if he returned.

ANALYSIS

Standard of Review

In the instant case, rather than adopting the IJ's reasoning, the BIA stated that it conducted a "de novo review of the record." When the BIA has conducted a de novo review, our review is limited to the BIA's decision, except to the extent that the IJ's opinion is expressly adopted. Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir.1995). Any error committed by the IJ thus "may be 'rendered harmless' by the BIA's application of the correct legal standard." Shirazi-Parsa v. INS, 14 F.3d 1424, 1427 (9th Cir.1994) (quoting Elnager v. INS, 930 F.2d 784, 787 (9th Cir.1991)). The BIA's opinion, however, cannot be mere "boilerplate," and must describe with "sufficient particularity and clarity the reasons for denial of asylum." Shirazi-Parsa, 14 F.3d at 1427 (quoting Castillo v. INS, 951 F.2d 1117, 1121 (9th Cir.1991)).

We review the factual determinations of the BIA under the substantial evidence standard. Shirazi-Parsa, 14 F.3d 1424, 1429 (9th Cir.1994). The court must determine whether the BIA's conclusion, based on the evidence presented, is "substantially reasonable." Because the applicant bears the burden of proof to demonstrate eligibility for asylum, this court will reverse " 'only if the evidence presented ... was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed.' " Id. at 1427 (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992)). This standard does not "preclude a court from vacating and remanding a case for further consideration where the BIA's denial of asylum was based on an error of law." Kotasz v. INS, 31 F.3d 847 (9th Cir.1994).

The BIA's Credibility Determination Is Not Supported by Substantial Evidence

The BIA found that petitioner Garrovillas's testimony was not credible. We review credibility findings, like other factual determinations, under the substantial evidence standard. See Osorio v. INS, 99 F.3d 928, 931 (9th Cir.1996). The BIA must have "a legitimate articulable basis to question the petitioner's credibility, and must offer a specific, cogent reason for any stated disbelief." Id. (quoting Hartooni v. INS, 21 F.3d 336 342, (9th Cir.1994)). Furthermore, any such reasons "must be substantial and bear a legitimate nexus to the finding." Mosa v. Rogers, 89 F.3d 601, 604 (9th Cir.1996). Generalized statements that do not identify specific examples of evasiveness or contradiction in the petitioner's testimony prevent us from conducting a proper review. Here, the BIA premised its finding that the petitioner was not credible on two grounds, both of which are insufficient to justify its determination.

First, the BIA noted an inconsistency between Garrovillas's 1990 application, which stated that he had been shot at, and his in-court testimony six years later, in which he testified that he had never been shot at. In Turcios v. INS, 821 F.2d 1396 (9th Cir.1987), we observed that "[u]ntrue statements by themselves are not reason for refusal of refugee status." Id. at 1400. During the hearing, Garrovillas offered an explanation as to why there was a discrepancy in the two statements: he said that his former attorney prepared his 1990 asylum application and that he had signed it without reading it. The BIA did not comment on Garrovillas's explanation, nor suggest any reason that it found his explanation not credible.

                See Osorio, 99 F.3d at 933 (requiring Board or IJ, on remand, not only to identify specific inconsistencies, but also "address in a reasoned manner the explanations that [petitioner] offers for these perceived inconsistencies").  In itself, the inconsistency does not prove much.  It is quite possible that the attorney who filed the application stretched the facts without informing Garrovillas.  Moreover, there was no reason for Garrovillas to disavow the earlier statement other than a desire to correct an error of which he had not been aware.  His revised story served to lessen the degree of persecution he experienced, rather than to increase it.  In addition, there is nothing in the record to suggest that Garrovillas had any reason to fear that a false assertion would be exposed at the hearing.  Thus, as far as we can tell from the record, the most likely explanation for the change is a desire to tell the truth and to correct a false statement that reflected no culpable conduct on his part.  If the inconsistency were accompanied by other indications of dishonesty, we might deem the BIA's finding justified-had it offered a reason for rejecting Garrovillas's explanation.  As this court announced in Vilorio-Lopez v. INS, 852 F.2d 1137 (9th

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