Guevara Flores v. I.N.S.
| Decision Date | 11 April 1986 |
| Docket Number | No. 84-4767,84-4767 |
| Citation | 786 F.2d 1242 |
| Parties | Ana Estela GUEVARA FLORES, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Lisa S. Brodyaga, Thelma O. Garcia, Harlingen, Tex., for petitioner.
Allen W. Hausman, Edwin Meese, Atty. Gen., U.S. Dept. of Justice, Robert L. Bombough, Director, Asst. Director, Office of Immigration Litigation, Civ. Div., Washington, D.C., for respondent.
David H. Lambert, Dist. Director, I.N.S., New Orleans, La., for Other Interested Parties.
Petition for Review of an Order of the Board of Immigration Appeals.
Before BROWN, REAVLEY, and HILL, Circuit Judges.
In this appeal, an alien seeks review of a decision by the Board of Immigration Appeals denying her motion to reopen her application for asylum in the United States. Because we conclude that the new evidence proffered by the alien constituted a prima facie showing that she was entitled to the relief she requested, and because she has shown a reasonable likelihood that the relief she seeks may be warranted as a matter of administrative discretion, we reverse the decision of the Board. We therefore remand the case for a reopening of the alien's asylum application before the Immigration Law Judge.
Ana Estela Guevara Flores (Guevara) is a 36 year old native of El Salvador. On or about June 24, 1981, Guevara entered the United States by surreptitiously crossing the border near Laredo, Texas. She was apprehended when Border Patrol agents found her, and twelve other aliens, hiding in a railroad freight car near Cotulla, Texas. At the time of her arrest, Guevara was carrying a tape of the last Mass of the Archbishop Oscar Romero. 1 She was also carrying letters of introduction to church activists in Puerto Rico written in what the Federal Bureau of Investigation (FBI) termed "classic marxist rhetoric."
The Border Patrol believed these materials to be of a suspicious nature, so it turned them over to the FBI, which commenced a foreign counterintelligence investigation for the purpose of ascertaining Guevara's identity. According to counsel for the United States, confidential FBI sources led that agency to suspect that Ana Guevara was a Salvadoran guerrilla leader known by the nomme de guerre Comandante Norma. The FBI, therefore, prevailed upon the United States Embassy in El Salvador to obtain a fingerprint card from Salvadoran authorities for Comandante Norma, whose true name is Norma Fidelina Guevara de Grande. The possibility that the notorious comandante Norma had been apprehended in Texas received a good deal of play in the Salvadoran press.
The fingerprint comparisons eventually revealed that Ana Guevara was not, in fact, Comandante Norma. The Salvadoran authorities acknowledged that Guevara was not a known guerrilla or a subversive, but they indicated that possession of "subversive literature" was a crime for which Guevara could be detained upon her return to El Salvador. 2 The Salvadoran authorities, therefore, requested the date and number of Guevara's flight in the event she was deported to El Salvador, and asked that copies of the documents in her possession be furnished to the plane's captain for delivery to Colonel Eugenio Vides Casanova, Director General of the Salvadoran National Guard. 3
Because she entered the United States surreptitiously, Guevara came to the attention of yet another federal agency, the Immigration and Naturalization Service (INS). On the date of her apprehension, Guevara was served with an Order to Show Cause which demanded that she prove she was not subject to deportation under the terms of the Immigration and Nationality Act, 8 U.S.C. Sec. 1251(a)(2). She was also charged with entering the United States without inspection by immigration authorities, a violation of 8 U.S.C. Sec. 1325.
Guevara, who was unrepresented by counsel at the time, pleaded guilty to the charge that she had violated Sec. 1325. She was sentenced to, and served, a term of ninety days in jail for this offense. The Show Cause Order was set for a hearing before an Immigration Judge on October 8, 1981. At this hearing Guevara conceded the illegality of her entry into the United States, but requested asylum in this country by virtue of her status as a refugee under 8 U.S.C. Secs. 1101(a)(42)(A), and 1158(a). In accordance with INS regulations, 8 C.F.R. Sec. 208.2, Guevara filled out Form I-589 entitled "Request for Asylum in the United States."
Guevara, however, left a number of spaces on the form and its addendum blank. 4 She failed to complete the form because of her belief that communications between the United States government and the authorities in El Salvador had already placed her in "extreme jeopardy." In her words
The United States government has informed the Junta that they have arrest (sic) "La Comandante Norma Guevara." Even though I am not la comandante, the Junta believes that I am, or if they by now recognize that I am not, they consider me to be a revolutionary, thanks to the U.S. Government, and will kill me on return.
Because she had been accused of being Commander Norma, Guevara stated that she could not complete the remainder of Form I-589 without a guarantee that the contents of her asylum application would remain confidential and would not be the subject of further disclosures to the Salvadoran authorities.
INS, as a matter of policy, forwards all asylum applications to the State Department for an advisory opinion on the merits of the application. Accordingly, Guevara's deportation hearing was recessed while the materials pertinent to her application were forwarded to the Asylum Division at the State Department for their analysis. The State Department concluded that Guevara had failed to meet her burden of proving that she possessed a well-founded fear of persecution if she were to be deported to El Salvador. The Department's opinion was based, in large part, on Guevara's failure to provide information relevant to her claim on Form I-589. The Immigration Judge, therefore, offered her the opportunity to supplement her responses, but in the absence of a guarantee that the contents of her application would remain confidential, Guevara declined to do so.
Upon receipt of the State Department's opinion, Guevara's deportation hearing was reconvened. At the hearing, Guevara moved for the issuance of administrative subpoenas pursuant to 8 C.F.R. Sec. 287.4. She sought production of all communications pertaining to her between the United States Government and the Salvadoran authorities. In support of the motion, her attorney stated that Guevara sought these communications not only for the purpose of showing that her case had received considerable publicity in El Salvador, but also to show that the communications between the two governments had substantially increased the likelihood that she would be persecuted upon her return to Salvadoran territory. The Immigration Judge, however, denied the motion. He found that much of the information sought was merely cumulative and stated that the information which was not cumulative was more appropriately obtained through a request under the Freedom of Information Act.
Guevara then appealed the decision of the Immigration Judge to the Board of Immigration Appeals (the Board). The Board, in a brief per curiam opinion, affirmed the denial of Guevara's asylum application on the grounds that she had failed to meet her burden of proof. Guevara also contended that the Immigration Judge had erred in denying her requests for confidentiality, but the Board concluded that the Judge had taken The Board also affirmed the denial of Guevara's request for administrative subpoenas.
Within a month of the Board's decision, however, the FBI declassified and released three documents, pursuant to Guevara's Freedom of Information Act request, which had not been available at her hearing before the Immigration Judge or during the pendency of her appeal to the Board. The first document was a transmission from a legal attache in Panama to the Director of the FBI which reported that "the detention of a young woman alleged to be Norma Fidelina Guevara ... has received a good deal of play in the Salvadoran press." It continued "we are making inquiries here to determine whether the person apprehended in the United States using the name Ana Estela Guevara Flores might in fact be the person press accounts allege to be Norma Fidelina Guevara...."
The second document was a transmission from the San Antonio, Texas office of the FBI to FBI Headquarters in Washington. It was this document that identified the communications Guevara was carrying when apprehended as ones "written in classic marxist rhetoric." The document also contained the following information:
The Salvadoran government through Legat, Mexico City has requested that they be advised when [Guevara] is deported to El Salvador and also request[s] the communication she had i[n] her possession.
The final document was a second transmission from the Legal Attache in Panama to the Director of the FBI. It informed the FBI that Salvadoran authorities had determined that Guevara was not a known guerilla, nor was she the notorious Comandante Norma. The authorities stated, however, that possession of subversive literature in El Salvador was a crime for which Guevara could be detained upon return to her country. They then reiterated their request for the date and flight number of Guevara's return to El Salvador in the event she was deported, and requested that copies of the documents she was carrying be forwarded for analysis to Colonel Vides Casanova, Director General of the Salvadoran National Guard.
Upon receiving these documents, Guevara filed a motion to reopen her...
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