Hernandez-Ortiz v. I.N.S.

• Decision Date: 02 December 1985
• Docket Number: P,Nos. 82-7654,HERNANDEZ-ORTI,84-7217,s. 82-7654
• Citation: 777 F.2d 509
• Parties: Adelaetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 509

777 F.2d 509

Adela HERNANDEZ-ORTIZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

Nos. 82-7654, 84-7217.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Nov. 6, 1984.

Decided Dec. 2, 1985.

Margaret L. Popkin, Los Angeles, Cal., for petitioner.

Fumiko H. Wasserman, Asst. U.S. Atty., Los Angeles, Cal., for respondent.

Petition for Review of an Order by the Board of Immigration Appeals.

Before NELSON, BOOCHEVER, and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

Adela Hernandez-Ortiz petitions for review of the Immigration and Naturalization Service's denial of her motion to reopen her deportation proceedings so that she may apply for asylum and for a determination that the Attorney General is prohibited from deporting her. Hernandez-Ortiz established a prima facie case for relief under both 8 U.S.C. Sec. 1158(a) (1982) and 8 U.S.C. Sec. 1253(h) (1982). Whether or not the Board relied in part on its discretionary authority to rule on the merits when considering a motion to reopen, we are compelled to conclude that it abused its discretion. Accordingly, we reverse and remand.

I. BACKGROUND

Petitioner Adela Hernandez-Ortiz is a native and citizen of El Salvador who entered the United States without inspection in September 1977. In August 1980, an immigration judge determined that Hernandez-Ortiz was deportable and, two years later, the Board of Immigration Appeals ("Board") dismissed her appeal of that decision. In October 1982, Hernandez-Ortiz was instructed to report to the Immigration and Naturalization Service ("INS") on November 2, 1982 for deportation. A petition for review of the deportation order--which automatically stayed that order--was filed with this court on November 1, 1982. ¹ When Hernandez-Ortiz reported to the INS office on November 2, 1982, the Service informed her that she would have to remain in custody until it could verify that an appeal to this court had been filed.

On November 5, 1982, the INS erroneously deported Hernandez-Ortiz to El Salvador. Aware of its error, the United States government agreed to arrange and pay for her return to the United States. It was not until November 22, 1982, however, that Hernandez-Ortiz actually left El Salvador and reentered the United States; although the United States government had made the necessary arrangements, Hernandez-Ortiz was unable to depart from El Salvador any earlier because airport officials claimed she did not have the proper exit documents. She was not allowed to leave until she paid a Salvadoran immigration official approximately $200. ² According to Hernandez-Ortiz, she has now come to the particular attention of the Salvadoran authorities and they regard her as a traitor.

In addition, a series of other events that took place in El Salvador subsequent to her deportation hearing prompted Hernandez-Ortiz to apply for political asylum after she returned to the United States. In November 1980, after the completion of the proceedings in front of the immigration judge, Hernandez-Ortiz's brother--a teacher--and his wife were murdered in El Salvador by Salvadoran security forces. A few days before Hernandez-Ortiz was erroneously deported to El Salvador in November 1982, Salvadoran soldiers entered her grandparents' grocery store, threatened them with submachine guns, and robbed them of both goods and the store's gross receipts for the day. In June 1983, shortly before Hernandez-Ortiz petitioned to have her deportation proceedings reopened, her brother-in-law's wife was kidnapped late at night by members of the Salvadoran National Guard who beat her and threw salt and sand in her eyes. The Guardsmen returned to Hernandez-Ortiz's brother-in-law's house and threatened to kill both her brother-in-law and his wife.

In July 1983, Hernandez-Ortiz submitted to the Board a motion for reopening of her deportation proceedings along with her formal request for asylum and a prohibition against deportation, as well as her supporting declaration and documentary evidence. The Board denied her motion to reopen, concluding that Hernandez-Ortiz's fears were merely those "concerning the political upheaval and random violence" in El Salvador and that any threat she faces is not related to her political opinion.

II. GOVERNING LEGAL STANDARDS

Hernandez-Ortiz ultimately seeks both relief under section 208(a) of the Refugee Act of 1980, 8 U.S.C. Sec. 1158(a) (1982)--which is referred to as "asylum"--and relief under section 243(h) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1253(h) (1982)--which is properly referred to as "prohibition against deportation," see Bolanos-Hernandez v. INS, 767 F.2d 1277, 1283 (9th Cir.1984). But she does not, at this time, appeal from a denial of relief under either of these sections. Rather, she appeals from the Board's denial of her motion to reopen her deportation proceedings in order that she may assert such claims for relief.

The Supreme Court recently reiterated that the Board's denial of a petition by an alien seeking reopening is reviewed for an abuse of discretion. See INS v. Rios-Pineda, --- U.S. ----, 105 S.Ct. 2098, 2101, 85 L.Ed.2d 452 (1985) (citing INS v. Phinpathya, 464 U.S. 183, 104 S.Ct. 584, 588 n. 6, 78 L.Ed.2d 401 (1984) ); accord INS v. Jong Ha Wang, 450 U.S. 139, 143-44 n. 5, 101 S.Ct. 1027, 1030-31 n. 5, 67 L.Ed.2d 123 (1981). If the petitioner fails to establish a prima facie case for relief, the Board does not abuse its discretion in denying the motion to reopen. Maroufi v. INS, 772 F.2d 597, 600 (9th Cir.1985). Accordingly, we must first determine whether Hernandez-Ortiz established a prima facie case for either of these forms of relief based on new, material evidence.

A prima facie case is established when an alien presents "affidavits or other evidentiary material," 8 C.F.R. Sec. 103.5 (1985) (emphasis added), which, if true, would satisfy the requirements for substantive relief. Reyes v. INS, 673 F.2d 1087, 1089-90 (9th Cir.1982). However, the requirements for substantive relief under section 208(a) are considerably less stringent than those under 243(h); accordingly, there is a significant difference between the tests we apply in the two cases. See Cardoza-Fonseca v. INS, 767 F.2d 1448, 1451 (9th Cir.1985); Bolanos-Hernandez, 767 F.2d at 1282. When a petitioner seeks substantive relief under section 243(h) she must demonstrate a clear probability that her life or freedom would be threatened if she returned to her country. See INS v. Stevic, 467 U.S. 407, 104 S.Ct. 2489, 2498, 81 L.Ed.2d 321 (1984). As the Supreme Court explained, persecution must be more likely than not. Id. However, where the relief sought is asylum, persecution need not be more likely than not. Stevic, 104 S.Ct. at 2498 n. 19; Cardoza-Fonseca, 767 F.2d at 1454. The petitioner need only demonstrate that she is a refugee, i.e., that she has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. See Cardoza-Fonseca, 767 F.2d at 1451; 8 U.S.C. Sec. 1101(a)(42)(A) (1982).

As we have explained, the test for refugee status includes a subjective and an objective component. Bolanos-Hernandez, 767 F.2d at 1283 & n. 11. The subjective component is satisfied if the fear is genuine. The objective component is satisfied if persecution is, in fact, a "reasonable possibility." Stevic, 104 S.Ct. at 2498; Carvajal-Munoz v. INS, 743 F.2d 562, 573-74 (7th Cir.1984). In determining whether persecution is a reasonable possibility, the "conditions in the [alien's] country of origin, its laws, and the experiences of others" are relevant. Bolanos-Hernandez, 767 F.2d at 1283 n. 11; United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status paragraphs 42, 43 (1979) (cited hereinafter as Handbook ). ³ The alien's "desire to avoid a situation entailing the risk of persecution" may be enough to satisfy the well-founded-fear test and thus establish eligibility for asylum relief. Bolanos-Hernandez, 767 F.2d at 1283 n. 11; Handbook, supra, at p 45.

Because the well-founded-fear standard is more generous than the clear-probability standard, an alien who satisfies the latter, a fortiori has satisfied the former. Bolanos-Hernandez, 767 F.2d at 1282. Accordingly, we examine Hernandez-Ortiz's claim to determine if she established a prima facie case for relief under section 243(h). ⁴ If so, she has also established a prima facie case for relief under section 208(a).

III. THE PRIMA FACIE CASE

A. Likelihood of Persecution

Hernandez-Ortiz's affidavit describes several incidents in which the authority of the Salvadoran government was specifically and violently directed against members of her family. She also claims that Salvadoran officials now regard her as a traitor. Because motions to reopen are decided without a hearing and serve only a limited screening function, see Reyes, 673 F.2d at 1089, 1091, for purposes of these motions the Board must accept as true the factual statements contained in the affidavits submitted by a petitioner. Maroufi, 772 F.2d at 600; Reyes, 673 F.2d at 1090. Yet the Board found that Hernandez-Ortiz had failed to establish a prima facie case, dismissing her allegations as "conclusory assertions ... insufficient to justify reopening in the absence of corroborating evidence."

In reaching its conclusion the Board misconstrued the law and imposed an improper evidentiary burden on the petitioner. First, to be entitled to reopening in order to assert a section 243(h) claim, an alien need only present an affidavit that is not inherently unbelievable, cf. Reyes, 673 F.2d at 1090 (motion to reopen to present suspension-of-deportation claim), and that contains factual allegations that, if true, would establish a clear probability of future persecution. Unless the alleged facts are "inherently unbelievable," corroboration is not...