Hernandez v. Reno, 00-3721

• Decision Date: 14 June 2001
• Docket Number: No. 00-3721,00-3721
• Citation: 258 F.3d 806
• Parties: (8th Cir. 2001) ROLANDO HERNANDEZ, PETITIONER, v. JANET RENO, <A HREF="#fr1-1" name="fn1-1">1 ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE; DORIS MEISSNER, <A HREF="#fr1-2" name="fn1-2">2 COMMISSIONER, U.S. IMMIGRATION AND NATURALIZATION SERVICE; CURTIS ALJETS, DISTRICT DIRECTOR, ST. PAUL, MINNESOTA DISTRICT, U.S. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENTS. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 806

258 F.3d 806 (8th Cir. 2001)

ROLANDO HERNANDEZ, PETITIONER, v. JANET RENO,¹ ATTORNEY GENERAL, U.S. DEPARTMENT OF JUSTICE; DORIS MEISSNER,² COMMISSIONER, U.S. IMMIGRATION AND NATURALIZATION SERVICE; CURTIS ALJETS, DISTRICT DIRECTOR, ST. PAUL, MINNESOTA DISTRICT, U.S. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENTS.

No. 00-3721

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: June 14, 2001

Filed: August 15, 2001

On Petition for Review From the Decision of the Board of Immigration Appeals.

Before Murphy, Heaney, and Beam, Circuit Judges.

Murphy, Circuit Judge.

Petitioner Rolando Hernandez entered the United States without inspection in 1992 after fleeing Guatemala to escape from the Organization for People in Arms (ORPA), which had impressed him into its service. The Immigration and Naturalization Service (INS) initiated deportation proceedings against him in 1993. Hernandez conceded deportability, but requested asylum and withholding of deportation. He was given an individual merits hearing before an immigration judge in June 1994. His testimony at the hearing forms the factual record in this matter, and the judge specifically found his testimony to be credible before granting his requested relief. The Board of Immigration Appeals (Board) issued its decision in October 2000, that Hernandez was statutorily ineligible for asylum. After carefully reviewing the record, we remand to the Board for its further consideration.

I.

Hernandez was born in Quezaltenango, Guatemala on August 20, 1965. Insofar as this case is concerned, his troubles began when two ORPA members approached him on a bus in April 1992 and initiated a conversation. The two men did not identify themselves as members of a guerrilla organization. At that time Hernandez had never heard of ORPA and did not know that it was a guerrilla group which used violent means in pursuit of its goals. During the conversation Hernandez told the two men where he lived and worked.

The two men began visiting him at his workplace and at the restaurant where he usually ate. They also began to pressure him to join their organization, but they misrepresented the nature of ORPA. They said that the group was dedicated to improving the lives of Guatemalans by undertaking non violent activities and protesting government injustices. Although Hernandez was generally sympathetic with the stated goals, he was reluctant to join the organization. He eventually did so only after the two men threatened to kill him if he did not. He believed that he would be expected to be involved in organizing strikes, work stoppages, or demonstrations against the government. He had no idea that he would be asked to participate in violent activities.

About a month after their first meeting, the two men came to a restaurant where Hernandez was eating, forced him into a car, and drove him to a guerrilla camp in a remote mountain location. Hernandez found approximately fifty ORPA soldiers at this camp, as well as two other individuals who had also been forcibly recruited and kidnapped. The three newcomers were then oriented to the group and given weapons training. Hernandez objected and informed the leaders that he did not want to be involved with weapons. They told him that the training was necessary and that ORPA had to take extreme measures in order to obtain its goals.

The next day Hernandez was taken by the guerrillas to a small village outside of Retalhuleu, where they engaged government forces in battle. Hernandez objected to taking part, but the leaders said the action was necessary. After the battle, the commander ordered Hernandez and others to dynamite a bridge and to stop cars and loot them. No one was injured by the dynamiting, but some of the drivers were beaten. Hernandez testified that he had not wanted to join in any of these acts, and only did so because he feared that the guerrillas would otherwise harm or kill him.

Several days later after the commander had received reports that some villagers in Playa Grande were giving information to the army, he ordered a group to go there to retaliate. About fifty people went to Playa Grande, and Hernandez and several others were ordered to remove villagers from their homes and to ransack their houses. They herded approximately 100 villagers to the town center. The commander identified about fifteen in this group as government informants, and ordered Hernandez and ten other guerrillas to open fire on them. All of the suspected informants were killed.

Hernandez did not want to be part of this firing squad, but he knew he was being tested and understood he would be killed if he did not follow the commander's order. He would rather "have turned the fire on [his] own companions," but he knew that "with one machine gun [he] wasn't going to be able" to take care of all of the guerrillas. The commander stood right behind Hernandez during the shooting and examined the magazine of his rifle immediately afterwards to check whether he had followed orders. Hernandez testified that he attempted to aim away from the villagers and tried not to hit anyone, and that he shot approximately 10 to 12 rounds of a 30 round magazine to the left of where he thought the villagers were standing. He indicated that he did not believe that he had hit anyone.

After the shootings in Playa Grande, Hernandez went to the ORPA commander and asked to be set free. He told the commander that he disagreed with the group's violent tactics and that he thought ORPA was doing more harm in Guatemala than good. The commander replied that Hernandez could not leave the group and that he would send him "to hell" if he ever asked to leave again. The commander then ordered two guerrillas to keep guard over him to prevent any escape attempt. Hernandez also went to the two men who had first sought him out and told them that he wanted to leave the group, but they warned him that he would be killed if he continued to talk that way. He considered trying to turn himself over to the government forces, but he feared they would shoot him as a guerrilla.

Several days later the guerrillas engaged in battle with government forces near the Mexican border. Hernandez recognized that this could be the best opportunity for escape, and he ran towards the border. His two guards ordered him to stop, but he shot at them and continued to run. The guerrillas turned their fire on Hernandez and hit him in the lower leg, but he ran on and eventually escaped into Mexico. He had been with ORPA approximately 20 days before he was able to escape.

Hernandez lived and worked in Mexico City for about two months before he learned that two men had been questioning his former employer in Guatemala, Guillermo Cruz, about "Rolando." Hernandez was aware that ORPA had found a previous escapee who had fled to Costa Rica; he had been taken back to Guatemala and killed. Hernandez feared that he would meet a similar fate if ORPA guerrillas succeeded in finding him. He borrowed money from Cruz and attempted to flee into the United States. After several unsuccessful attempts, Hernandez entered the United States on September 5, 1992. He maintained contact with his mother and with Cruz. His mother warned him to stay in hiding because three armed men had been looking for him, and Cruz sent word that "they" were looking for him.

II.

In May 1993, the INS issued an order to show cause against Hernandez, alleging that he was deportable for having entered the United States without inspection under § 241(a)(1)(B) of the Immigration and Naturalization Act (Act).³ Hernandez conceded deportability, but applied for asylum and withholding of deportation under §§ 208 and 243(h)(1) of the Act. He contended that he was unable to return to Guatemala where he faced persecution by ORPA members because of his political opinion that their actions were harmful to Guatemala, an opinion that he had publicly expressed to his guerrilla commander and other group members.

A hearing was held before an immigration judge in June 1994. Hernandez testified through a translator. The immigration judge found that Hernandez credibly established that he had been forcibly recruited into ORPA by coercion and misrepresentations, that he had not supported the guerrillas, and that as soon as he became aware of their goals he informed the leaders of his disagreement with them and attempted to leave the group. The judge concluded that Hernandez was entitled to asylum because his credible testimony established a well founded fear of persecution by guerrilla leaders who knew that he had deserted their forces after announcing his opposition to them and also that Hernandez had established that it would be more likely than not that he would be persecuted if he returned to Guatemala. The judge then granted Hernandez's application for asylum and withholding of deportation.

The INS appealed, and the Board of Immigration Appeals (Board) sustained that appeal in October 2000. The Board held that Hernandez was statutorily ineligible for relief because he had "assisted or otherwise participated in the persecution of [a] person on account of... political opinion" within the meaning of §§ 101(a)(42) and 243(h)(2)(A) of the Act. It focused its attention on the action in Playa Grande which was the basis for its conclusion that Hernandez had assisted in persecution. Although the Board did not overturn the findings of the immigration judge who had found Hernandez's testimony entirely credible, it indicated that the record was "inconclusive" as to whether he had aimed at or shot any villagers.⁴ It concluded that it need not decide whether Hernandez had aimed or shot at anyone, because his testimony indicated that he had assisted in persecution on account of political opinion since the villagers had been targeted for suspected aid to the Guatemalan government. The Board found that Hernandez did not meet his burden of proving otherwise, and cited Matter...