Lopez-Galarza v. I.N.S.

• Citation: 99 F.3d 954
• Decision Date: 15 March 1996
• Docket Number: No. 94-70683,LOPEZ-GALARZA,94-70683
• Parties: 96 Cal. Daily Op. Serv. 8143, 96 Daily Journal D.A.R. 13,541 Mercedes Lina; Raul Jose Hernandez-Lopez, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 954

99 F.3d 954

96 Cal. Daily Op. Serv. 8143, 96 Daily Journal

D.A.R. 13,541

Mercedes Lina LOPEZ-GALARZA; Raul Jose Hernandez-Lopez, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 94-70683.

United States Court of Appeals, Ninth Circuit.

Submitted March 15, 1996. ^*

Decided Nov. 8, 1996.

Charles E. Nichol, San Francisco, CA, for petitioners.

Francesco Isgro, 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. INS Nos. A29-769-387, A29-769-388.

Before: BEEZER and HAWKINS, Circuit Judges, and ZILLY, ^** District Judge.

Opinion by Judge MICHAEL DALY HAWKINS; Concurrence by Judge BEEZER.

MICHAEL DALY HAWKINS, Circuit Judge:

Mercedes Lina Lopez-Galarza and her son, Raul Jose Hernandez-Lopez, petition for review of the final order of deportation of the Board of Immigration Appeals ("the BIA"). We have jurisdiction pursuant to 8 U.S.C. § 1105a(a), and we grant the petition. We hold that Lopez-Galarza has demonstrated past persecution sufficient to establish eligibility for asylum, and we remand to the BIA for a determination of whether she and her son are entitled to asylum as a matter of discretion.

FACTUAL AND PROCEDURAL HISTORY

Petitioner is a 32-year-old native and citizen of Nicaragua. Her 7-year-old son seeks derivative asylee status pursuant to 8 U.S.C. § 1158(c). Lopez-Galarza and her son concede deportability under 8 U.S.C. § 1251(a)(1)(B) (entry without inspection), but seek asylum under 8 U.S.C. § 1158(a) or withholding of deportation under 8 U.S.C. § 1253(h) based on the experiences of Lopez-Galarza and her family.

Lopez-Galarza's father, Julio Alfredo Lopez, was an officer of the National Guard during the Somoza era. Because of his affiliation with the Somoza regime, the Sandinistas arrested him when they assumed power in 1979. He was convicted of unspecified crimes and sentenced to at least 23 years in prison. While in prison, he was tortured physically and mentally by the Sandinistas. Although he was released in 1986 due to In 1981, when Lopez-Galarza was 18, her neighbor, a member of the Sandinista military, accused her of supporting the counter-revolutionary contras, an accusation she attributes to her father's affiliation with the Somoza regime. Lopez-Galarza was taken from her home by Sandinista military officers to a police station, where she was imprisoned for 15 days. During that period, Lopez-Galarza was raped repeatedly, confined in a jail cell for long periods without food, forced to clean the bathrooms and floors of the men's jail cells, and subjected to other forms of physical abuse. Lopez-Galarza was eventually released.

illness, he remained under house arrest while the Sandinistas held power.

In the years following her release, Lopez-Galarza and her family were subjected to additional mistreatment. Pro-Sandinista mobs stoned and vandalized their house, painted "Death to the contras" on the house, and threatened to drive the family out. Lopez-Galarza attributes this mistreatment to her family's refusal, for ideological reasons, to join the "Committees for the Defense of the Sandinistas" ("CDS"). The CDS, which controlled food rations under the Sandinista regime, took away the family's ration card when Lopez-Galarza's mother left the country and could no longer attend CDS meetings to obtain ration cards. The family was then forced to buy food on the black market. Lopez-Galarza was able, however, to secure a job at a state-owned hospital.

Several members of Lopez-Galarza's family fled Nicaragua during the years of Sandinista rule. Her mother left in 1987, and was granted asylum in the United States in November 1988. Lopez-Galarza's husband and eldest son fled in 1988. ¹ Lopez-Galarza was unable to accompany them because she had a second son who was only two months old at the time. Another obstacle to her departure was the Nicaraguan immigration officials' refusal to issue Lopez-Galarza a passport to leave the country. Eventually obtaining a passport by bribing an official, Lopez-Galarza and her son entered the United States without inspection in April 1989.

Five months later, Lopez-Galarza and her son sought relief from deportation by applying for asylum under 8 U.S.C. § 1158(a) or withholding of deportation under 8 U.S.C. § 1253(h). Lopez-Galarza's application for asylum and her affidavits stated that she feared future persecution in Nicaragua because she and her family had been persecuted by the Sandinistas on account of her father's role in the Somoza government. She recounted her imprisonment, rape, and other abuse in an affidavit. At hearings in March and September 1990, Lopez-Galarza testified to the events described above, and submitted letters from her father stating that he still experiences harassment by the Sandinistas, despite their defeat in the presidential elections of 1990. Lopez-Galarza's half-sister, ² an eyewitness to Lopez-Galarza's arrest, testified at the deportation hearing, corroborating Lopez-Galarza's testimonial account of her imprisonment and rape at the hands of Sandinista officers.

The State Department's Bureau of Human Rights and Humanitarian Affairs ("BHRHA") issued an advisory opinion on October 24, 1989, ³ concluding Lopez-Galarza had a "well-founded fear of persecution in Nicaragua." ⁴ However, following the Sandinistas' defeat in the February 1990 presidential election and the election of a new coalition government supported by parties in opposition to the Sandinista Party, the immigration judge ("IJ") continued Lopez-Galarza's deportation hearing to await a second advisory opinion from the BHRHA. The BHRHA issued a second opinion on June 27, 1990, concluding that, in light of the Sandinistas' recent defeat, Lopez-Galarza no longer had a well-founded fear of persecution.

On September 10, 1990, the IJ denied Lopez-Galarza's application for asylum and withholding of deportation. The IJ expressed On September 21, 1994, the BIA denied petitioner's request for oral argument, upheld the denial of asylum and withholding of deportation, and upheld the grant of voluntary departure. Lopez-Galarza timely petitioned for review of the BIA's final order.

some skepticism about the details of her 1981 imprisonment, ⁵ but stated that "assuming arguendo" that the incident was politically motivated and Lopez-Galarza was treated as she alleged, the 1981 incident would constitute past persecution based on political opinion. It nevertheless concluded that the Sandinistas' defeat eliminated any well-founded fear of future persecution. The IJ granted voluntary departure under 8 U.S.C. § 1254(e).

ANALYSIS

Lopez-Galarza raises two challenges to the BIA's denial of asylum. She argues that her imprisonment, rape, and other physical abuse by Sandinista military officials warrants a grant of asylum on the basis of past persecution alone, pursuant to Matter of Chen, Int. Dec. 3104 (BIA 1989). She also challenges the BIA's determination that she failed to establish a well-founded fear of future persecution in Nicaragua. In the alternative, Lopez-Galarza argues that she satisfied the requirements for withholding of deportation under 8 U.S.C. § 1253(h).

1. Asylum under 8 U.S.C. § 1158(a)

a. Eligibility for Asylum

Where the BIA reviews the IJ's decision de novo, we are limited to reviewing the decision of the BIA. Acewicz v. INS, 984 F.2d 1056, 1059 (9th Cir.1993). We review for "substantial evidence" the BIA's determination of eligibility for asylum. Ramos-Vasquez v. INS, 57 F.3d 857, 861 (9th Cir.1995). This means that the BIA's eligibility determination "must be upheld if 'supported by reasonable, substantial, and probative evidence on the record considered as a whole.' " Id. (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992)).

To be eligible for asylum, petitioner must show that she is unable or unwilling to return to her country because she has suffered past persecution or has a well-founded fear of future persecution "on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A). Once eligibility is established, it is within the Attorney General's discretion to grant asylum. INS v. Cardoza-Fonseca, 480 U.S. 421, 428 n. 5, 107 S.Ct. 1207, 1211 n. 5, 94 L.Ed.2d 434 (1987).

Past persecution and a well-founded fear of future persecution provide separate avenues for establishing eligibility for asylum. Kazlauskas v. INS, 46 F.3d 902, 905 (9th Cir.1995) (citing Acewicz, 984 F.2d at 1061-62 and Berroteran-Melendez v. INS, 955 F.2d 1251, 1255 (9th Cir.1992) (citing Desir v. Ilchert, 840 F.2d 723, 726 (9th Cir.1988))).

(i) Well-founded Fear of Future Persecution

A well-founded fear of future persecution has both subjective and objective components. Prasad v. INS, 47 F.3d 336, 338 (9th Cir.1995) (citation omitted). The subjective component may be satisfied by credible testimony that the applicant genuinely fears persecution. Id. (citing Acewicz, 984 F.2d at 1061). The objective component requires "a In considering whether Lopez-Galarza was eligible for asylum, the BIA first found no basis in the record to support a "well-founded fear of persecution," 8 U.S.C. § 1101(a)(42)(A). It based this conclusion in large part on the BHRHA's revised opinion, which reported that the Sandinistas no longer governed Nicaragua and that arrests of relatives of former Somoza National Guard members had ceased. The BIA concluded that the change in regimes in Nicaragua had reduced or eliminated the objective threat of future persecution.

showing by credible, direct, and specific evidence of facts supporting a reasonable fear of persecution on the relevant ground." Prasad, 47 F.3d at 338 (citations omitted).

Because we decide this case on the basis of past persecution, we need not reach factual questions that relate to the...