M.A. A26851062 v. U.S. I.N.S.

• Decision Date: 29 September 1988
• Docket Number: No. 88-3004,88-3004
• Citation: 858 F.2d 210
• Parties: M.A. A26851062, Petitioner, v. U.S. IMMIGRATION & NATURALIZATION SERVICE, Respondent, Central American Refugee Center; Lawyers Committee for Human Rights and Americas Watch, Amici Curiae.
• Court: U.S. Court of Appeals — Fourth Circuit

Page 210

858 F.2d 210

M.A. A26851062, Petitioner, v. U.S. IMMIGRATION & NATURALIZATION SERVICE, Respondent Central American Refugee Center; Lawyers Committee for Human Rights and Americas Watch, Amici Curiae.

No. 88-3004.

United States Court of Appeals Fourth Circuit.

Argued July 5, 1988.

Decided Sept. 29, 1988.

William Peter Van Wyke, Washington, D.C., for petitioner.

Parker Singh, Jr., Office of Immigration Litigation, Civil Div., U.S. Dept. of Justice (John R. Bolton, Asst. Atty. Gen., Civil Div., Joan E. Smiley, Asst. Director, Washington, D.C., on brief), for respondent.

(Arthur C. Helton, Laura B. Sherman, New York City, on brief) for amicus curiae Lawyers Committee for Human Rights Americas Watch.

(Steven G. Reade, Hadrian R. Katz, Andrew W. Shoyer, Darina C. McKelvie, Gwyn Firth Murray, Arnold & Porter; Monica C. Yriart, Washington, D.C., on brief), for amicus curiae Cent. American Refugee Center.

Before WINTER, Chief Judge, and MURNAGHAN and SPROUSE, Circuit Judges.

HARRISON L. WINTER, Chief Judge:

This is a petition for review of a final order of deportation issued by the Board of Immigration Appeals on December 28, 1987, denying the petitioner's motion to reopen deportation proceedings to allow a hearing on his request for political asylum in the United States. We reverse the order denying reopening, and we remand the case for a determination on the merits of whether petitioner should be eligible to be granted political asylum.

I.

Petitioner, M.A., is a native and citizen of El Salvador. He entered the United States in February, 1982 at or near Brownsville, Texas, without inspection. The Immigration and Naturalization Service (INS) initiated deportation proceedings against him on February 22, 1984. At a hearing July 16, 1984, M.A., on the advice of his former counsel, declined to request political asylum in the United States. However, he requested and was granted voluntary departure until September 16, 1984 as his sole relief from deportation. He did not leave by that date, and the order ripened into an order of deportation. He was apprehended and detained by INS on January 15, 1985.

A motion to reopen his case was filed by new counsel on Monday, January 21, along with a request for political asylum drafted while M.A. was held by INS in the Baltimore City Jail. A motion for a stay of deportation was also filed, as deportation was scheduled for the following day. The motion to reopen claimed ineffective assistance of M.A.'s former counsel as the reasonable explanation required for not presenting the asylum application before the close of deportation proceedings. See 8 C.F.R. Sec. 208.11. M.A. requested 10 days to augment his asylum claim, but the Immigration Judge denied the motion to reopen the following day, and the Board affirmed.

M.A. appealed to us and we reversed and remanded, holding that (1) a reasonable explanation had been shown for not requesting asylum before the close of the deportation hearing, and (2) the Immigration Judge had abused his discretion in not granting the 10-day continuance under the circumstances in order to allow M.A. and his counsel an adequate opportunity to present a prima facie asylum claim prior to his deportation. See Alvarez v. INS, No. 85-1221 (4 Cir. January 24, 1986) (unpublished).

On remand, M.A. presented a renewed application for political asylum and supporting evidence. The only issue before the immigration judge was whether M.A. had presented a prima facie case for political asylum so as to warrant reopening his deportation proceedings to prove his eligibility therefor. The Immigration Judge found that he had not. M.A. appealed, and the Board affirmed. The Board also denied M.A.'s claim of a right under the Geneva Conventions not to be deported to a country at war. This petition for review contests the correctness of both of these rulings.

II.

In order to appraise properly the legal sufficiency of M.A.'s allegations and proffered proofs to justify reopening the deportation proceedings to permit him to request political asylum, we consider first the law applicable to such a request.

Eligibility for political asylum is governed by the Refugee Act of 1980, Pub.L. 96-212, 94 Stat. 102 (1980), which amended Section 208(a) of the Immigration and Nationality Act of 1952 to read as follows:

The Attorney General shall establish a procedure for an alien physically present in the United States or at a land border or port of entry, irrespective of such alien's status, to apply for asylum, and the alien may be granted asylum in the discretion of the Attorney General if the Attorney General determines that such alien is a refugee within the meaning of section 1101(a)(42)(A) of this title.

Codified at 8 U.S.C. Sec. 1158(a).

Eligibility under Sec. 208 therefore depends upon whether the alien is a "refugee", as defined in 8 U.S.C. Sec. 1101(a)(42)(A). So far as is pertinent here, that definition is:

The term "refugee" means (A) any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion....

Thus, an alien who is able to establish that he suffers "persecution or a well-founded fear of persecution" is considered a refugee, and may, at the discretion of the Attorney General, be granted asylum in the United States. Sec. 208(a).

III.

In developing a definition of "a well-founded fear" we look both to the precedents of other circuits, although scarce, and to the United Nations protocol on refugees. See INS v. Cardoza-Fonseca, 480 U.S. 421, 450-52, 107 S.Ct. 1207, 1222-23, 94 L.Ed.2d 434, 459-60 (Blackmun, J. concurring). In Cardoza-Fonseca, although the majority of the Supreme Court declined to establish a precise definition of "well-founded fear", it held that proof of a well-founded fear of persecution does not require the asylum-seeker to show "by objective evidence that it is more likely than not that he or she will be subject to persecution upon deportation," the standard which an alien must meet in order to receive withholding of deportation under Sec. 243(h) (8 U.S.C. Sec. 1253(h)). Id. at 429, 107 S.Ct. at 1212, 94 L.Ed.2d 447 (footnote omitted). In INS v. Stevic, 467 U.S. 407, 424-25, 104 S.Ct. 2489, 2498, 81 L.Ed.2d 321 (1984), the Court offered the following formulation as guidance in defining a well-founded fear: "So long as an objective situation is established by the evidence, it need not be shown that the situation will probably result in persecution, but it is enough that persecution is a reasonable possibility." The question thus unanswered by Cardoza-Fonseca is what proportion of objective and subjective evidence is necessary to support a well-founded fear, and specifically how much objective evidence must be adduced to render the subjective fear "well-founded."

The Fifth Circuit has held that "[a]n alien possesses a well-founded fear of persecution if a reasonable person in her circumstances would fear persecution if she were to be returned to her native country." Guevara Flores v. INS, 786 F.2d 1242, 1249 (5 Cir.1986). The Seventh Circuit has also articulated a standard applicable to requests for asylum, and requires that the petitioner present specific facts establishing that he or she has actually been the victim of persecution or has some other good reason to fear that he or she will be singled out for persecution....

Carvajal-Munoz v. INS, 743 F.2d 562, 574 (7 Cir.1984) (emphasis in original), relied on by Guevara Flores, 786 F.2d at 1249; Cardoza-Fonseca v. INS, 767 F.2d 1448, 1453 (9 Cir.1985), aff'd 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). Frequently however, corroborative (or "objective") evidence of specific facts that an individual seeking political asylum will be singled out for persecution is unavailable, and, we think, unnecessary. ¹ Although there may be instances in which an individual's political or other activity protected under the Refugee Act forms the basis of a well-founded fear of persecution, the language of the statute clearly envisions that a well-founded fear "may be based upon group characteristics such as the petitioner's religion." Dolores v. INS, 772 F.2d 223, 226 (6 Cir.1985).

We interpret the petitioner's burden to produce specific, objective evidence of a "good reason" to fear persecution, not to require evidence that demonstrates that the petitioner has individually been threatened by the authorities. Rather, the petitioner ought to be able to adduce objective evidence that members of his group, which includes those with the same political beliefs of the petitioner, are routinely subject to persecution. ² See Cardoza-Fonseca, 480 U.S. at 429, 107 S.Ct. at 1212, 94 L.Ed.2d at 447 (one in 10 certainty of a member of one's group being persecuted provides basis for a well-founded fear). Cf. Yousif v. INS, 794 F.2d 236, 242-43 (6 Cir.1986) (petitioner failed to support contention that Christians or Chaldeans as a group are being persecuted).

As will appear, M.A.'s petition presents a special problem because his claim of fear of persecution is based largely on his status as a draft evader. His petition thus raises the further question of when a nation's enforcement of its laws against evasion of military service is unjustified, and thus constitutes persecution, and when the draft evader may lawfully refuse to serve because the military commits acts condemned by the international community.

The United Nations High Commissioner for Refugees (UNHCR), Handbook on Procedures and Criteria for Determining Refugee Status paragraphs 170-71 (Geneva 1979) [hereinafter Handbook...