Mabugat v. I.N.S.

• Decision Date: 04 April 1991
• Docket Number: No. 89-70513,89-70513
• Citation: 937 F.2d 426
• Parties: Michael Anthony MABUGAT, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 426

937 F.2d 426

Michael Anthony MABUGAT, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 89-70513.

United States Court of Appeals, Ninth Circuit.

Submitted April 4, 1991. ^*

Decided June 17, 1991.

Gary Silbiger, Silbiger & Honig, Los Angeles, Cal., for petitioner.

Norah Ascoli Schwarz, Office of Immigration Litigation Civil Division, U.S. Dept. of Justice, Washington, D.C., for respondent.

Petition for Review a Decision of the Board of Immigration Appeals.

Before KOZINSKI and O'SCANNLAIN, Circuit Judges, and McNAMEE, ^** District Judge.

O'SCANNLAIN, Circuit Judge:

This immigration case involves a ripple from the upheaval which led to the toppling of the Marcos regime and installation of the Aquino government in the Philippines in 1986.

I

In early 1983, petitioner Michael Mabugat, a Filipino, was employed as a "section manager" for Proctor and Gamble in the Manila metropolitan area. During that politically turbulent time, Mabugat became associated with the Unido Party. The Unido Party stood in opposition to the Marcos regime; its most prominent members are now the ruling leadership of the Philippines. President Corazon Aquino herself is an alumna of an Unido splinter group.

In the summer of 1983, Mabugat became involved in a scheme to divert money from Proctor and Gamble to his political party. Mabugat, at the behest of an officer of Unido, deposited 989,000 pesos (about 32,000-38,000 American dollars) meant for Proctor and Gamble into a bank account bearing Mabugat's name, and then promptly turned the money over to the Unido officer who masterminded the scheme. According to Mabugat's testimony, the officer told Mabugat that the money would be returned to him in three months, so that Mabugat could get the money back to Proctor and Gamble before the company's next scheduled internal audit.

From the nature of the scheme, Mabugat suspected the involvement of several others, including his immediate superior at Proctor and Gamble and the teller, at least, of the bank where Mabugat made the transfer. Most significantly, Mabugat believed that Proctor and Gamble acquiesced to the transfer, because it wanted to help the opposition but could not afford to be caught directly supporting foes of the government.

In any event, the scheme went awry. About one month after the diversion, the Marcos government forcibly closed the bank which was involved in the transfer. Mabugat began to wonder how Unido was going to get the money back into the correct account. He learned that certain bank records had been destroyed in the closure, and that no money had been redeposited in his account from Unido or anyone else. After three months passed, Mabugat sought assistance from a high-ranking official of Unido, but received no aid.

Shortly thereafter, Mabugat was subpoenaed by a Philippine prosecutor to answer charges of "estafa," roughly translated to misappropriation of funds. The charges were instituted by Mabugat's superior at Proctor and Gamble. To Mabugat's knowledge, no one else was charged or even investigated with regard to the plan. Proctor and Gamble officials greeted Mabugat's tale with extreme skepticism, and refused his offer of 150,000 pesos (about $5,000) as a down payment on restitution, with the balance of the missing amount to be paid on a monthly basis.

After speaking with a number of individuals with Unido, Proctor and Gamble, and the bank, Mabugat realized that the outcome of his trial was not likely to be pleasant for him. Mabugat decided to emigrate. He entered the United States on a six-month visitor's visa on March 19, 1985.

Mabugat has remained in this country ever since, working as an industrial engineer and in other capacities. At some point, Mabugat obtained a false birth certificate, which indicates that he was born in Guam. He also told at least one American employer that he was "legal to work." Mabugat and his wife have two children, both American citizens by birthright.

Some two years after Mabugat's arrival in the States, the Immigration and Naturalization Service ("INS") began proceedings to deport Mabugat, who by that time had long overstayed the permissible length of his "visit." Upon his initial apprehension by INS officers, Mabugat presented them with the false birth certificate. Ultimately, Mabugat admitted deportability, and, on December 23, 1988, the immigration judge so found. The immigration judge then denied asylum under 8 U.S.C. Sec. 1158 (section 208 of the Immigration and Nationality Act ("INA")), denied withholding of deportation under 8 U.S.C. Sec. 1253(h) (INA Sec. 243(h)), and denied voluntary departure under 8 U.S.C. Sec. 1254(e) (INA Sec. 244(e)). The immigration judge ordered Mabugat's deportation.

The Board of Immigration Appeals affirmed the immigration judge, dismissing Mabugat's appeal in a decision issued June 2, 1989. Mabugat timely filed a petition for review in this court.

II

Mabugat contends that the Board wrongfully denied asylum and withholding of deportation. An alien is entitled to a withholding of deportation only if he demonstrates a "clear probability of persecution." INS v. Stevic, 467 U.S. 407, 430, 104 S.Ct. 2489, 2501, 81 L.Ed.2d 321 (1984). However, the alien may obtain asylum, in the discretion of the Attorney General, if he meets the lower threshold of harboring a "well-founded fear of persecution." INS v. Cardoza-Fonseca, 480 U.S. 421, 449, 107 S.Ct. 1207, 1222, 94 L.Ed.2d 434 (1987). We review for substantial evidence supporting the administrative determination that the alien has failed to prove even a well-founded fear of persecution. Arriaga-Barrientos v. INS, 925 F.2d 1177, 1179 (9th Cir.1991); Sanchez-Trujillo v. INS, 801 F.2d 1571, 1578 (9th Cir.1986).

The basis for Mabugat's claimed fear of persecution is the pending Philippine criminal prosecution against him for "estafa." A criminal prosecution normally will not be "persecution" absent some improper government motive for pursuing the matter. See Rodriguez-Rivera v. United States Dep't of Immigration & Naturalization, 848 F.2d 998, 1005 (9th Cir.1988) (per curiam); Laipenieks v. INS, 750 F.2d 1427, 1436-37 (9th Cir.1985). Mabugat argues that he has been singled out for prosecution and will not get a fair trial for political reasons.

Substantial evidence supports the Board of Immigration Appeals's decision. As the Board noted, although prosecution was instigated under the Marcos regime, the opposition party for whom Mabugat committed the alleged crime is now the party in power. Further, as the immigration judge pointed out, Mabugat remained in the Philippines for sixteen months after the criminal charges were first filed, and did not request asylum until long after he had arrived in this country (and, not coincidentally, after the INS had taken an interest in his presence here). Although Mabugat suspects that he may be the sacrificial victim in a political cover-up, he presented no evidence other than his own word on that point. In fact, Mabugat testified that he did not know whether the investigation into his apparent crime was active, or whether he was still wanted. We are not persuaded that the Board's decision can be overturned on such flimsy evidence. ¹

III

Under 8 U.S.C. Sec. 1254(e) (INA Sec. 244(e)), a deportable alien may obtain voluntary departure "if such alien shall establish to the satisfaction of the Attorney General that he is, and has been, a person of good moral character for at least five years immediately preceding his application for voluntary departure." The immigration judge found Mabugat to be statutorily ineligible "due to his admission that he took money from his employer without permission and not under duress and coercion." The judge also indicated that she would have denied voluntary departure as a matter of discretion in any event, due to Mabugat's admission of that crime and his use of a fraudulent birth certificate. Citing the same factors, the Board of Immigration Appeals found no error in the immigration judge's actions.

Mabugat challenges the denial of voluntary departure on a number of grounds. He contends that the immigration judge's finding of statutory ineligibility was erroneous, because the theft which Mabugat purportedly committed occurred more than five years before Mabugat's application for voluntary departure. Mabugat also presents a multi-pronged challenge to the discretionary denial of his application, asserting that he did not admit to the specific elements of any crime, that any crime he may have committed was a purely political offense, that use of his admissions violated due process, and that the immigration judge failed properly to balance the equities. ²

A

In examining the certified administrative record, we note that few of these arguments were even indirectly raised before the Board. There is no contention that Mabugat's purported crime occurred more than five years before the application for voluntary departure, or that he had not admitted a crime involving moral turpitude. Mabugat's failure to exhaust his administrative remedies strips this court of jurisdiction to address these issues. Vargas v. United States Dep't of Immigration & Naturalization, 831 F.2d 906, 907-08 (9th Cir.1987).

B

Although Mabugat did not raise his due process argument below, such claims, when not based upon mere procedural mistakes, are not subject to the exhaustion requirement. See Vargas, 831 F.2d at 908. The claim, however, is meritless. The Supreme Court has made clear that a civil deportation proceeding is supposed to be a "streamlined" process in which "various protections that apply in the context of a criminal trial do not apply." INS v. Lopez-Mendoza, 468 U.S. 1032, 1038-39, 104 S.Ct. 3479, 3483-84, 82 L.Ed.2d 778 (1984). We see no reason to declare unconstitutional the statute, 8 U.S.C. Sec. 1101(f)(3), which permits admissions in lieu of convictions for the purposes of determining "good moral character."

C

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