Marquez v. I.N.S., 96-1249

• Decision Date: 16 April 1997
• Docket Number: No. 96-1249,96-1249
• Citation: 105 F.3d 374
• Parties: Arsenio MARQUEZ and Victoria Marquez, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 374

105 F.3d 374

Arsenio MARQUEZ and Victoria Marquez, Petitioners, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 96-1249.

United States Court of Appeals, Seventh Circuit.

Argued Sept. 5, 1996.

Decided Jan. 28, 1997.

Rehearing Denied April 16, 1997.

Y. Judd Azulay, Stephen D. Berman (argued), Azulay & Azulay, Chicago, IL, for petitioners.

Samuel Der-Yeghiayan, I.N.S., Chicago, IL, David M. McConnell, Stephen W. Funk, Marion E. Guyton, James A. Hunolt (argued), Department of Justice, Civil Div., Immigration Litigation, Karen Fletcher Torstenson, United States Department of Justice, Washington, DC, for respondent.

Before CUDAHY, MANION, and ROVNER, Circuit Judges.

CUDAHY, Circuit Judge.

Petitioners Arsenio and Victoria Marquez, husband and wife and citizens of the Philippines, left their home country in 1990 and entered the United States as visitors for pleasure. In response to the Immigration and Naturalization Service's (INS) 1993 attempt to deport them for staying longer than permitted, Mr. and Mrs. Marquez say that they qualify for political asylum or withholding of deportation. The INS says they do not. Petitioners have not undergone genuine persecution, the INS contends, nor do they have a well-founded fear of such; and even if petitioners had been persecuted or had a well-founded fear that they would be, they failed to draw the essential nexus between persecution and political opinion. The INS further argues that Mr. and Mrs. Marquez fall short of qualifying for withholding of deportation. An Immigration Judge and the Board of Immigration Appeals (BIA) agreed. We affirm.

I. Procedural posture and statutory framework

On July 29, 1993, the Immigration and Naturalization Service charged petitioners with remaining in the United States longer than permitted under § 241(a)(1)(B) of the Immigration and Nationality Act (the Act), 95 Stat. 1616, as amended, and sought to have them deported. Mr. and Mrs. Marquez conceded their deportability but (1) applied for political asylum and (2) requested withholding of deportation. An Immigration Judge denied the request and issued a deportation order. Mr. and Mrs. Marquez appealed. The BIA affirmed in a final order dated January 4, 1996. Petitioners filed timely for appeal before this court under § 106(a) of the Act, 8 U.S.C. § 1105a.

Petitioners must convince this court that the BIA decided either of the following two questions wrongly. The BIA said no to both; petitioners urge that the right answers are yes.

First, are Mr. and Mrs. Marquez eligible for political asylum? Because they are now on U.S. soil, the governing provision is § 208(a) of the Act, 8 U.S.C. § 1158(a). An alien "physically present in the United States ... may be granted asylum in the discretion of the Attorney General if the Attorney General determines that such alien is a refugee." Id. Whether Mr. and Mrs. Marquez might qualify for asylum therefore depends as a threshold issue on whether they are refugees. For this, we must look at the definition of refugee in 8 U.S.C. § 1101(a)(42)(A). The first part of the definition Mr. and Mrs. Marquez easily satisfy: they are "outside any country of such person's nationality," in this case outside the Philippines. As for most asylants, their case turns on the remaining portion of that definition. Mr. and Mrs. Marquez must be "unable or unwilling to return to ... 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." Id.

Second, are Mr. and Mrs. Marquez entitled to withholding of deportation? This ungainly phrase embodies a precept of international law: the principle of no forced return, or non-refoulement. ¹ States must not forcibly send aliens to a country where their lives or freedom will be endangered, if that danger arises from a threat to a protected human right. Hence, "[t]he Attorney General shall not deport or return any alien ... to a country if [she] determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion." § 243(h) of the Act, 8 U.S.C. § 1253(h). Unlike the asylum provision, this provision bestows no discretion on the Attorney General. And unlike the asylum provision, withholding of deportation only restrains the Attorney General from deporting or returning the alien to a particular country. INS v. Cardoza-Fonseca, 480 U.S. 421, 429 n. 6, 107 S.Ct. 1207, 1212 n. 6, 94 L.Ed.2d 434 (1987). For Mr. and Mrs. Marquez, this country would be the Philippines.

For either question, the burden of proof falls on Mr. and Mrs. Marquez to prove that the answer is yes. 8 C.F.R. § 208.13(a) (asylum); § 208.16(b) (withholding of deportation). With this statutory framework in mind, we turn to the facts as the Immigration Judge and the BIA retell them.

II. Mr. and Mrs. Marquez's story

Mr. and Mrs. Marquez owned and operated a good-sized commercial fishing boat in the Philippines with a crew of forty. When they bought the boat in 1981, they used it to secure their loan from the Rural Bank of Palompon. Along with quarterly repayments on the loan, the bank also expected a "representation fee," which it allegedly used to bribe its auditors. Mr. and Mrs. Marquez counted these payments against the debt owed. In 1986 they calculated that they had paid their debt in full, so they stopped sending the bank money. The bank kept a different set of ledger books, however. The bank's accounting, it seems, did not include these "representation fees." Claiming that Mr. and Mrs. Marquez had ceased payment on their debt, the bank had the sheriff repossess the boat. Mrs. Marquez asserts that the bank's president, Ms. Erlinda Chiong, ordered the repossession because she coveted the financially successful boat for herself. On this telling, Ms. Chiong suborned the local sheriff into seizing the boat illegally. The Marquezes brought a civil suit against the bank. Removed to Manila, the suit ended two years later in a judicial instruction for the litigants to settle the affair amicably. An amicable settlement meant a loss for Mr. and Mrs. Marquez. The bank kept the boat.

The boat story sets the scene for the real tensions between Mr. and Mrs. Marquez and the local powers-that-be. In 1986, Arsenio went on a radio talk show and denounced the seizure of his boat as well as the prevailing corruption in the Philippines. While on the radio, Arsenio fingered the Rural Bank, Ms. Chiong and a Lt. Col. Garcia as prime offenders. The radio station re-broadcast the interview several times and allegedly reached a wide audience.

Arsenio's radio appearance precipitated a spate of harassment. First, in December 1987, at least a year after the radio broadcasts, Lt. Col. Garcia disrupted a Christmas party at the Marquez home. With the help of a gang of militiamen-cum-thugs, Garcia intimidated Arsenio and his guests with guns. A soldier fired a shot into the ceiling. Arsenio testified that Garcia hit him with a pistol butt and then told the bleeding Arsenio that he had better stop voicing his opinion on the radio or he and his family would be harmed.

Arsenio then began a series of trips between the United States and the Philippines. He first came to the United States in May 1988, some five months after the Christmas affair. Because he missed Victoria and his children, Arsenio testified, he returned in February 1989 to the Philippines after eight months in the United States. This time he stayed in the Philippines only for two months, and allegedly remained in hiding with friends and relatives for the entire time. In April 1989 he came to the United States for the penultimate time, only to return once again to the Philippines in July 1989. This time he stayed there for a year, until he came to the United States permanently in July 1990. All told between May 1988 and July 1990, he made two round-trip journeys across the Pacific before settling finally in America. And of those twenty-six months, Arsenio spent eleven in the United States and fifteen in the Philippines.

Meanwhile, Victoria stayed behind in the Philippines, where she had her own alleged run-ins with Garcia and his minions. In 1988, Garcia came to her office at the Palompon Institute of Technology, where she worked as a management analyst. He accused her of holding "teach-ins" on communist ideology in her home. Stop, he warned her, or else she and her children would be killed. Victoria asserts that she never held any such teach-ins. At another time, an intruder attempted to enter the house while she was alone with her children. Victoria scared the intruder off by firing a gun into the air. Later, someone uprooted her artesian well and left a note on her door stating that if she continued to report incidents of military abuses, she and her children would be killed. In November 1990, Victoria resigned her job, left her children with relatives and fled the Philippines for the United States.

III. Petitioners' eligibility for asylum

To prove that they are "refugees" and thus eligible for asylum, Mr. and Mrs. Marquez must make two showings. First, they must demonstrate either actual past persecution or a well-founded fear of persecution in the future. Second, assuming that they can satisfy this first showing, petitioners must also show that the persecution they have endured is "on account of" one of the five protected statutory grounds. ² Mr. and Mrs. Marquez invoke only the fifth and most common ground, political opinion.

Affirming the Immigration Judge, the BIA held that petitioners had failed on both counts. We review the BIA's factual determinations for a basis in "reasonable, substantial, and probative evidence," 8 U.S.C. § 1105a(a)(4), not unlike the test we employ in assessing federal district courts' factual findings. "To obtain judicial reversal," Mr. and...