Matter of Chicas, Interim Decision Number 2970
| Decision Date | 29 June 1984 |
| Docket Number | A-20944784.,Interim Decision Number 2970 |
| Citation | 19 I&N Dec. 114 |
| Parties | MATTER OF CHICAS. In Deportation Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
The respondent appeals from a decision of an immigration judge dated March 20, 1984, finding him deportable under section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. § 1251(a)(2) (1982), for entry into the United States without inspection. The immigration judge also denied the respondent's applications for asylum and withholding of deportation under sections 208 and 243(h) of the Act, 8 U.S.C. §§ 1158 and 1253(h) (1982). The appeal will be dismissed.
On appeal, the respondent has requested a waiver of the filing fee pursuant to 8 C.F.R. § 3.3(b) (1984). Counsel for the Immigration and Naturalization Service has objected to the "Affidavit to Prosecute Appeal in Forma Pauperis" filed by the respondent, arguing that it is not properly executed. See Matter of Alejandro, 19 I&N Dec. 75 (BIA 1984). Rather than submitting a sworn affidavit, the respondent filed an unsworn declaration which states that it is executed in accordance with the requirements of 28 U.S.C. § 1746 (1982). The declaration, which was signed by the respondent, reads: One who subscribes to a statement pursuant to the cited section is subject to the perjury penalties of 18 U.S.C. § 1621 (1982). We find that an unsworn statement personally executed by an alien that is in conformity with the requirements of 28 U.S.C. § 1746 (1982) is in compliance with the affidavit requirement of 8 C.F.R. § 3.3 (1984). Accordingly, we supplement our ruling in Matter of Alejandro, supra, to provide that a Notice of Appeal (Form I-290A) accompanied by a declaration made in accordance with 28 U.S.C. § 1746 (1982) will be accepted as properly filed, if it otherwise comports with the requirements of 8 C.F.R. § 3.3 (1982). As the declaration in the present case meets those requirements, we find that it is properly filed and we authorize the prosecution of this appeal without fee.
The respondent is a 33-year-old male native and citizen of El Salvador. At the deportation hearing held on February 6, February 9, and March 20, 1984, the respondent conceded deportability under section 241(a)(2) for entry without inspection. We find that deportability has been established by clear, unequivocal, and convincing evidence as required by Woodby v. INS, 385 U.S. 276 (1966), and 8 C.F.R. § 242.14(a) (1984). The only issue on appeal is the denial of the respondent's applications for withholding of deportation and asylum.
In order to qualify for withholding of deportation the alien must show that his life or freedom would be threatened in the country of deportation on account of his race, religion, nationality, membership in a particular social group, or political opinion. Section 243(h)(1) of the Act.
In order to qualify for asylum under the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102, an applicant must establish that he is a "refugee" within the meaning of section 101(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A) (1982). That section defines a refugee as
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.
The respondent bears the burden of proof in asylum or section 243(h) relief applications to establish by objective evidence either that he has a well-founded fear of persecution or that his life or freedom will be threatened on account of one of the five grounds of persecution enumerated in the above section 101(a)(42)(A) and in section 243(h)(1). See 8 C.F.R. § 208.5 (1984); INS v. Stevic, 467 U.S. 407 (1984); Haitian Refugee Center v. Smith, 676 F.2d 1023 (5th Cir. 1982); Fleurinor v. INS, 585 F.2d 129 (5th Cir. 1978); Matter of Exilus, 18 I&N Dec. 276 (BIA 1982).
The respondent submitted in support of his application a copy of an Amnesty International Report for 1982, a copy of "Critique: Review of the Department of State's Country Reports on Human Rights Practices for 1982" by Americas Watch, several newspaper reports for 1982-83 concerning the violence in El Salvador, and part of a report called "Salvadorans in the United States" by the National Immigration and Alien Rights Project, including Appendix III.
The respondent testified that his only relatives in El Salvador are a half-sister and a great aunt. He was brought up by a National Guard officer who befriended him. From 1963 to 1970 he lived in and around the offices of the National Guard. In 1969 he joined the National Guard for a year.
The respondent has admitted to a series of illegal entries into the United States in search of work. As best the respondent could remember, he first entered the United States in September 1972; he remained for about 10 months before he was discovered by the Service and granted administrative voluntary departure. He reentered in 1973 and remained for about 10 months. He left again under administrative voluntary departure. The respondent came back into the United States in 1975 but voluntarily visited Mexico for 3 months before returning to the United States at the end of 1976. He returned on his own to El Salvador with the money he had saved by working in the United States in July 1982, but he had no identification papers. For several weeks, he attempted without success to obtain proper identification. In August 1982, he went to his hometown to obtain a birth certificate. This village is reportedly in a disputed area partially controlled at times by the guerrillas. He was able to locate his birth certificate, but he was noticed and stopped by the local civil defense. The respondent was not able to identify himself satisfactorily to the guards because the National Guardsman he claimed to know refused to identify the respondent by name when contacted by his captors. He alleges he was turned over to the army and imprisoned and interrogated for 8 days. The respondent claims that he was beaten and threatened with death during this time. Finally, the soldiers checked with the airport in San Salvador and discovered that the respondent had indeed recently arrived from the United States as he claimed. They then released him.
Shortly thereafter, the respondent traveled to...
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