Matter of Villalta
| Decision Date | 14 February 1990 |
| Docket Number | Interim Decision Number 3126,A-27652767. |
| Parties | MATTER OF VILLALTA. In Deportation Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
This is an appeal from a decision, dated April 22, 1987, in which the immigration judge found the respondent deportable on his own admissions, denied his requests for relief pursuant to sections 208(a) and 243(h) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158(a) and 1253(h) (1982), and ordered him deported to El Salvador. The respondent's appeal will be sustained.1
The respondent is a 25-year-old native and citizen of El Salvador. He entered the United States without inspection on November 15, 1985. On the same day, the Immigration and Naturalization Service issued an Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form I-221S) against the respondent, charging him with deportability pursuant to section 241(a)(2) of the Act, 8 U.S.C. § 1251(a)(2) (1982), due to his unlawful entry. In a written motion, the respondent conceded that he was deportable as charged, and he requested that the venue in his case be transferred from Harlingen, Texas, to New York City. An immigration judge granted the respondent's venue request on March 11, 1986.
The respondent subsequently completed a Request for Asylum in the United States (Form I-589) to which he attached a detailed statement concerning his fear of persecution in El Salvador. He stated in his application that his family had been targeted for persecution by the Salvadoran Army and by paramilitary "Death Squads" operating in El Salvador because of his activities, and those of his family members, in the late 1970's and early 1980's. The respondent explained that after a "Death Squad" had painted three cryptic messages on the door of his family's home between October and December 1979, and after his brother was murdered in 1980, his family members dispersed throughout El Salvador. Maintaining that he had no other means of protecting himself, the respondent indicated that he eventually joined a guerrilla group in the canton of San Vicente. The respondent also submitted an Amnesty International report regarding human rights conditions in El Salvador, as well as newspaper articles concerning the Salvadoran Government and military, in support of his asylum request.
The respondent's written application for asylum was referred to the Department of State Bureau of Human Rights and Humanitarian Affairs ("BHRHA") for an advisory opinion. See 8 C.F.R. § 208.10(b) (1989). The BHRHA concluded that the respondent had "failed to establish a well-founded fear of persecution in El Salvador."
The respondent appeared for the hearing on the merits of his asylum request on January 23, 1987. The hearing was continued once due to the duration of the respondent's testimony, and a second time to give the respondent an opportunity to obtain corroborative evidence from El Salvador. At the conclusion of the final hearing, the immigration judge entered his oral decision denying the respondent's requests for asylum and withholding of deportation. This appeal followed.
Section 208(a) of the Act provides the Attorney General with the discretion to grant asylum to any alien who qualifies as a "refugee" within the meaning of section 101(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A) (1982). In pertinent part, that section defines a "refugee" as a person who is unable or unwilling to return to his native 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." In Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987), we held that an alien demonstrates eligibility for asylum by proving that "a reasonable person in his circumstances would fear persecution." See also INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); Carcamo-Flores v. INS, 805 F.2d 60 (2d Cir.1986). According to the terms of section 243(h)(1) of the Act, the Attorney General must withhold the deportation of an alien who demonstrates a "clear probability of persecution" in a designated country on account of his "race, religion, nationality, membership in a particular social group, or political opinion." INS v. Stevic, 467 U.S. 407 (1984).
The respondent presented the following testimony in his written asylum request and in the hearing on the merits of his asylum application. He stated that he was born and raised in San Vicente, El Salvador. He lived there with his parents, two sisters, and five brothers. The respondent stated that he attended school for 7 years in El Salvador, until he reached the age of 15. He stated further that in 1979, the final year of his education, he became involved in a secondary student organization known as MERS. The respondent joined MERS while he was attending the Instituto Servelio Nabarrete in San Vicente.
The respondent testified that he printed leaflets and participated in demonstrations as a member of MERS. He added that his sister, Sylvia, who was studying in San Salvador, also joined MERS in 1979. The respondent stated that he and Sylvia attended demonstrations together at which students protested about educational conditions in El Salvador. He also stated that some of these demonstrations were violently dispersed by soldiers of the Salvadoran Army.
The respondent testified further that his father raised corn and other vegetables on the land that he owned in San Vicente. In 1978, the respondent's father initiated a cooperative venture for raising crops with other farmers in the surrounding area. The respondent stated that his father and the farmers associated with him were viewed with suspicion by the local government officials because they had refused to participate in the Government's agrarian reform program and had started their own cooperative instead.
The respondent testified that his family began to receive threats from a "Death Squad" in late 1979. He testified that he believed his family received the death threats because of his and his sister's involvement in MERS. The respondent stated that the first such threat occurred in October 1979, when a white hand was painted on the door of his family's home, and the initials "E.M." (Escuadron de la Muerte) were marked beneath the hand. The respondent indicated that he and his family members understood the painted hand to mean that they had been singled out for death and destruction by paramilitary forces. One month later, according to the respondent, a white hand was again painted on the door of his family's house, and ashes were left on the doorstep. The respondent stated that the ashes were another symbol that the "Death Squads" employed to warn the occupants of a house that they would be killed. In December 1979, the respondent's family received the final threat from the "Death Squad"; the respondent said that the last warning consisted of the white hand on the door, ashes on the doorstep, and an accompanying note which read: "Do you want to live longer?"
The respondent went on to testify that he moved to Cabanas, the canton neighboring San Vicente, to live with friends after his family had received this series of threats in 1979. He stated that the first attack against one of his family members occurred in October 1980, when his brother, Alejandro, was killed. The respondent stated that Alejandro was studying at the University of El Salvador in San Salvador. He stated further that Alejandro was abducted at the university by members of a "Death Squad," that he was subsequently tortured, and that his body was found in a garbage dump. The respondent testified that after he learned of Alejandro's death, he went to a church in San Salvador with his brother, Marcos, so that they could view Alejandro's body prior to burial. The respondent stated that he saw scars and wounds on Alejandro's body.
The respondent testified that a few weeks after Alejandro's death, his family members met to discuss what measures they could take to insure their safety. He stated that several of his brothers and sisters decided to move to various regions throughout El Salvador. His father remained on the farm in San Vicente, and his mother moved to the canton of Sonsonate. The respondent and his brothers, Marcos and Miguel, chose to join the guerrillas; his twin brother, Sabino, later joined the guerrillas in 1981. The respondent insisted that he had joined the guerrillas because "there was no other alternative."
In April 1981, while the respondent was staying at guerrilla camps in the mountainous areas within San Vicente, he learned of his mother's death. The respondent stated that his mother had been visiting relatives in Tecoluca during Holy Week, when "Death Squad" members came through that town. The respondent surmised...
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