Mejia-Paiz v. I.N.S.

• Decision Date: 21 June 1996
• Docket Number: MEJIA-PAI,No. 95-70174,P,95-70174
• Parties: 47 Fed. R. Evid. Serv. 8, 97 Cal. Daily Op. Serv. 2815, 97 Daily Journal D.A.R. 4956 Leonel Antonioetitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee. . Submitted *
• Court: U.S. Court of Appeals — Ninth Circuit

Page 720

111 F.3d 720

47 Fed. R. Evid. Serv. 8, 97 Cal. Daily Op.

Serv. 2815,

97 Daily Journal D.A.R. 4956

Leonel Antonio MEJIA-PAIZ, Petitioner-Appellant, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent-Appellee.

No. 95-70174.

United States Court of Appeals Ninth Circuit.

Submitted ^* June 21, 1996.

Decided April 17, 1997.

Xavier J. Vega, Los Angeles, California, for petitioner-appellant.

John L. Davis, Office of Immigration Litigation, United States Department of Justice, Washington, D.C., for respondent-appellee.

Petition to Review a Decision of the Immigration and Naturalization Service. I&NS No. A27 250 753.

Before: CHOY, SNEED, and FERGUSON, Circuit Judges.

Opinion by Judge SNEED; Dissent by Judge FERGUSON.

SNEED, Circuit Judge:

Leonel Antonio Mejia-Paiz petitions this court for review of the Immigration and Naturalization Service's (INS) denial of his application for political asylum and withholding of deportation. Because substantial evidence supports the decisions of the immigration judge ("IJ") and the Board of Immigration Appeals ("BIA"), we deny his petition.

I. FACTS AND PROCEEDINGS BELOW

Petitioner, a citizen and native of Nicaragua, entered the United States without inspection in April 1985. He was detained shortly thereafter by immigration officials and was ordered by the INS to show cause why he should not be deported. In January 1990, petitioner appeared before the immigration judge, conceded deportability and requested political asylum. He fears upon returning to Nicaragua that he will encounter renewed persecution due to his affiliation with the Jehovah's Witnesses Church. According to petitioner, the Sandinistas believe that the Jehovah's Witnesses Church is linked to the CIA.

Petitioner's alleged problems began in 1979 when the Sandinistas gained control of Nicaragua's government. He claims that the Sandinistas caused him to resign from his job, cancelled his food-ration card, forced him to attend and participate in political rallies, threatened him with death, and beat him on at least two occasions. At his deportation hearing, petitioner said that because he was a Jehovah's Witness, the Sandinistas considered him a "contra-revolutionary."

In support of his testimony, Petitioner introduced into evidence an affidavit from his brother attesting to petitioner's membership The IJ denied petitioner's request for asylum and withholding of deportation and granted him voluntary departure. The IJ questioned the sincerity of the petitioner's assertion that he was a Jehovah's Witness, and a fortiori rejected his claims of past persecution. Likewise, the IJ determined that petitioner did not have a well-founded fear of persecution upon return to Nicaragua. Assuming, arguendo, that petitioner established past persecution, the IJ considered the Sandinistas' defeat in 1990 to constitute a "change of circumstances" sufficient to defeat petitioner's request.

with the Jehovah's Witnesses. He also introduced newspaper articles which discussed, in general terms, the continuing political instability in Nicaragua. The IJ admitted a letter from the U.S. Department of State which stated in part: "the applicant has not established a well-founded fear of persecution upon return to Nicaragua ... Sandinista government-sponsored persecution of religious persons, including Jehovah's Witnesses ... has of course ceased, and we have no reports of mistreatment since the Chamorro government took office."

The Board of Immigration Appeals accepted the IJ's findings and dismissed the petitioner's appeal. He then filed this petition for review.

II. DISCUSSION

A. Standard of Review

The denial of asylum is reviewed for abuse of discretion. Kazlauskas v. INS, 46 F.3d 902, 905 (9th Cir.1995). "The factual findings underlying the decision are reviewed for substantial evidence, and the IJ's determination should not be reversed absent compelling evidence of persecution." Id. The Board's findings of fact are conclusive and must be upheld "if supported by reasonable, substantial, and probative evidence on the record considered as a whole." 8 U.S.C. § 1105a(a)(4). The decision to withhold deportation is also reviewed for substantial evidence. Kazlauskas, 46 F.3d at 907.

B. Substantial Evidence

This case presents a problem inherent in many, if not all, cases where an alien seeks to avoid deportation: the inescapable inability of the INS to demonstrate that the petitioner's recital of past persecution is false. The events are distant and an investigation to determine truth is impracticable. As a consequence, the petitioner bears the burden of persuading the IJ that his evidence is credible, Saballo-Cortez v. INS, 761 F.2d 1259, 1262 (9th Cir.1985), and the IJ is entitled to evaluate assertions of past persecution in light of the strength or weakness of such other evidence as the petitioner may present. ¹

Petitioner contends, to the contrary, that the absence of evidence contradicting his assertions should lead to a grant of asylum, noting that "the government did not show any lack of credibility." In support of his argument, petitioner relies on this court's decision in McMullen v. INS, 658 F.2d 1312 (9th Cir.1981). Specifically, petitioner calls to our attention the following passage in McMullen: "The INS did not submit evidence of its own which indicated that any of McMullen's exhibits were inaccurate, nor did it submit independent evidence showing McMullen's lack of credibility." Id. at 1317. However, we have since limited the reach of this statement to the facts presented in McMullen. See Saballo-Cortez, 761 F.2d at 1265 (holding that McMullen does not compel a grant of asylum whenever the petitioner's testimony is not contradicted by evidence presented by the INS).

As we have previously made clear, petitioner's position would effectively shift the burden from the alien to the INS. Id. at

1265, n. 4. "This misconceives the deference due under the substantial evidence test," and would create "a presumption of reversal unless the INS comes forth with the substantial evidence to disprove an alien's uncorroborated testimony." Id. Rather, the proper application of the substantial evidence test requires reversal only where the IJ's conclusion lacks substantial reasonableness. See id.

C. Application of the Substantial Evidence Standard

Here petitioner failed to persuade the IJ that he was a credible witness. After considering all the evidence, the IJ stated: "The court questions the sincerity of the respondent's claim to religion and membership in the Jehovah's Witness." Because petitioner's status as a Jehovah's Witness was integral to his claims of past persecution, the IJ concluded that petitioner had failed to meet his burden of establishing a ground on which asylum could be granted. We must determine whether the IJ's finding was "substantially supported by the evidence in the record." Saballo-Cortez, 761 F.2d at 1262; Vilorio-Lopez v. INS, 852 F.2d 1137, 1141 (9th Cir.1988) ("This court reviews credibility findings for substantial evidence.").

1. Well-Founded Fear of Persecution

To be eligible for asylum, an applicant must establish "either past persecution or a well-founded fear of present persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Berroteran-Melendez v. INS, 955 F.2d 1251, 1255 (9th Cir.1992); 8 U.S.C. § 101(a)(42). The burden is on the applicant to establish eligibility. Acewicz v. INS, 984 F.2d 1056, 1061 (9th Cir.1993).

To establish a well-founded fear of persecution, an applicant for asylum must demonstrate both a subjective and an objective fear of persecution. Acewicz, 984 F.2d at 1061. The applicant must show both a "genuine" subjective fear and a "reasonable possibility" of persecution. Berroteran-Melendez, 955 F.2d at 1256. "An applicant's candid, credible and sincere testimony demonstrating a genuine fear of persecution satisfies the subjective component of the well-founded fear standard." Id. (internal quotations omitted). "The objective component requires a showing by 'credible, direct, and specific evidence' of facts supporting a reasonable fear of persecution." Acewicz, 984 F.2d at 1061 (quoting Rodriguez-Rivera v. U.S. Dept. of Imm. and Nat., 848 F.2d 998, 1002 (9th Cir.1988) (per curiam)).

To repeat, petitioner's application focuses primarily on his affiliation with the Jehovah's Witnesses, a religion targeted by the Sandinistas for being counterrevolutionary. Petitioner also attributes his problems with the Sandinistas to his relationship with his brother, Mauricio Mejia-Paiz, an outspoken opponent of the Sandinista government.

Petitioner asserts that he lost his job at a bank on account of his religious beliefs, and because he resisted pressure to join a Sandinista-supported employee's union. Petitioner also alleges that he was physically abused by the Sandinistas. Once, when he tried to secure his brother's release from prison in 1984, he was insulted, beaten, and threatened with death. And again, following a "Contra"-military offensive in 1985, he and other persons from his neighborhood were taken from their homes to a public plaza, forced to participate in a pro-Sandinista rally, and physically beaten when they refused. Petitioner decided to leave Nicaragua in 1985.

2. The IJ's Credibility Finding

First, the IJ found that petitioner could have offered proof that he was a member of the Jehovah's Witnesses but did not. The IJ reasoned that establishing membership through either a local or foreign church would have been a relatively uncomplicated task. We agree. In fact, the petitioner himself claimed in his application for asylum that many of his problems were due to the fact that there was proof of his membership "in the files of the Jehovah's Witnesses Church," presumably in Nicaragua. Petitioner cannot have it both ways. Proving one's membership in a church does not pose the type of particularized...