Melendez v. U.S. Dept. of Justice

• Citation: 926 F.2d 211
• Decision Date: 15 February 1991
• Docket Number: D,No. 34,34
• Parties: Narciso Vallez MELENDEZ, Petitioner, v. U.S. DEPARTMENT OF JUSTICE and Immigration and Naturalization Service, Respondents. ocket 89-4119.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 211

926 F.2d 211

Narciso Vallez MELENDEZ, Petitioner, v. U.S. DEPARTMENT OF JUSTICE and Immigration and Naturalization Service, Respondents.

No. 34, Docket 89-4119.

United States Court of Appeals, Second Circuit.

Argued Aug. 31, 1990.

Decided Feb. 15, 1991.

Richard Mancino, New York City (Lawrence O. Kamin, Wilkie Farr & Gallagher, New York City, of counsel; Anne Pilsbury, Central American Legal Assistance, Brooklyn, N.Y., also of counsel), for petitioner.

Timothy MacFall, Sp. Asst. U.S. Atty., S.D.N.Y. (Otto G. Obermaier, U.S. Atty., Marla Alhadeff, Asst. U.S. Atty., S.D.N.Y., New York City, of counsel), for respondents.

Before FEINBERG and CARDAMONE, Circuit Judges, and RE, Chief Judge ^*.

CARDAMONE, Circuit Judge:

This case concerns petitions by a citizen of El Salvador for asylum and withholding of deportation. Petitioner claims he has suffered repeated persecution in his native country and fears he will be persecuted further if forced to return there.

We are called upon to elaborate on the legal tests governing applications for asylum and withholding of deportation under Secs. 208(a) and 243(h) of the Immigration and Nationality Act of 1952 (Act), 8 U.S.C. Secs. 1158(a), 1253(h), under which petitioner Narciso Vallez Melendez claims he is entitled to relief. We must also decide the proper standard of review for decisions by the United States Immigration and Naturalization Service's (INS) Board of Immigration Appeals (Board of Appeals or Board) denying such relief. Ordinarily, we would then proceed to determine whether the Board's decision in this case withstands scrutiny under that standard of review. In light of a settlement agreement entered into by the government, which we will take up at the end of this opinion, this matter is remanded to the Immigration Service for a new hearing.

FACTS

The following facts were established through petitioner's sworn application and through testimony in hearings before an INS judge. Narciso Vallez Melendez is a 40-year-old Salvadoran national, who in his early 20s worked as a member of "La Uno", a political party organized to secure free and democratic elections in El Salvador. His work during the years 1972-74 consisted of distributing leaflets to the public. The political campaign was successful, as La Uno's candidate for President, Jose Napoleon Duarte, was elected to that office, though he was later deposed by force. The La Uno party is now called the Christian Democratic Party. Under its banner Mr. Duarte later regained the presidency, and until his recent death, he served as president of El Salvador.

For the eight-year period from 1974 to 1982, petitioner alleges he was threatened. Some of his La Uno comrades were jailed, murdered, or disappeared. He testified that the continuous threat from the government security forces forced him to leave his home and family and move from place to place. He also stated he was "hassled" by guerilla forces and accused of being a sympathizer of both sides, though he sought to stay neutral in the conflict. Vallez claims that in July 1979 his brother--also a member of La Uno--was killed by the military because of his political activities and that in August 1981 his common-law wife was murdered by a soldier in the El Salvadoran military.

Two members of religious organizations who had spent time in La Libertad--the area where Vallez resided in El Salvador--testified that around the time his family members were allegedly murdered, the El Salvadoran military and so-called "squadrons de muerte" (death squads) kidnapped and killed numerous individuals throughout the country. The church organizations gave assistance to those being threatened by helping them to get out of the country.

Vallez testified that shortly after his wife's death in 1981 he left El Salvador via Guatemala and Mexico and came for the first time to the United States. Three months later he was arrested and deported by the INS. Upon arrival back in El Salvador in October 1982, he asserts he was detained at the airport by government soldiers, who interrogated and robbed him, and threatened him with imprisonment and death. According to Vallez, the military told him he would be killed if they saw him in the San Salvador airport again. After this incident, he stayed in El Salvador for seven months, and relocated five times to avoid danger. After an "investigator" threatened to kill him he left his home country in May 1983, and returned illegally to the United States, where he sought asylum. Since November 1984, petitioner has resided in Brooklyn, New York. Vallez is the father of two children, one 16 and the other eight years old, both of whom still reside in El Salvador, where he owns a house and an unspecified acreage of land.

THE PROCEEDINGS BELOW

The immigration judge in the administrative proceedings orally denied Vallez' applications for asylum and withholding of deportation. Upon appeal, the Board of Immigration Appeals concluded--without differentiating between facts supporting its findings under Sec. 208(a) and Sec. 243(h)--that The Board found that no details were presented at the hearing or in the sworn application form petitioner completed regarding the deaths of his brother and common-law wife that showed a relation between their deaths and his claims. The Board stated it had "no evidence before it concerning the crucial aspects of why these people were killed." It viewed the actions of the soldiers at the airport on petitioner's return to El Salvador in October 1982 as simply an individual attempt on their part to extort money, not to persecute petitioner for his past political activities.

petitioner had failed to meet his burden under both sections. Because the Board specifically stated it was making a de novo determination on both the law and facts, the specific findings of the immigration judge are not relevant.

The Board stated there was insufficient evidence to support petitioner's assertion he was threatened, noting that he failed to specify the nature of the threats made against him during his years in El Salvador. Although petitioner was allegedly threatened because of his political activities in La Uno from 1972 to 1974, he continued to reside in La Libertad for the following eight years and was never physically injured, despite his claim that he was forced to move at least five times. The Board found that the distribution of political literature in 1972-74 was too remote to place him in danger at the present time. Vallez also failed to identify the "investigator" who threatened him immediately prior to his departure from El Salvador, and explain why the "investigator" threatened him or the nature of the threat.

The Board also discounted the corroborating testimony of two church workers regarding the nature of violence against politically active Salvadorans generally. Both of them were in El Salvador from August until December 1980, and each of them spent a week there in July 1984. Those witnesses' testimony was general in nature and referred to matters of common knowledge, that is, that El Salvador is unfortunately in a state of civil war that has resulted in murder, torture, disappearance and detention of scores of innocent citizens. The Board concluded that the testimony showed only that "most people who belong to an organization receive threats, and that they move around to minimize the danger to themselves. Hence, [petitioner] was certainly not alone in receiving such threats." None of their testimony related to petitioner himself.

Consequently, though the Board stated it did "not have any reason to disbelieve [petitioner's] testimony," it went on to conclude: "there are simply too many important questions left unanswered. As [petitioner] has failed to carry his burden of proof and persuasion in his claim, we find we must dismiss the appeal." We turn now to a discussion of the law respecting asylum and deportation.

DISCUSSION

I The Legal Framework

A. Section 208(a): The "Well-Founded Fear" of Persecution Standard

Section 208(a) of the Act, 8 U.S.C. Sec. 1158(a) (1988), authorizes a grant of asylum to an alien who qualifies as a "refugee", which is defined 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.

8 U.S.C. Sec. 1101(a)(42)(A). Upon a showing of a "well-founded fear of persecution" the Attorney General may, in his discretion, grant asylum pursuant to Sec. 208(a). In this two-step procedure, an alien must first show he faces persecution or has a well-founded fear of persecution, and--having thus established refugee status--second, must seek asylum, which is granted in the discretion of the attorney general. Political asylum--the ultimate relief--is therefore The Supreme Court recently declined to define the precise contours of the well-founded fear standard. See INS v. Cardoza-Fonseca, 480 U.S. 421, 448, 107 S.Ct. 1207, 1221, 94 L.Ed.2d 434 (1987). The Court had previously indicated, without elaboration, that an applicant might attain this status by showing that persecution was a "reasonable possibility." See INS v. Stevic, 467 U.S. 407, 424-25, 104 S.Ct. 2489, 2497-98, 81 L.Ed.2d 321 (1984) (terming this a moderate position). We have held that this standard is satisfied under Sec. 208(a) when an alien establishes that " 'a reasonable person in her circumstances would fear persecution if she were to be returned to her native country.' " Carcamo-Flores, 805 F.2d at 68 (quoting Guevara Flores v. INS, 786 F.2d 1242, 1249 (5th Cir.1986), cert. denied, 480 U.S. 930, 107 S.Ct. 1565, ...