Molina-Morales v. Immigration & Naturalization Serv.

• Decision Date: 19 January 2001
• Docket Number: No. 98-71410,MOLINA-MORALE,P,98-71410
• Citation: 237 F.3d 1048
• Parties: (9th Cir. 2001) CARLOSetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1048

237 F.3d 1048 (9th Cir. 2001)

CARLOS MOLINA-MORALES, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 98-71410

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted August 9, 2000

Filed January 19, 2001

Manuel Rios, Seattle, Washington, for the petitioner.

Norah Ascoli Schwarz, U.S. Department of Justice, Washington, D.C., for the respondent.

Petition to Review a Decision of the Immigration and Naturalization Service. INS No.A29-458-905

Before: Betty B. Fletcher, Cynthia Holcomb Hall, and A. Wallace Tashima, Circuit Judges.

Opinion by Judge Tashima; Dissent by Judge B. Fletcher

TASHIMA, Circuit Judge:

Carlos Molina-Morales ("Molina"), a native and citizen of El Salvador, petitions for review of an order of the Board of Immigration Appeals ("BIA"), affirming an Immigration Judge's ("IJ") decision, denying him both asylum and withholding of deportation. The BIA held that Molina had not established that he was persecuted on account of any statutorily-protected ground. We have jurisdiction under 106(a) of the Immigration and Nationality Act ("INA"), 8 U.S.C. 1105a(a)(1), "as it was codified prior to the passage of [the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996) (`IIRIRA')]."¹Kalaw v. INS, 133 F.3d 1147, 1150 (9th Cir. 1997). We deny the petition for review.

Background

Molina is a 31-year-old unmarried male from Metapan, El Salvador. In February 1989, Molina's 18-year-old aunt² and her children were living with Molina and his grandmother in Metapan. For extra money, his aunt baby-sat for the family of Carmen Salazar. Salazar, a wealthy livestock trader, was a leader of the local ARENA party, and was running for mayor of Metapan. One night when his aunt came home from babysitting, she told Molina and his grandmother "that Carmen Salazar had forced her to have sex with him. Afterwards, he told her that if she told anyone that he would kill her and the person that she told." The grandmother suggested that they speak with Father Baria, a priest in the Catholic church, but Molina and his aunt went to the police station the next day. The aunt told a detective her story and he said there would be a wait for the court papers.

A week after they went to the police, Molina's aunt "left for school and she didn't come back. We looked for her everywhere, but we couldn't find her." Four men then came to Molina's home and asked if he could accompany them to the station so that the sergeant could ask him questions. At the station, Molina was questioned about his family until his grandmother arrived with Father Baria, who requested to remain with Molina during the questioning. The police stopped their questioning but retained Molina's travel documents and his voter identification card.

Three or four days later, a man came to the home to tell Molina that there was a young woman's cadaver at the morgue that may be his aunt. Molina felt uneasy because "I had never seen that man before and it seemed strange to me that he was telling me that." As Molina walked toward the morgue:

a truck stopped by and four men came out of the truck and one of them put a pistol against my head and they put a bag over my head and they threw me on the truck's bed, and they started stepping on my fingers, but [at that point] they weren't asking any questions they were just torturing me. They put their boots on top of my face.

They then started beating Molina, asking "if anybody knew about the claim [of rape] that we made."

Molina left El Salvador, going across the border to Guatemala. His grandmother visited him twice, and told him that Salazar was mayor of Metapan, "and that the men working for Carmen Salazar continue to search for the respondent." His grandmother did not visit again because on the second visit, "someone followed her."

Molina entered the United States without inspection on or about September 1, 1989, at San Ysidro, California. He then went to Canada to seek asylum. From Canada, he spoke with his grandmother who "would cry and tell me that men were still looking for me and that I could never return[to El Salvador]." According to Molina, men go to his grandmother's home "all the time. They keep asking her where I am -where do I live." He testified that Salazar's people would kill him if he returned to El Salvador because "they think I would denounce them."

After living in Canada for about three years, Molina returned to the United States without inspection because his asylum application was denied in Canada. Molina purchased forged immigration papers and false identification in the United States, which he used to procure a U.S. passport.³

On November 19, 1992, the Immigration and Naturalization Service issued an Order to Show Cause, charging Molina with entering the United States without inspection in violation of INA 241 (a)(1)(B), 8 U.S.C. 1251(a)(1)(B) (recodified at INA 237, 8 U.S.C. 1227). In 1997, the IJ denied Molina's application for asylum and withholding of deportation, and ordered him deported to El Salvador. The IJ found that Molina was not credible, and that, even if he were, he failed to show that he was persecuted "on account of " political opinion, or any other ground protected under the INA.

Molina appealed to the BIA, which dismissed his appeal in a 2-1 decision. The BIA did not find it necessary to make a credibility determination, because it found that even if Molina's testimony were credible, he failed to meet his burden of proving eligibility for asylum. The BIA noted that Molina "provided no evidence that he opposed the ARENA party or that he was in any way involved with a political party or in political activities in El Salvador." The BIA also asserted that Molina's "attackers did not mention the ARENA party, or anything else of a political nature during the attack." The BIA concluded that Molina's "attackers were [not ] in any way motivated by the respondent's political opinion or an opinion they imputed to him. . . . Rather, the evidence suggests that he fears harm because of a personal matter between him and Carmen Salazar." The BIA found that Molina failed to establish either past persecution or a well-founded fear of future persecution "on account of" any of the statutory grounds, and thus did not qualify for either asylum or withholding of deportation. Molina filed a timely petition for review.

Standard of Review

We review de novo determinations by the BIA of purely legal questions concerning requirements of the INA. See Vang v. INS, 146 F.3d 1114, 1116 (9th Cir. 1998). We examine the BIA's factual findings under the substantial evidence standard. See Marcu v. INS, 147 F.3d 1078, 1082 (9th Cir. 1998) ("Our task is to determine whether there is substantial evidence to support the BIA's finding, not to substitute an analysis of which side in the factual dispute we find more persuasive."), cert denied, 526 U.S. 1087 (1999). We must uphold findings by the BIA "unless the evidence compels a contrary conclusion." Prasad v. INS, 101 F.3d 614, 617 (9th Cir. 1996) (citing INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992)). We review the BIA's decision, rather than the IJ's decision, because "the BIA conduct[ed] a de novo review of the record and ma[de] an independent determination about whether relief is appropriate." De Leon-Barrios v. INS, 116 F.3d 391, 393 (9th Cir. 1997); see also Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir. 1995) (stating that we can only review the BIA's decision when it conducts a de novo review, "except to the extent that the IJ's opinion is expressly adopted by the Board").

Analysis

The Attorney General may, in her discretion, grant asylum to an applicant determined to be a refugee, within the meaning of INA 101(a)(42)(A), 8 U.S.C S 1101(a)(42)(A). An alien establishes refugee status if he is unable or unwilling to return to his country of nationality or residence either because (1) he was persecuted in the past, or (2) he has a well-founded fear of future persecution "on account of race, religion, nationality, membership in a particular social group, or political opinion." INA 101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A); see INS v. Cardoza-Fonseca, 480 U.S. 421, 423 (1987); Korablina v. INS, 158 F.3d 1038, 1043 (9th Cir. 1998). In this case, Molina argues that he is eligible for asylum because he was persecuted on account of an imputed political opinion.

The Attorney General must withhold deportation of any asylum applicant who establishes a "clear probability of persecution," which is a stricter standard than the "well-founded fear" standard for asylum. INS v. Stevic, 467 U.S. 407, 430 (1984). An alien who fails to establish eligibility for asylum "necessarily fails to establish eligibility for withholding of deportation." Singh-Kaur v. INS, 183 F.3d 1147, 1149 (9th Cir. 1999). The applicant has the burden of proving his eligibility with "credible, direct, and specific evidence." Prasad v. INS, 47 F.3d 336, 338 (9th Cir. 1995) (quoting Shirazi-Parsa v. INS, 14 F.3d 1424, 1427 (9th Cir. 1994), overruled on other grounds by Fisher v. INS, 79 F.3d 955 (9th Cir. 1996) (en banc)).

In Sangha v. INS, 103 F.3d 1482 (9th Cir. 1997), we held that there are three ways that an applicant can establish a "political opinion" claim. See id. at 1488-90. An applicant can show: (1) "affirmative political beliefs; " (2) "political neutrality in an environment in which political neutrality is fraught with hazard, from governmental or uncontrolled anti governmental forces;" or (3) "an imputed political opinion." Id. at 1488-89. The BIA concluded that Molina's "attackers were [not] in any way motivated by the respondent's political opinion or an opinion they imputed to him."

There is no evidence in the record, nor does Molina assert, that he was persecuted on account of his affirmative political beliefs. Rather, Molina argues that his report of the rape was...