Montecino v. I.N.S.
| Decision Date | 28 September 1990 |
| Docket Number | No. 89-70008,89-70008 |
| Citation | 915 F.2d 518 |
| Parties | Jose Benedicto MONTECINO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Marvin E. Krakow, Los Angeles, Cal., for petitioner.
John R. Bolton, Asst. Atty. Gen., Civ. Div., Richard M. Evans, Asst. Director, Office of Immigration Litigation, and Alice M. Smith, Office of Immigration Litigation, Washington, D.C., for respondent.
Petition to Review a Decision of the Board of Immigration Appeals.
Before BROWNING, NOONAN and FERNANDEZ, Circuit Judges.
Jose Benedicto Montecino-Reyes appeals from the denial from the Board of Immigration Appeals (the Board) of his petition for withholding of deportation and grant of political asylum. We reverse and remand.
Montecino, born on September 4, 1962, was a resident of Canton Caulotillo Jurisdiction El Camon, La Union, El Salvador. In 1982 he served as a soldier in the army of El Salvador. At the end of the year in September 1983--with or without permission, the evidence is ambiguous--he left the army and returned to his parents' home in the small village in which they lived. The day before he got back, at 1:00 A.M. in the morning, there was a knock at his parents' door. The nocturnal visitors were guerrillas, who asked that the door be opened. Montecino's father opened the door. The guerrillas asked for water. They also asked Montecino's parents if they had sons in the army. Montecino knew of men, discharged from the army, who had been killed by guerrillas. Guerrillas regularly patrolled the area on foot, questioning the women of the country about soldiers or ex-soldiers. When Montecino heard of the guerrillas' visit to his home, he concluded that he was in danger and did not stay with his parents but with his aunt. His parents told him to leave the country.
At the deportation hearing he was asked why he left. His answer, as it appears in the record, was as follows:
Because of the reason, they persecute you, and my parents didn't want me to hid (sic) there. Because the tortures they do to you are to much (sic), and my parents wanted to see me alive, so that's why they made the effort to send me over here.
He further testified that he could not have been safe in any other part of El Salvador. As he put it,
Montecino entered the United States on foot in October 1983 without inspection. He was soon apprehended. A hearing on deportability was held in Phoenix, Arizona before Immigration Judge William F. Nail, Jr. on December 9, 1983. The hearing was continued to permit Montecino an opportunity to prepare a petition for asylum. Montecino then moved to join his family in Los Angeles and obtained counsel there. Counsel moved for a change of venue. The motion was denied. The hearing continued before Judge Nail on April 9, 1984. At this hearing Montecino was represented by a lawyer from the Central American Refugee Project. Montecino testified to the facts stated above in regard to his fear of the guerrillas. Leon M. Johnson, Director of the Office of Asylum Affairs, in the Bureau of Human Rights and Humanitarian Affairs of the United States Department of State filed a form letter stating that his office saw no basis for granting asylum.
Judge Nail held there was no evidence that Montecino had been persecuted and no evidence to indicate that he would be persecuted. Judge Nail did not distinguish between the standards for withholding deportation and for denying asylum. Without indicating which petition he was addressing, he simply held, "I must deny the application."
Montecino appealed Judge Nail's "decision" to the Board of Immigration Appeals. The Board recognized that Judge Nail had applied the wrong standard in determining eligibility for asylum. The Board followed its own decision, Matter of Mogharrabi, Interim Dec. 3028 (BIA 1987), which holds that eligibility is established by an applicant by showing "that a reasonable person in his circumstances would fear persecution if he were to be returned to his native country." Applying that standard the Board upheld the denial of asylum. The Board further found that the danger from the guerrillas was not "persecution," but "a threat with an entirely rational and strategic purpose behind it." The threat, the Board added, was "a risk of civil war, not a risk of persecution."
The Board did not address Montecino's claim for withholding of deportation, apparently assuming that it somehow dealt with his claim in denying asylum. Montecino appealed to this court on both issues.
Withholding of deportation. The Board entered no opinion of any kind as to the withholding of deportation. We cannot review an administrative decision without any rational opinion whatsoever supporting it. Accordingly, this issue must be remanded to the Board for it to act upon Montecino's application.
Asylum. The Board held that a threat "with an entirely rational and strategic purpose behind it" did not constitute persecution. This novel doctrine is entitled to the deference an administrative agency should have in defining more precisely a statutory term within its competence. Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 866, 104 S.Ct. 2778, 2793, 81 L.Ed.2d 694 (1984). However, the deference is limited, and the Board's interpretation must be rejected if it is arbitrary. Id. at 844-45, 104 S.Ct. at 2782-83.
Persecutors, whether they are governmental or guerrilla, often have purposes that from their perspectives are "rational and strategic." Communist regimes for example have persecuted capitalists because rationally and strategically from a Communist perspective the capitalists were undesirable. Whether an act is or is not persecution cannot depend on whether it is rational or strategic from the point of view of the persecutors. The Board's definition must be...
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...or by the inaccuracies in the Notice to Appear, Such a "shoddy process," however, is generally unacceptable. See Montecino v. INS, 915 F.2d 518, 521 (9th Cir. 1990). I emphasize that meaningful notice and a fair hearing are all that stand between the respondent and removal from a country in......
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...or by the inaccuracies in the Notice to Appear. Such a "shoddy process," however, is generally unacceptable. See Montecino v. INS, 915 F.2d 518, 521 (9th Cir. 1990). I emphasize that meaningful notice and a fair hearing are all that stand between the respondent and removal from a country in......
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...2778, 81 L.Ed.2d 694 (1984), and its progeny. See, e.g., Hernandez-Vivas v. INS, 23 F.3d 1557, 1560 (9th Cir.1994); Montecino v. INS, 915 F.2d 518, 520 (9th Cir.1990); see also Mendoza v. INS, 16 F.3d 335, 337 (9th Cir.1994); Navarro-Aispura v. INS, 842 F.Supp. 1225, 1227-28 (N.D.Cal.1993);......
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Fisher v. I.N.S.
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