Novoa-Umania v. I.N.S.

• Decision Date: 05 December 1989
• Docket Number: P,NOVOA-UMANI,No. 89-1623,VOA-UMANI,89-1623
• Parties: Samueletitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

896 F.2d 1

Samuel NOVOA-UMANIA, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 89-1623.

United States Court of Appeals First Circuit.

Heard Dec. 5, 1989.

Decided Feb. 15, 1990.

Deborah M. Cerullo, Cambridge, Mass., with whom William H. Miller and Emmanuel Legal Services were on brief, for petitioner.

Maureen O'Sullivan, Jeremiah Friedman, Harvey Kaplan, Washington, D.C., and Law Office of Harvey Kaplan, were on brief for American Immigration Lawyers Ass'n and Nat. Immigration Project of the Nat. Lawyers Guild, amici curiae.

Alice M. Smith with whom Stuart M. Gerson, Asst. Atty. Gen., Mark C. Walters, Asst. Director, and Alison P. Drucker, Dept. of Justice, Civil Div., Office of Immigration Litigation, Washington, D.C., were on brief, for respondent.

Before BOWNES, BREYER and SELYA, Circuit Judges.

BREYER, Circuit Judge.

The issue in this case is whether the Immigration and Naturalization Service could find, on the basis of the record facts, that Samuel Novoa Umania, the petitioner, failed to show a "well-founded fear" that he faces persecution "on account of" his "membership in a particular social group, or political opinion" if he returns to El Salvador. See 8 U.S.C. Sec. 1158(a) (giving Attorney General discretionary authority to grant asylum to otherwise deportable alien who qualifies as a "refugee"); 8 U.S.C. Sec. 1101(a)(42)(A) (defining "refugee"). The Board of Immigration Appeals, acting on the Attorney General's behalf, has held that the record does not demonstrate a "well-founded fear" of such persecution. It said, in essence, that Novoa failed to show that "a reasonable person in his circumstances would fear persecution." See Carcamo-Flores v. INS, 805 F.2d 60, 68 (2d Cir.1986); Guevara-Flores v. INS, 786 F.2d 1242, 1249 (5th Cir.1986), cert. denied, 480 U.S. 930, 107 S.Ct. 1565, 94 L.Ed.2d 757 (1987); Matter of Mogharrabi, Interim Decision 3028 (BIA 1987). In the absence of this requisite threshold finding, the Attorney General could not exercise his discretionary authority to permit Novoa to stay in the United States. See INS v. Cardoza-Fonseca, 480 U.S. 421, 428, 107 S.Ct. 1207, 1211, 94 L.Ed.2d 434 (1987) (deportable alien must show "well-founded fear of persecution" as precondition for exercise of discretionary asylum authority). Cf. 8 U.S.C. Sec. 1253(h); INS v. Stevic, 467 U.S. 407, 429-30, 104 S.Ct. 2489, 2501, 81 L.Ed.2d 321 (1984) (where deportable alien shows such persecution is "more likely than not," the government must withhold deportation).

Novoa asks us to review the Board's finding. He argues that his evidence was strong enough to require the Board to find that he feared the relevant persecution and that that fear was "well-founded." In particular, he says that the record shows a "well-founded fear" of persecution because of his "political" stance of neutrality. We have reviewed the record, fully aware that we must uphold any finding of fact that is supported by "substantial evidence," Diaz-Escobar v. INS, 782 F.2d 1488, 1492-93 (9th Cir.1986), and that we must also respect the Board's legal decision that the facts, as found, fall outside the scope of the relevant statutory phrase, "well-founded fear." See Cardoza-Fonseca, 480 U.S. at 448, 107 S.Ct. at 1221 (where "the agency is required to apply ... [statutory] standards to a particular set of facts[,] ... the courts must respect the interpretation of the agency"). Having examined the record, we find the issue a close one, but we cannot say that the Board's determination is unlawful.

The Board basically accepted Novoa's claims about the underlying facts of what had happened to him in the past. Those underlying facts fall into three separate categories. First, Novoa made certain factual assertions designed to show that his life is in danger:

1. In the late 1970's and early 1980's Novoa lived in Canton San Jacinto, El Salvador.

2. In August 1979 guerrillas came to his house at night. They asked him who, in the village, had a silver metal revolver. They threatened to kill him unless he told. They took him and another man to the center of the village. The other man, afraid for his life, told them who had guns.

3. In March 1980 guerrillas broke into his house, stealing things, and as a result Novoa had to sleep in the hills.

4. In June 1980 he had to stay inside his house while the guerrillas unloaded supplies nearby, and he felt in danger of being killed.

5. In March 1982 the guerrillas threatened the village residents that, if they voted in the elections, the guerrillas would kill them, cut off their hands, or beat them. Petitioner voted in the elections.

6. In April 1983 the guerrillas pressured him to help them, threatening to take everything he had if he did not cooperate.

7. In October 1983 the guerrillas interrogated and beat his cousin, asking the cousin whether petitioner favored the army. They later released the cousin.

8. In March 1984, when the guerrillas occupied the village, the government air force bombed it. A bomb destroyed part of petitioner's house.

A second set of facts suggested that each side in El Salvador's civil war thinks petitioner supports the other side. These facts include the following:

1. After the 1979 "revolver search" incident many people in the village thought he supported the guerrillas.

2. In 1981 the guerrillas thought he was "an ear" for the Army, but the Army, arriving in the village, said he was supporting the guerrillas.

3. In April 1983 the Army thought he was on the guerrillas' side and "registered" him.

4. When the guerrillas interrogated petitioner's cousin in 1983, they insisted to the cousin that petitioner must have something to do with the Army.

5. In January 1984 the Army surrounded his house, treated him like "a great criminal," accused him of supporting the guerrillas, threatened to kill him, and "registered" him again.

A third set of facts, which the INS relied upon in making its findings, helps support the contrary conclusion, that petitioner does not face political persecution. These facts include the following:

1. Petitioner left El Salvador in early 1984 with a passport and visa for Guatemala. He came to the United States illegally. He was deported. He returned to El Salvador and lived in its capital city, apparently without incident, from March until October 1984.

2. During this time family and friends took care of his house. The petitioner also traveled from San Salvador to his own canton to take care of his property.

3. His brothers and parents still live in El Salvador.

As we have said, petitioner argues that these facts require the Board to find that he has a "well-founded fear" that he will be persecuted because of his "political opinion" of "neutrality." We assume, as the Board apparently did, that in appropriate circumstances "neutrality" may fall within the scope of the statute's words "on account of ... political opinion." See Bolanos-Hernandez v. INS, 767 F.2d 1277, 1286 (9th Cir.1984); Argueta v. INS, 759 F.2d 1395, 1397 (9th Cir.1985). Nonetheless, we do not see how a petitioner such as Novoa, claiming asylum on the basis of "neutrality," could bring himself within the statute's terms unless he can demonstrate that a reasonable person would fear one of the following: 1) that a group with the power to persecute him intends to do so specifically because the group dislikes neutrals, or 2) that such a group intends to persecute him because he will not accept its political point of view, or 3) that one or more such groups intend to persecute him because each (incorrectly) thinks he holds the political views of the other side.

The record in this case does not support the first of these claims. There is no evidence that either the guerrillas or the government persecutes neutrals simply because they dislike neutrals. Nor can we say, giving proper weight to the Board's determinations, that the law requires the Board to find that Novoa has a "well-founded" fear that the government of El Salvador will persecute him either because he does not accept its political point of view or because it (wrongly) believes he favors the guerrillas. On the one hand, the record shows that in April 1983 the Army thought he was on the side of the guerrillas and registered him, and in January 1984 the Army treated him like a "great criminal," threatened to kill him, and registered him again. On the other hand, subsequent to those events (which apparently took place in his village), Novoa lived for more than six months in San Salvador, the nation's capital, without incident; and, during that time, the government apparently gave him a passport with a visa for Guatemala. Given this subsequent history, the Board might conclude that the earlier events reflected the violent nature of the civil war and do not represent an ongoing threat of persecution as a guerrilla supporter should Novoa return.

The most difficult evidentiary question is whether or not the facts demonstrate a "well-founded" fear that the guerrillas would persecute Novoa, either because he refuses to accept their point of view or because they believe he supports the government. On the one hand, the record shows that the guerrillas threatened to kill Novoa (unless he told them who had guns) in August 1979 and again (if he voted) in March 1982; in April 1983 they pressured him by threatening to take everything he had; in October 1983 they questioned and beat his cousin; and, on several occasions during this time, they spoke and acted as if they thought h...