Platero-Cortez v. I.N.S.

• Decision Date: 24 November 1986
• Docket Number: PLATERO-CORTE,No. 85-7512,P,85-7512
• Citation: 804 F.2d 1127
• Parties: Carlos Ovidioetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1127

804 F.2d 1127

Carlos Ovidio PLATERO-CORTEZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 85-7512.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 14, 1986.

Decided Nov. 24, 1986.

James R. Mayock, San Francisco, Cal., for petitioner.

Eloise Rosas, Dept. of Justice, Washington, D.C., for respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before KENNEDY, REINHARDT and BRUNETTI, Circuit Judges.

BRUNETTI, Circuit Judge.

Petitioner Carlos Ovidio Platero-Cortez (Platero-Cortez) entered the United States without inspection. He applied for political asylum, prohibition against deportation, and voluntary departure. The Immigration Judge (IJ) denied his application; the Board of Immigration Appeals (BIA) dismissed his appeal. On petition for review, Platero-Cortez contends that: (1) the BIA applied an incorrect legal standard to his application; (2) substantial evidence supported his application; and (3) he was denied due process. We find that the BIA's decision is unsupported by substantial evidence. Platero-Cortez meets both the clear probability and the well-founded fear standards. He should not be deported and is eligible for asylum.

I. FACTS AND PROCEEDINGS BELOW

Platero-Cortez is a twenty-four year old citizen of El Salvador. He has entered the United States without inspection on at least three occasions, allegedly in an effort to flee the civil war in his country. Following his first illegal entry, he was granted voluntary departure on March 20, 1980. Upon his second illegal entry, he was deported to El Salvador on April 24, 1981. Platero-Cortez did not apply for asylum at his second deportation hearing because he was ill and was not informed of the necessary procedures.

He last entered the United States by crossing the Mexican border without inspection on or about July 31, 1981. An order to show cause why he should not be deported was issued on June 4, 1981. Platero-Cortez conceded deportability and applied for political asylum, prohibition against deportation, ¹ and voluntary departure. ²

A deportation hearing before the IJ was held on November 22, 1982. Platero-Cortez testified that he had been detained by the El Salvadoran National Guard in 1978, but he subsequently was released because one of the soldiers who detained him was acquainted with him and his family. He stated that in April 1981 he was taken off a bus, detained, and tortured by the El Salvadoran treasury police. He was released when a group of women with children passed by. Plateros-Cortez further testified that his employer and six of his coworkers had either "disappeared" or had been killed by the National Guard.

In further support of his asylum application, witness "John Doe" (Doe) ³ appeared on behalf of Platero-Cortez. The witness, a citizen of El Salvador, was an agent in the intelligence and security section of the National Guard. He testified that he had detained El Salvadoran citizens, interrogated them, searched their houses, and participated in the execution of approximately forty individuals suspected of leftist political affiliations. Doe stated that he had seen Platero-Cortez' name on the "death list" of the National Guard both in 1978 and 1981. The witness testified that Platero-Cortez' name appeared on these death lists because he was suspected of being a subversive and one of his sisters participated in an El Salvadoran coffee labor union, believed to be part of the leftist movement. Doe also testified that he was supposed to execute Platero-Cortez because his name appeared on the death list, but did not do so because he knew Platero-Cortez and his family. The witness further stated that those El Salvadorans who were deported from the United States would be met by soldiers at the airport upon return to El Salvador, their names would be put on a death list, and those persons on the list would be killed.

A second witness, James Oines, pastor of a Lutheran Church in Phoenix, Arizona, testified that he had been to El Salvador on two occasions. Upon arriving at the airport in El Salvador, he observed some of the El Salvadoran passengers being singled out and detained by soldiers. He also stated that he had heard about human rights violations and about the existence of death lists.

Platero-Cortez also submitted additional documents on appeal to the BIA, including a supplemental statement in which he stated that he had been arrested and tortured by the treasury police in April 1981, and an affidavit of his mother in which she stated that Platero-Cortez had been detained and tortured by the treasury police. His mother also stated that after Platero-Cortez left El Salvador the police searched the family dwelling five times.

Pursuant to 8 C.F.R. Sec. 208.10, the Bureau of Human Rights and Humanitarian Affairs of the United States Department of State, submitted an advisory opinion finding that Platero-Cortez failed to establish a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

On November 24, 1982, the IJ concluded that Platero-Cortez failed to show he had been persecuted in El Salvador or that he would be subject to persecution upon returning to El Salvador. The IJ also found the testimony of John Doe incredible because of the atrocities he committed while in the National Guard and his friendship with Platero-Cortez. On November 24, 1982, the IJ denied Platero-Cortez' application and ordered him deported.

On August 21, 1985, the BIA dismissed Platero-Cortez' appeal. The BIA found that Platero-Cortez' testimony was not "detailed and consistent as it should be" to

support his claim. The BIA rejected the IJ's finding that Doe was incredible because of the atrocities he committed. It did, however, determine Doe was incredible because of his alleged friendship with Platero-Cortez.

II. ANALYSIS

The government has the burden of proving that an alien is deportable. If the alien concedes deportability, however, as Platero-Cortez did in this case, the government's burden is satisfied. Estrada v. INS, 775 F.2d 1018, 1020 (9th Cir.1985).

A. Prohibition Against Deportation

Pursuant to section 243(h) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1253(h), the Attorney General is prohibited from deporting an alien to a country if the alien's life or freedom would be threatened in that country "on account of race, religion, nationality, membership in a particular social group, or political opinion." See INS v. Stevic, 467 U.S. 407, 421 n. 15, 104 S.Ct. 2489, 2496 n. 15, 81 L.Ed.2d 321 (1984); Bolanos-Hernandez v. INS, 767 F.2d 1277, 1281 (9th Cir.1984).

The Supreme Court has held that to be eligible for prohibition against deportation an alien must show a clear probability of persecution. This requires a showing that it is "more likely than not that the alien would be subject to persecution." Stevic, 467 U.S. at 424, 104 S.Ct. at 2498. The alien must present some specific evidence that (1) he or those similarly situated are at a greater risk than the general population and (2) that the threat to him is a serious one. Bolanos-Hernandez, 767 F.2d at 1284-85.

We review the record to determine if the BIA's denial of an application for prohibition against deportation is supported by substantial evidence. Saballo-Cortez v. INS, 761 F.2d 1259, 1262 (9th Cir.); Bolanos-Hernandez, 767 F.2d at 1282 n. 8.

We have stated that "mere assertions of possible fear" are insufficient to establish a clear probability of persecution. Shoaee v. INS, 704 F.2d 1079, 1084 (9th Cir.1983). There must be some factual support, some specific evidence, or some concrete evidence, to support the alien's claim that persecution likely would be directed toward him as an individual. Id.; Espinoza-Martinez v. INS, 754 F.2d 1536, 1540 (9th Cir.1985). Each case is evaluated on its own merits to determine whether the alien offered sufficient factual support and concrete evidence to establish a clear probability of persecution. See McMullen v. INS, 658 F.2d 1312, 1317 (9th Cir.1981).

We consider the alien's testimony carefully because an alien seeking asylum is often limited in the evidence he can obtain to show proof of potential persecution. See Zavala-Bonilla v. INS, 730 F.2d 562, 567 (9th Cir.1984); McMullen, 658 F.2d at 1319. The alien's testimony may, of course, be discredited by inconsistent statements and by the witness's demeanor.

Platero-Cortez testified that he had been detained by the National Guard in 1978 the same year his name first appeared on the death list. He also testified that shortly after his deportation to El Salvador in April 1981, he was riding on a bus which was stopped by soldiers, he was the only passenger taken off the bus, and that he was taken to an office of the treasury police and tortured.

Witness John Doe testified that he had seen Platero-Cortez' name on a "death list" both in 1978 and 1981. Doe believed that Platero-Cortez' name appeared on these lists because he was a suspected subversive and because of his sister's activities in the coffee union. Platero-Cortez testified that his sister's house was under constant surveillance. Doe testified that he was ordered to execute Platero-Cortez, but did not do so only because he knew Platero-Cortez and his family. Finally, Doe testified that persons appearing on a death list would be executed.

As previously noted, the affidavit of Platero-Cortez' mother stated that Platero-Cortez Both the IJ and the BIA found inconsistencies in Platero-Cortez' testimony and determined that Doe was an incredible witness. The BIA and the IJ found that Platero-Cortez was uncertain about the date he left El Salvador and about the date he was deported from the United States. The BIA noted also that Platero-Cortez testified that his employer and his employer's son were killed in a car, but stated in his asylum...