Rebollo-Jovel v. I.N.S.

• Decision Date: 11 July 1986
• Docket Number: P,No. 84-7858,REBOLLO-JOVE,84-7858
• Citation: 794 F.2d 441
• Parties: Efrain Antonioetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 441

794 F.2d 441

Efrain Antonio REBOLLO-JOVEL, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 84-7858.

United States Court of Appeals Ninth Circuit.

Submitted Sept. 3, 1985.

Decided July 11, 1986.

Alan M. Anzarouth, San Diego, Cal., for petitioner.

James A. Hunolt, Michael Lindeman, Joan E. Smiley, Washington, D.C., for respondent.

Petition for Review of a Decision of the Board of Immigration Appeals.

Before WALLACE, CANBY, and BEEZER, Circuit Judges.

WALLACE, Circuit Judge:

Rebollo-Jovel is a native and citizen of El Salvador who entered the United States without inspection. At his deportation hearing, Rebollo-Jovel conceded deportability and applied for withholding of deportation under 8 U.S.C. Sec. 1253(h) and for political asylum under 8 U.S.C. Sec. 1158(a). The immigration judge (IJ) denied both applications. The Board of Immigration Appeals (Board) dismissed Rebollo-Jovel's appeal, holding that he had failed to show either a "clear probability" or a "well-founded fear" of persecution. Rebollo-Jovel petitions for review, contending, first, that the Board applied the unduly heavy "clear probability" burden of proof to his asylum-eligibility claim and, second, that in any event he did demonstrate a "clear probability of persecution" sufficient to entitle him to withholding of deportation and to render him eligible for a discretionary grant of asylum. We have jurisdiction pursuant to 8 U.S.C. Sec. 1105a(a), and we deny the petition for review.

I

A.

To be entitled to withholding of deportation to a country, an alien must show a "clear probability" that his life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. Sec. 1253(h). "Clear probability" requires a showing that persecution is "more likely than not." INS v. Stevic, 467 U.S. 407, 424, 104 S.Ct. 2489, 2498, 81 L.Ed.2d 321 (1984); Espinoza-Martinez v. INS, 754 F.2d 1536, 1539 (9th Cir.1985) (Espinoza-Martinez). Evidence of general conditions of strife is insufficient by itself to establish a clear probability of persecution. See Espinoza-Martinez, 754 F.2d at 1540; Chavez v. INS, 723 F.2d 1431, 1433-34 (9th Cir.1984) (Chavez). We review withholding of deportation decisions for substantial evidence. Espinoza-Martinez, 754 F.2d at 1539.

To be eligible for a discretionary grant of asylum, a petitioner must show a "well-founded fear" of persecution in his home country on account of race, religion, nationality, membership in a particular social group, or political opinion. See 8 U.S.C. Secs. 1158(a), 1101(a)(42)(A). A "well-founded fear" contains both a subjective component, requiring the fear to be genuine, and an objective component, which "requires a showing, by credible, direct, and specific evidence in the record, of facts that would support a reasonable fear that the petitioner faces persecution." Diaz-Escobar v. INS, 782 F.2d 1488, 1492 (9th Cir.1986) (Diaz-Escobar) (emphasis added). Because this standard requires slightly less than a showing that persecution is "more likely than not," id., the "well-founded fear" standard is somewhat more generous than the "clear probability" standard. Id.; Bolanos-Hernandez v. INS, 767 F.2d 1277, 1282-83 (9th Cir.1984); Argueta v. INS, 759 F.2d 1395, 1396-97 (9th Cir.1985). We must determine whether substantial evidence supports the Board's determination that Rebollo-Jovel has failed to prove a well-founded fear of persecution. Diaz-Escobar, 782 F.2d at 1491-92.

B.

The Board denied Rebollo-Jovel's request for withholding of deportation because he failed to demonstrate a "clear probability of persecution." In denying Rebollo-Jovel's application for asylum, the Board stated that he had failed to substantiate his asylum claim "regardless of whether such claim is assessed in terms of demonstrating a 'clear probability,' a 'realistic likelihood,' a 'reasonable possibility' or a 'good reason to fear' persecution." The Board has since made it clear that it does not regard the well-founded fear standard and the clear probability standard to be meaningfully different. See Matter of Acosta, Interim Dec. No. 2986 (BIA Mar. 1, 1985) (Acosta). Rebollo-Jovel argues that the Board erroneously applied the clear probability standard to his asylum claim. The Immigration and Naturalization Service (INS) urges us to adopt the Board's position in Acosta, in effect asking us to overrule Ninth Circuit precedents. The primary question before us is what we should do when faced with a Board opinion that denies asylum on the ground that the alien failed to demonstrate a "well-founded fear" of persecution, whether that term is defined as a "clear probability," a "realistic likelihood," a "reasonable possibility," or a "good reason."

We have had several occasions to consider cases in which the Board used similar words to summarize its review of a request for asylum. Most often we have upheld the Board's denial of asylum in these cases. Compare Vides-Vides v. INS, 783 F.2d 1463, 1468-69 (9th Cir.1986) (Vides-Vides); Quintanilla-Ticas v. INS, 783 F.2d 955, 957 (9th Cir.1986) (Quintanilla-Ticas); Chatila v. INS, 770 F.2d 786, 790 (9th Cir.1985) (Chatila); Saballo-Cortez v. INS, 761 F.2d 1259, 1262 (9th Cir.1984) (Saballo-Cortez), with Cardoza-Fonseca v. INS, 767 F.2d 1448, 1450, 1453-54 & n. 6 (9th Cir.1985) (Cardoza-Fonseca), cert. granted, --- U.S. ----, 106 S.Ct. 1181, 89 L.Ed.2d 298 (1986). The Board's choice of words in this case is problematic primarily because it has indicated, in Acosta, that it believes the "clear probability" and "well-founded fear" standards "are not meaningfully different and, in practical application, converge." Acosta, at 25. Although the circuits are divided on this question, compare Sankar v. INS, 757 F.2d 532, 533 (3d Cir.1985), with Cardoza-Fonseca, and the Supreme Court has granted certiorari in one of our cases apparently to resolve the dispute, see INS v. Cardoza-Fonseca, --- U.S. ----, 106 S.Ct. 1181, 89 L.Ed.2d 298 (1986), our case law quite clearly establishes that the legal difference between "clear probability" and "well-founded fear" must be respected. See Vides-Vides, 783 F.2d at 1468.

Unless the Supreme Court directs otherwise, we cannot uphold denials of asylum based upon a failure to demonstrate that persecution is "more likely than not," and we thus require the Board to indicate that it has applied a somewhat less demanding standard. See id. At the same time, we recognize that the Board need not entirely segregate its analysis of "clear probability" and "well-founded fear," because if an alien "fail[s] to show a well-founded fear of persecution, he a fortiori fail[s] to show a clear probability of it whether or not the latter standard is more stringent or the same as the former." Diaz-Escobar, 782 F.2d at 1491; see also Quintanilla-Ticas, 783 F.2d at 957.

Nothing in our case law suggests that the use of certain words should lead either to automatic affirmance, or to automatic reversal. See Vides-Vides, 783 F.2d at 1468-69. Where the Board applies an erroneous standard in reviewing an asylum claim, it should not be able to protect its decision by invoking a talismanic litany of words. We address questions relating to the standard applied on a case-by-case basis, deciding each not on the basis of "certain magic words," but on the basis of what the Board actually did. Id. Still, the several circuit court cases in which the Board ruled against aliens' asylum claims using the same or similar language afford us considerable guidance.

In Carvajal-Munoz v. INS, 743 F.2d 562, 575 (7th Cir.1984) (Carvajal-Munoz), the Board held that an alien's evidence failed to meet any of several standards. The Seventh Circuit concluded that "although it did not go into detail regarding the specific evidentiary burden connected with each of the two standards," the Board's reference to "good reason" and "realistic likelihood" as well as to "clear probability" made it apparent that the Board had assessed the evidence under an appropriately lenient standard. Id.; see id. at 572-75.

In Saballo-Cortez, we reasoned similarly:

We note that the [Board] found that Saballo-Cortez failed to meet his burden of proof "whether his claim is assessed in terms of whether he has demonstrated 'clear probability,' 'good reason,' or 'realistic likelihood' of persecution." Thus, we cannot say on this record that the [Board] improperly applied the clear probability of persecution standard, as claimed by Saballo-Cortez.

761 F.2d at 1262. The Board's language made plain enough that it had done more than to apply the "clear probability" standard alone.

Eight months later, in Cardoza-Fonseca, we struck down a denial of asylum despite the Board's use, in an unpublished and nonprecedential decision, of similar language. The record in Cardoza-Fonseca, however, was significantly different from its predecessor cases. We wrote:

The [Board] affirmed, stating that no matter what burden of proof Cardoza-Fonseca faced, whether " 'clear probability,' 'good reason' or 'realistic likelihood,' " all of which the Board thought to be identical, she failed to show that she "would suffer persecution." The Board also reasoned that her claim failed because she had not introduced any objective evidence to demonstrate that she "will be subject to persecution."

767 F.2d at 1450 (emphasis supplied by court).

Thus, we concluded that the Board erroneously demanded proof that the alien would suffer persecution, and that its articulation of other standards of proof did not change this. In effect, the Board had held that " 'good reason' or 'realistic likelihood' meant no more and no less than 'clear probability.' " Id. at 1454 (footnote omitted). We recognized that this represented a departure from the usual usage. We wrote:

We need not decide whether the phrase "good reason" could be synonymous with "well-founded...