Rodriguez-Roman v. I.N.S.
| Decision Date | 07 May 1996 |
| Docket Number | P,RODRIGUEZ-ROMA,No. 95-70230,95-70230 |
| Citation | 98 F.3d 416 |
| Parties | , 96 Cal. Daily Op. Serv. 7509, 96 Daily Journal D.A.R. 12,361 Francisco Lucasetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Nicole Hampton and Sherri L. Honer (law students), Western State University College of Law, Irvine, CA, for petitioner.
Carl H. McIntyre, Jr. (on the brief), and David M. McConnell (argued), Office of Immigration Litigation, United States Department of Justice, Washington, DC, for respondent.
Petition to Review a Decision of the Board of Immigration Appeals.
Before REINHARDT, KOZINSKI, and HAWKINS, Circuit Judges.
Opinion by Judge REINHARDT; Concurrence by Judge KOZINSKI; Special Concurrence by Judge REINHARDT and Judge HAWKINS.
Francisco Lucas Rodriguez-Roman, a native and citizen of Cuba, asserts that he left Cuba for political reasons and that, if deported, he would be subjected to prolonged incarceration, and possibly even death, for his unauthorized departure. He seeks review of the Board of Immigration Appeals (BIA) decision denying his requests for withholding of deportation and asylum under sections 243(h) and 208(a) of the Immigration and Nationality Act, 8 U.S.C. §§ 1253(h) and 1158(a) (1995). Adopting the decision of the Immigration Judge (IJ), the BIA determined that because Rodriguez would be punished pursuant to Cuban criminal law, the punishment, no matter how severe, could not constitute persecution. We disagree and grant his petition.
Rodriguez, a 36-year-old native and citizen of Cuba who harbored life-long anti-communist beliefs, fled Cuba and entered the United States without inspection in October of 1982. He was born in Havana, where he received a college education and became a teacher. He later joined the merchant marine so that he could plan his escape from the "Communist system and [its] injustices." After serving as a crew member for several years, during which time he worked on vessels that operated exclusively in Cuban waters, he was finally permitted to sail on voyages into foreign waters. He bided his time, waiting for an opportunity to escape. On his third trip abroad, he jumped ship and fled to the United States, where he applied for asylum on April 15, 1983.
On January 6, 1986, Rodriguez received an order to show cause why his illegal entry should not subject him to deportation. On November 18, 1986, at a hearing before an IJ, he conceded deportability but requested asylum, withholding of deportation, and voluntary departure. The IJ adjourned the hearing to permit him to file an application for asylum. 1
Rodriguez based his application for asylum on his illegal flight from Cuba. He described "leaving without [the] permission of ... the government [ ] as ... a serious crime...." He stated that having "escap[ed] the regime," he had, "in the eyes of the Cuban Communists and in [his] own eyes, demonstrated [his] antipathy for [Cuba], which completely inhibits the exercise of any freedom." His crime was particularly egregious, he explained, because he had "embarrassed the government." He had received various benefits from the Cuban government--his education and his position as a crew-member--but he "threw these in their face when [he] left the country." For "going to Mexico and the United States without having permission from the Cuban government," he stated, he would face imprisonment for 15 to 20 years or a death sentence.
At an August 8, 1990 hearing on the merits, Rodriguez presented extensive evidence in support of his requests for asylum and withholding of deportation. He testified that since his youth he had detested the Communist system and its lack of freedom, and had long planned to come to the United States to live in a free country. He testified that when he became unable to continue working as a teacher, he joined the merchant marine (which, he said, is not considered part of the military) so that he could escape. He stated that by leaving Cuba, he became a traitor in the eyes of the Cuban government, and that traitors are punished with twenty years in prison or death. 2 The main thrust of his claim for asylum, he testified, was that he would be incarcerated, or perhaps executed, because of his political beliefs if he were returned to Cuba.
Rodriguez described the consequences his escape has had on his family. He stated that one of his brothers had been arrested and imprisoned for months because the authorities believed he knew of or assisted in Rodriguez's flight, and that since his release he has been unable to find work because he was suspected of having helped him. He testified that his two other brothers had lost their jobs as well. 3 He said that his father had been "interrogated" and told that "his son was a traitor," and had later committed suicide. Finally, he stated that his family had come under suspicion, been ostracized by the community, and been subjected to surveillance.
Two witnesses, both of whom had been political prisoners in Cuba, testified on Rodriguez's behalf. The first, Leon Franco, had been imprisoned for nine years. In his affidavit, Franco explained that only a person who has the confidence of the Cuban government is granted the right to travel abroad, and stated that if a person granted that right were to defect, "asking for political asylum in a foreign country and later moving to the United States," he would be "classified" as an "ENEMY OF HIGH DANGER," tried before the Court of Crimes Against State Security, and sentenced to between three and twenty years. 4 Such a person, he stated, would "spend many years in prison for the crime of looking for FREEDOM."
At the hearing, Franco explained that he based his opinions on his observation of inmates who had left Cuba without permission and his conversations with them while in prison. He testified that Rodriguez, if returned, would be considered a traitor, incarcerated, and singled out for harsh treatment. He stated that inmates considered to be traitors were forced to share cells with deranged and violent inmates who might kill them. He also explained that while some traitors were incarcerated for from three to twenty years, others were subjected to indefinite sentences or shot. Last, he stated that the authorities also subjected traitors to a "moral death," subjecting them to abuse and denying them visits and medical attention.
The second witness, Romero Menendez, had been imprisoned for five years. He testified that while in prison he had met many inmates whose only crime was attempting to escape Cuba. He stated that those inmates were treated worse than the general population of the prison. Although he had not witnessed the killing of any inmates considered to be traitors, he said that many had "disappeared."
In an order dated August 9, 1990, the IJ denied Rodriguez's application for asylum. He reached several preliminary conclusions. First, he noted Rodriguez's testimony that he "harbored life-long anti-Communist sympathies," and concluded that Rodriguez fled Cuba "due to his political beliefs." Second, he noted that Rodriguez feared that, if returned to Cuba, he would be "arrested for illegally leaving the country, desertion and treason," and found that Rodriguez had established "a clear probability of being arrested for these crimes." Last, he noted Rodriguez's fear that he would receive a lengthy sentence, as well as the testimony of Rodriguez's witnesses regarding the treatment of traitors, the report by Amnesty International, and the opinion of the State Department, 5 and described the punishment that Rodriguez would face, if returned, as "harsh, if not fatal."
The IJ determined, however, in a Kafka-esque decision, that Rodriguez "would not be punished for his beliefs, but for committing crimes against the socialist state of Cuba." He properly construed the gravamen of Rodriguez's claim to be that prosecution for illegal departure "would be tantamount to persecution for political opinion." He had no doubt that the laws Rodriguez violated were, at least in part, politically motivated. However, that did not mean, he concluded, that those "laws become unenforceable as political persecution." Although the sentences in Cuba for illegal departure "appear[ed] to be harsh," he stated with stunning bureaucratic logic that he could not "take on the burden of assessing criminal penalties in a foreign country in the guise of political persecution." It is not surprising in light of this reasoning that he cited as an example of national attitudes toward the type of "crime" committed by Rodriguez this country's execution of Private Slovik during World War II. 6
On December 1, 1994, in a per curiam opinion, the BIA affirmed the IJ's decision and dismissed Rodriguez's appeal. After conducting an independent examination, reviewing the "contentions on appeal, the record of proceedings, and the immigration judge's decision," it affirmed, "based upon and for the reasons set forth in that decision." Despite having expressly adopted the opinion of the IJ, the BIA wrote three paragraphs of its own regarding Rodriguez's requests for asylum and withholding of deportation. Exclusively citing cases involving desertion from military service, and emulating the tone set by the IJ, the BIA concluded that "whatever problems [Rodriguez] may encounter as a result of his illegal departure and desertion from the merchant marine will be the result of prosecution for violating the laws of Cuba, and that [those problems] will not constitute 'persecution.' " Accordingly, the BIA "reasoned" that Rodriguez had not shown that a reasonable person in his circumstances would fear persecution, and as a result, that he was not eligible for either asylum or withholding of deportation. 7
On January 3, 1995, Rodriguez, on the advice of prior counsel, mistakenly sent a pro...
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