Rodriguez v. I.N.S.

• Decision Date: 14 March 1988
• Docket Number: No. 85-7417,85-7417
• Citation: 841 F.2d 865
• Parties: Maria Corado RODRIGUEZ, and Juan Carlos Corado Moreno, Petitioners, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 865

841 F.2d 865

Maria Corado RODRIGUEZ, and Juan Carlos Corado Moreno, Petitioners, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 85-7417.

United States Court of Appeals Ninth Circuit.

Argued Aug. 7, 1986.

Submitted Sept. 10, 1987.

Decided Sept. 25, 1987.

As Amended Nov. 5, 1987.

As Amended on Denial of Rehearing

and Rehearing En Banc March 14, 1988. ^*

Joel R. Reynolds, Felicia A. Marcus, and Della Hinn Bahan, Los Angeles, Cal., for petitioners.

Stewart Deutsch, Dept. of Justice, Washington, D.C., for respondent.

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

Before J. BLAINE ANDERSON, HARRY PREGERSON and STEPHEN REINHARDT, Circuit Judges.

ORDER

The panel has voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc. A proposed amended opinion was circulated to the full court on February 15, 1988. The full court has been advised of the suggestion for en banc rehearing, and no judge of the court has requested a vote on the suggestion for rehearing en banc. Fed.R.App.P. 35(b). The petition for rehearing is denied and the suggestion for a rehearing en banc is rejected.

The attached amended Opinion is ordered filed.

OPINION

REINHARDT, Circuit Judge:

I. Introduction

Maria Corado Rodriguez and Juan Carlos Corado Moreno (the "Corados"), a Salvadoran mother and her young son, petition for review of the Board of Immigration Appeals' (BIA) decision dismissing their appeal of their final deportation orders and denying their motion to reopen. They claim that the BIA erred in dismissing their appeal in view of the incompetence of their counsel and the absence of a full and fair hearing prior to deportation. The Corados also aver that, contrary to the BIA's holding, they established a prima facie case of persecution and, consequently, their motion to reopen should have been granted. Because we reverse and remand the BIA's denial of their motion, we express no opinion on their due process claim alleging incompetence of counsel and the denial of a full and fair hearing.

II. Proceedings Below

The Corados were charged with having entered the United States in July 1984 without inspection by an immigration officer, in violation of Section 241(a)(2) of the Immigration and Nationality Act (INA), 8 U.S.C. Sec. 1251(a)(2) (1982). At the deportation proceeding on January 4, 1985, petitioners conceded deportability. They did not apply for asylum or withholding of deportation because their nonattorney, INS-accredited counsel mistakenly assumed that persecution by nongovernmental groups could not form the basis for such relief. The immigration judge (IJ) found them deportable but granted them ninety days voluntary departure to April 4, 1985.

Petitioners, represented for the first time by an attorney, appealed the deportation decision to the BIA and submitted a motion to reopen on January 14, 1985. The Board dismissed their appeal, holding that the IJ had conducted a full and fair hearing. The BIA also decided that the Corados had failed to establish a prima facie case of persecution and, hence, denied their motion to reopen, after first redesignating it a motion to remand. The Board assumed for the purpose of its determination that the Corados had offered a reasonable excuse for not applying for asylum at the initial hearing. The Corados filed a timely petition for review with this court.

III. Analysis

A. Motion to Reopen/Remand

Along with their appeal of the IJ's deportation order, the Corados filed a motion to reopen with the BIA. Since the appeal was pending and the Board had not yet "rendered a decision," 8 C.F.R. Sec. 3.2 (1987), the BIA properly treated their motion as a "motion to remand to the immigration judge." See C. Gordon & G. Gordon, 8 Immigration Law and Procedure Sec. 62.08, at 62-39 (1987). We will accordingly hereinafter refer to the Corados' motion as a motion to remand.

The formal requirements of the motion to reopen and those of the motion to remand are for all practical purposes the same. As explained in the leading treatise on immigration law:

Since a motion to remand is so similar to a motion to reopen, the motion to remand should be drafted in conformity with the regulations pertinent to motions to reopen, 8 CFR 3.2 and 3.8.

C. Gordon & G. Gordon, supra, at 62-41.

The regulations issued by the INS thus describe the requirements for a motion to reopen:

Motions to reopen in deportation proceedings shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing; nor shall any motion to reopen for the purpose of affording the alien an opportunity to apply for any form of discretionary relief be granted if it appears that the alien's right to apply for such relief was fully explained to him and an opportunity to apply therefor was afforded him at the former hearing unless the relief is sought on the basis of circumstances which have arisen subsequent to the hearing.

8 C.F.R. Sec. 3.2 (1987). See R. Steel, Immigration Law Sec. 14:57 at 468 (1985). We have distilled this administrative language into two requirements. Petitioners "must make a prima facie showing that [they are] eligible for the relief sought, INS v. Jong Ha Wang, 450 U.S. 139, 143-44 n. 5, 101 S.Ct. 1027, 1030-31 n. 5, 67 L.Ed.2d 123 (1981) (per curiam), and explain [their] failure to present the evidence in the previous proceeding. 8 C.F.R. Secs. 3.2, 3.8." Aviles-Torres v. INS, 790 F.2d 1433, 1436 (9th Cir.1986) (parallel citations omitted). We deal with each in turn.

B. Prima Facie Case

1. Standards of Proof. The Corados are entitled to mandatory withholding of deportation if their "life or freedom would be threatened in [El Salvador] on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. Sec. 1253(h)(1) (1982). In INS v. Stevic, the Supreme Court held that "the 'clear probability of persecution' standard remains applicable to Sec. 243(h) withholding of deportation claims." 467 U.S. 407, 430, 104 S.Ct. 2489, 2501, 81 L.Ed.2d 321 (1984). The Court explained that under the clear probability standard "[t]he question ... is whether it is more likely than not that the alien [will] be subject to persecution." Id. at 424, 104 S.Ct. at 2498.

The Corados qualify for a discretionary grant of asylum if they show a "well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion...." 8 U.S.C. Secs. 1101(a)(42), 1158(a) (1982). The well-founded fear standard "play[s] no part" in the decision whether to withhold deportation, INS v. Cardoza-Fonseca, --- U.S. ----, 107 S.Ct. 1207, 1212, 94 L.Ed.2d 434 (1987), and "is in fact 'more generous' than the clear-probability test." Bolanos-Hernandez v. INS, 767 F.2d 1277, 1282 (9th Cir.1985). See also Hernandez-Ortiz v. INS, 777 F.2d 509, 514 (9th Cir.1985); Sarvia-Quintanilla v. INS, 767 F.2d 1387, 1393 (9th Cir.1985). In Cardoza-Fonseca, the Supreme Court concluded:

Our analysis of the plain language of the Act, its symmetry with the United Nations Protocol, and its legislative history, lead inexorably to the conclusion that to show a "well-founded fear of persecution," an alien need not prove that it is more likely than not that he or she will be persecuted in his or her home country.

107 S.Ct. at 1222.

The Court thus explained some of the differences between the two standards:

To begin with, the language Congress used to describe the two standards conveys very different meanings. The "would be threatened" language of Sec. 243(h) has no subjective component, but instead requires the alien to establish by objective evidence that it is more likely than not that he or she will be subject to persecution upon deportation. See Stevic, supra. In contrast, the reference to "fear" in the Sec. 208(a) standard obviously makes the eligibility determination turn to some extent on the subjective mental state of the alien. "The linguistic difference between the words 'well-founded fear' and 'clear probability' may be as striking as that between a subjective and an objective frame of reference.... We simply cannot conclude that the standards are identical."

Id. at 1212-13 (quoting Guevara Flores v. INS, 786 F.2d 1242, 1250 (5th Cir.1986), cert. denied, --- U.S. ----, 107 S.Ct. 1565, 94 L.Ed.2d 757 (1987)). The Court explained that even though the well-founded fear standard has an objective component, the alien does not have to show that persecution is more likely than not to take place.

That the fear must be "well-founded" does not alter the obvious focus on the individual's subjective beliefs, nor does it transform the standard into a "more likely than not" one. One can certainly have a well-founded fear of an event happening when there is less than a 50% chance of the occurrence taking place.

Id. at 1213. See also Hernandez-Ortiz v. INS, 777 F.2d at 513.

2. Improper Application of Standards of Proof. Initially, the BIA, in denying the Corados' motion to remand, correctly acknowledged that the clear probability standard applied to withholding of deportation and the well-founded fear standard applied to asylum. But, the BIA then made it clear that it found no difference between the two standards by specifically citing to In re Matter of Acosta, Interim Decision No. 2986 (BIA March 1, 1985), and concluding that "the eligibility standards for withholding of deportation and asylum are not meaningfully different and, in practical application, converge."

The recent Supreme Court decision in Cardoza-Fonseca, as we have noted supra, held unequivocally that the standards are not identical and do not converge. The difference between the two standards, as described in Cardoza-Fonseca, is meaningful and significant. The well-founded fear test is clearly more generous; some...