Salazar v. Ashcroft

Citation359 F.3d 45
Decision Date26 February 2004
Docket NumberNo. 02-2486.,02-2486.
PartiesAldo SALAZAR, Carmen Rodriguez Salazar, Petitioners, v. John ASHCROFT, Attorney General, Respondent.
CourtUnited States Courts of Appeals. United States Court of Appeals (1st Circuit)

Robert M. Warren, for petitioners.

Thankful T. Vanderstar, Office of Immigration Litigation, with whom Linda S. Wernery, Senior Litigation Counsel, Office of Immigration Litigation, and Peter D. Keisler, Assistant Attorney General, Civil Division, were on brief, for respondent.

Before SELYA, Circuit Judge, CYR, Senior Circuit Judge, and LYNCH, Circuit Judge.

LYNCH, Circuit Judge.

Aldo Salazar, a native and citizen of Peru, petitions for review of the Board of Immigration Appeals's denial of his application for asylum and withholding of removal. Carmen Rodriguez Salazar, his wife and a native and citizen of Venezuela, is a derivative asylum applicant. Both Salazars were admitted to the United States as visitors for pleasure and overstayed. The Salazars are apparently hardworking members of their community; they have many supporters and present a sympathetic case. Whether that outweighs their illegal presence was something the immigration authorities might have considered in the exercise of their prosecutorial discretion as to whether to seek deportation. A court, restricted in its review of the decisions made by immigration authorities, has no such discretion.

The agency's determination that Salazar was "firmly resettled" in Venezuela, and so ineligible for asylum in the United States, is supported by substantial evidence. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992); 8 C.F.R. §§ 208.13(c)(2)(1)(B), 208.15. We must deny the petition for review because firm resettlement in a third country is a mandatory bar to the granting of asylum. This marks our first occasion to address the firm resettlement doctrine.

I.

The Immigration Judge ("IJ") found Salazar's testimony credible. We describe the historical facts as Salazar recounted them at his hearing and in his application for asylum.

Salazar asserts that he would be in danger if returned to Peru because of the terrorist group Sendero Luminoso, or Shining Path, which has operated in Peru for over twenty years. The Shining Path opposes landowners and seeks to destroy farm ownership arrangements. Its members, Salazar explained, "do not want [those who] have money to exist."

Salazar's father owned a 103 acre farm in San José, Peru on which the family raised cattle for milking. In 1984, the Shining Path destroyed the nearest neighboring farm and damaged the Salazar farm. In response to that attack and to the Shining Path's announcement of its intent to "destroy the rest of the people that continue having properties" and "redistribute the wealth to everybody," Salazar's father "sold a great piece of the land" and sold many of the animals. He also resigned in 1984 as a rural judge, a position that he had held for a few years. No one else in the Salazar family held any political or official positions. In 1986, the Shining Path stole many of the Salazars's remaining horses, cows, and sheep, as well as most of their food supply. From that point, the Shining Path constantly harassed the Salazar family — coming to the farm and disturbing them at all different hours and distributing their land to others.

As a result of the threat from the Shining Path, the Salazar family began to abandon the farm in 1989. Gilmer Salazar, petitioner's older brother, did not leave the farm and was killed when the Shining Path dynamited the Salazar house in 1990. The rest of the family scattered throughout Peru, and petitioner's parents moved to Trujillo, where they constantly changed their names and tried not to go out in public.

Salazar himself traveled around Peru trying to stay far away from danger. He first went to Lima for one year, then traveled in the south of Peru for half a year because of terrorism in Lima, and then moved to the west of Peru. He did not want to leave Peru and remained there until July or August 1992 when he decided that he had to leave because of the danger. He left Peru, entered Ecuador, and stayed for a very brief time. He then moved on to Colombia, where he stayed for two months and worked to have money to continue with his trip. In October or November 1992, he traveled to Venezuela and entered the country illegally. He lived in Venezuela for at least fourteen months, worked there, and rented an apartment.

A Venezuelan passport was issued to Salazar on November 29, 1993. Salazar explained that he needed to be a Venezuelan resident to obtain a visa to the United States, and that "I met a man in Venezuela that told me that he could arrange [to have a resident stamp placed on my passport] for me if I paid him something." Salazar paid, a resident stamp was placed in his passport, and in December 1993 he applied for and received a visa from the United States Embassy to enter this country as a visitor for pleasure. Salazar says that he had always planned to come to the United States. He did not make any effort to obtain a visa to come to the United States from Peru. He met Carmen, his now wife, in Maracaibo while on line at the United States Embassy to request the visa, and they traveled together to the United States in February 1994. They were admitted as visitors for pleasure and authorized to stay until August 1994. Salazar never sought asylum in Ecuador, Colombia, or Venezuela.

Carmen and Aldo Salazar were married in the United States. Salazar's asylum application is dated April 13, 1994. Salazar and his wife left the United States twice after the submission of the application. They traveled to Venezuela on August 11, 1994 and returned to the United States a day later. They again traveled to Venezuela on February 10, 1995 and returned to the United States on February 26, 1995. On both trips, Salazar was readmitted to Venezuela as a Venezuelan resident. He testified that he showed the authorities his passport and they admitted him "with the residence that [he has]."

In 1996, the Shining Path killed Salazar's uncle, Antonio Salazar Contreras, who was a farmer and who lived near what used to be the Salazar family farm. The evidence that Shining Path was responsible for the murder, Salazar explained, was "the way he died because he was tortured" and strangled and "[t]hey left some papers, warnings, saying that this is the way the people are going to die if they don't let, leave their properties." Salazar said that his uncle was killed "[b]ecause he was there and he was still maintaining his property." Salazar believes that he would be in danger in Peru "because my family, my brothers and myself who were declared enemies of that Shining Path and we were threatened if we return." The threats were made on a "few occasions when we were there. Because we were in farm, we tried to defend ourselves and because of that, they put us in the black list." Salazar believes that the Shining Path declared his family to be enemies "because we ... did not want to leave our property and I think it was more because we always tried for the police to protect us." Salazar said he had only one instance of personal contact with members of Shining Path. He testified, "I was walking ... and I saw armed men and they asked me some things and that was it."

Salazar's parents and three of his siblings still reside in Peru. His other four surviving siblings live in the United States. According to a year 2000 country condition report, the Shining Path is still operating in Peru and is still responsible for numerous murders. The threat from the Shining Path has declined, though, and Salazar admitted that he was aware that Peru's government had captured a number of Shining Path leaders.

On August 31, 1999, the INS issued Aldo and Carmen Salazar notices to appear, charging them as deportable for having remained in the United States longer than authorized. The Salazars conceded deportability and sought asylum and withholding of deportation. The IJ found that Salazar has the status of a resident in Venezuela and so was "firmly resettled" under 8 C.F.R. 208.15 and ineligible for asylum. The IJ also held that Salazar had otherwise failed to establish asylum eligibility. The IJ found that although Salazar was at one time a member of a landowning family targeted by the Shining Path, he had ceased to be within that targeted social group when his family sold their property, moved, and safely resided elsewhere in Peru. Salazar's fear of persecution, the IJ determined, was not well-founded, and there was no basis for concluding that he would face a risk of harm in Peru on account of any asylum-eligible category. The IJ denied Salazar's application and granted him voluntary departure. The Board of Immigration Appeals ("BIA") affirmed without opinion, and Salazar filed this petition for review.

II.

The Attorney General has discretion to grant asylum to an alien applicant "if the Attorney General determines that such alien is a refugee within the meaning of [8 U.S.C.] section 1101(a)(42)(A)." 8 U.S.C. § 1158(b)(1). An asylum applicant bears the burden of establishing that he fits within the statutory definition of refugee, 8 C.F.R. § 208.13(a), a burden that involves proving "persecution or 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. 1101(a)(42)(A); see 8 C.F.R. § 208.13(b); Khem v. Ashcroft, 342 F.3d 51, 53 (1st Cir.2003).

Under 8 C.F.R. § 208.13(c)(2)(1)(B), which applies to asylum applications filed before April 1, 1997, asylum may not be granted to any applicant who "[h]as been firmly resettled within the meaning of [8 C.F.R.] § 208.15." Section 208.15 states:

An alien is considered to be firmly resettled if, prior to arrival in the United States, he or she entered into another country with, or while in that country received, an...

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