De Torres v. Reno

• Decision Date: 01 August 1998
• Docket Number: Docket No. 98-4124
• Parties: (2nd Cir. 1999) MARTA BRIGIDA MELGAR DE TORRES, Petitioner, v JANET RENO, Attorney General, AND THE IMMIGRATION AND NATURALIZATION SERVICE, Respondents
• Court: U.S. Court of Appeals — Second Circuit

Page 307

191 F.3d 307 (2nd Cir. 1999)

MARTA BRIGIDA MELGAR DE TORRES, Petitioner, v JANET RENO, Attorney General, AND THE IMMIGRATION AND NATURALIZATION SERVICE, Respondents.

Docket No. 98-4124

August Term, 1998

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Submitted: February 19, 1999

Decided: August 19, 1999

Petition for review of an order of the Board of Immigration Appeals denying petitioner's application for asylum and withholding of deportation.

Petition denied; decision of the Board of Immigration Appeals affirmed.

ANNE PILSBURY, Central American Legal Assistance, Brooklyn, New York, for Petitioner.

MEREDITH E. KOTLER, Assistant United States Attorney, New York, New York (Mary Jo White, United States Attorney for the Southern District of New York, Diogenes P. Kekatos and Sara L. Shudofsky, Assistant United States Attorneys on the brief), for Respondents.

Before: KEARSE and SACK, Circuit Judges, and STEIN, District Judge.^*

Judge Kearse dissents in a separate opinion.

STEIN, District Judge:

Petitioner Marta Brigida Melgar de Torres, a citizen of El Salvador, petitions for review of the order of the Board of Immigration Appeals ("BIA") affirming the immigration judge's denial of her requests for asylum and withholding of deportation pursuant to section 309(c)(4) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L. No. 104-208, Div. C., 110 Stat. 3009-626 (Sept. 30, 1996). Specifically, Melgar contends that she is entitled to relief because she has demonstrated a well-founded fear of persecution if she is returned to El Salvador on the grounds that she assisted her uncle in giving aid to the Marxist Farabundo Marti National Liberation Front ("FMLN") guerillas in that country and because he was allegedly killed for that aid.

In opposition, the Attorney General and the Immigration and Naturalization Service contend that the evidence does not support that fear, especially in light of the changed conditions in El Salvador since the signing of the 1992 peace accords there. For the reasons that follow, we conclude that the BIA's decision was supported by substantial evidence and we accordingly affirm the BIA's order and deny the petition.

FACTUAL BACKGROUND

The following evidence was presented at the hearing before the immigration judge ("IJ"):

In 1983, Melgar moved from the village of San Sebastian in El Salvador to the village of El Tablon; two years later, she met and married Jose Ulises Torres. However, eight months after the marriage, Jose Ulises left El Salvador for the United States to avoid conscription into the Salvadoran army. Once her husband emigrated, Melgar returned to San Sebastian to live with her uncle. Although Melgar's uncle was not an FMLN guerrilla, he helped the guerrillas by giving them food and allowing them to sleep in his house. Melgar assisted her uncle in those endeavors during the period of time that she lived in her uncle's home.

In November of 1992, Melgar's uncle was found murdered seven days after he left San Sebastian on a trip. Although Melgar does not know for certain who killed him, she believes the military did so because he had helped the guerrillas. Approximately one month after her uncle's death, soldiers came to her uncle's home -- where Melgar continued to live with her aunt and cousins -- and raped the women, including Melgar. After that incident, all of the women left San Sebastian for the capital city of San Salvador.

After Jose Ulises learned of the death of Melgar's uncle, he sent money to Melgar so she could join him in the United States. Melgar testified that she feared returning to the village of El Tablon because she believed that the military thought she was a guerrilla. Jose Ulises also testified that Melgar could not return to El Tablon because people in the town "were going to call her a guerrilla." At the time of the hearing, Jose Ulises was involved in a project to bring water to the village of El Tablon, which Jose Ulises claimed offends the mayor of El Tablon because the mayor himself hopes to bring water to the village.

Melgar has two daughters out of wedlock, born in 1990 and 1992. Both daughters remained in El Salvador with Melgar's mother until 1996, when they were brought illegally to the United States.

Documentary evidence was submitted by Melgar and the INS at the hearing before the IJ, and additional evidence was submitted after the hearing was completed but before the IJ rendered her decision. At the hearing, the INS submitted an April 29, 1995 New York Times article titled "El Salvador, 3 Years Later: A Country Remade by Peace." That article discusses the changes brought about by the 1992 peace accords, and reports that 1) the "National Guard, the Treasury Police and other security organizations that once terrorized the population have been disbanded and replaced by a new National Civilian Police;" 2) the army has been reduced by two-thirds; 3) "more than 100 senior officers accused of human rights violations have been purged;" and 4) the FMLN "has the second-largest delegation in the Legislative Assembly," although it did report that criminal gangs have become widespread in El Salvador and some elements of the peace accords have not yet been implemented.

After the hearing, the INS submitted both the 1995 and 1996 State Department Profiles of Asylum Claims & Country Conditions ("Country Profiles"). These Country Profiles demonstrate that the conditions in El Salvador changed greatly after Melgar emigrated. The 1995 Country Profile states that "all [asylum] claims from Salvadoran applicants should be reviewed in light of the sweeping changes which have taken place in that country" since the last guerrilla combat units were demobilized in December 1992. The 1995 Country Profile also points out that "[m]ost asylum claims from El Salvador still derive from events that occurred prior to the final implementation of the peace accords" and it notes that while the "level of violence in El Salvador remained high, . . . [t]here were no confirmed cases of politically motivated killings" and that the "number of extrajudicial killings, torture, disappearances, and mistreatment of detainees declined significantly in 1994."

The 1996 Country Profile reiterates that asylum claims from Salvadoran applicants should be viewed in light of the "sweeping changes" that have taken place since the peace accords and notes that the U.N. Human Rights Commission removed El Salvador from its list of countries subject to permanent monitoring and that the U.N. Secretary General declared the peace process "irreversible." It also discusses the demobilization of the military-controlled National Police, the deployment of the National Civilian Police and the decline in political violence from prior years. In addition, the 1996 Country Profile cautions that "although violent organized criminal gangs . . . have taken the place of political violence as the major security concern in El Salvador, many asylum applications continue to treat the situation as merely an extension of the civil war."

Melgar submitted a number of articles and documents demonstrating incidents of politically motivated violence which occurred after the peace accords were signed. However, most of these articles discuss the period immediately following the signing of the accords in 1992, not how conditions stood at the time of Melgar's deportation hearing. Of the seven newspaper articles submitted at the hearing, five were written in 1992, one in 1993 and one in 1995. The 1995 article discusses an armed group, the "Black Shadow," which threatened a local newspaper for disseminating false information about the group. Melgar also submitted a 1994 United Nations Joint Group Report dated October 22, 1994 that discusses politically motivated armed groups in El Salvador that were attempting to destabilize the peace process. The annex to the Joint Group Report lists politically motivated executions and execution attempts that took place from March 1992 through February 1994.

Melgar provided the IJ with a 1993 affidavit from a professor at Stanford University that catalogs politically motivated acts of violence from 1992 through October 1993. However, that affidavit states that "[w]hen fully implemented, [the peace accord] has the capacity to significantly diminish repression and political persecution in El Salvador."

After the conclusion of the hearing, Melgar submitted additional articles from the period 1993 - 1995 which discuss the assassination of an FMLN leader (attributing it to a military death squad) and "nazi death squads" which were threatening to assassinate gangs and corrupt officials. She also submitted a 1996 article concerning the "street violence" in El Salvador.

DISCUSSION

Congress has created two alternative forms of relief for deportable aliens who claim that they will be persecuted if forced to return to their native countries -- asylum and withholding of deportation. See Zhang v. Slattery, 55 F.3d 732, 737 (2d Cir. 1995). Pursuant to § 208(a) of the Immigration and Nationality Act, 8 U.S.C. § 1158(a), (the "Act"), an applicant for asylum in the United States must, as a threshold matter, establish that she is a "refugee" within the meaning of § 101(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A). A "refugee" is a person who is unable or unwilling to return to her native country because of "persecution or a well-founded fear of persecution on account of" one or more of five enumerated grounds - i.e., "race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A); see also INS v. Cardoza-Fonseca, 480 U.S. 421, 428, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987); Melendez v. United States Dep't of Justice, 926 F.2d 211, 214 (2d Cir. 1991). Once an individual proves either past persecution or a well-founded fear of future persecution on account of one or more of the five enumerated grounds,...