Turcios v. I.N.S.

• Decision Date: 14 July 1987
• Docket Number: No. 83-7199,83-7199
• Citation: 821 F.2d 1396
• Parties: Hugo TURCIOS, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1396

821 F.2d 1396

Hugo TURCIOS, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 83-7199.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 12, 1985.

Decided July 14, 1987.

James R. Mayock, San Francisco, Cal., and Della Hinn Bahan, Los Angeles, Cal., for petitioner.

Linda B. Adams, Washington, D.C., for respondent.

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

Before NELSON, CANBY and BRUNETTI, Circuit Judges.

BRUNETTI, Circuit Judge:

Hugo Turcios, a native and citizen of El Salvador, was arrested in 1982 and charged with deportability under 8 U.S.C. Sec. 1251(a)(2) (entry without inspection). He conceded deportability and applied for asylum and withholding of deportation under 8 U.S.C. Secs. 1158(a) and 1253(h). Turcios petitions for review of the Board of Immigration Appeal's (BIA) denial of his applications for asylum, withholding of deportation, and voluntary departure. He argues that (1) substantial evidence does not support the immigration judge's (IJ) finding that Turcios was not credible, (2) he has established a well-founded fear and a clear probability of persecution based on his political opinions, and (3) he has met his burdens of proof for both asylum and withholding of deportation. We grant the petition for review and remand to the BIA for exercise of its discretion on Turcios's asylum claim.

I Statutory Framework

Turcios applied for two forms of relief: withholding of deportation under section 243(h) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1253(h), and asylum under section 208(a) of the Refugee Act of 1980, 8 U.S.C. Sec. 1158(a). To qualify for withholding of deportation, Turcios must show a clear probability that if returned to his country his life or freedom would be threatened "on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. Sec. 1253(h); INS v. Stevic, 467 U.S. 407, 421 n. 15, 104 S.Ct. 2489, 2496 n. 15, 81 L.Ed.2d 321 (1984); Bolanos-Hernandez v. INS, 767 F.2d 1277, 1281 (9th Cir.1985). Applicants for withholding of deportation must show: (1) a likelihood of persecution, i.e. a threat to life or freedom; (2) persecution by the government or by a group which the government is unable to control; (3) persecution resulting from the petitioner's political beliefs; and (4) the petitioner is not a danger or a security risk to the United States. Zepeda-Melendez v. INS, 741 F.2d 285, 289 (9th Cir.1984). Only the first and third elements are at issue in this case. The Attorney General must withhold deportation upon proof that the applicant meets the statutory requirements. Bolanos-Hernandez, 767 F.2d at 1281; see also Stevic, 467 U.S. at 421 n. 15, 104 S.Ct. at 2496 n. 15.

An alien may be granted asylum if he is unwilling to return to his home country "because of 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. Secs. 1158(a); 1101(a)(42)(A).

We review the factual findings underlying the BIA's denial of withholding of deportation and asylum under the substantial evidence standard. Argueta v. INS, 759 F.2d 1395, 1396 (9th Cir.1985); McMullen v. INS, 658 F.2d 1312, 1316 (9th Cir.1981). The substantial evidence test is essentially a case-by-case analysis requiring review of the whole record. McMullen, 658 F.2d at 1317. Substantial evidence is more than a mere scintilla and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). The reviewing court must consider evidence contravening the agency's determination. McMullen, 658 F.2d at 1318 (citing Carter Products Inc. v. Federal Trade Commission, 268 F.2d 461, 493 (9th Cir.), cert. denied, 361 U.S. 884, 80 S.Ct. 155, 4 L.Ed.2d 120 (1959)).

II Withholding of Deportation

A. The Credibility Findings

This court reviews credibility findings for substantial evidence. Saballo-Cortez v. INS, 761 F.2d 1259, 1262 (9th Cir.1985); see also Zavala-Bonilla v. INS, 730 F.2d 562, 566 (9th Cir.1984). Although an immigration judge's credibility findings are granted substantial deference by reviewing courts, Sarvia-Quintanilla v. INS, 767 F.2d 1387, 1395 (9th Cir.1985), a trier of fact who rejects a witness's positive testimony because in his or her judgment it lacks credibility should "offer 'a specific, cogent reason for [his] disbelief.' " Damaize-Job v. INS, 787 F.2d 1332, 1338 (9th Cir.1986) (quoting Lewin v. Schweiker, 654 F.2d 631, 635 (9th Cir.1981)). We find that the statement of reasons given for rejecting Turcios's detailed testimony inadequate and that substantial evidence does not support the adverse credibility finding.

1. Turcios's Testimony

On direct examination Turcios testified as follows. He was a medical student in San Salvador from 1971 to 1977. He stated that he participated in demonstrations, but was not affiliated with any student organizations and considers himself neutral regarding the guerrillas and the Salvadoran government.

Turcios further testified that on July 20, 1977 he was sitting in a park in San Salvador talking with a university professor known for his leftist views and activities. Armed and uniformed officers of the National Police arrested Turcios and the professor, without asking for identification and without explanation. They were taken to the General Headquarters of the National Police and placed in cells with other political prisoners.

The next day, Turcios testified, he was removed from his cell, blindfolded, and beaten. His interrogators accused him of involvement in guerrilla politics, and although Turcios denied the accusation, he stated that they did not believe him. They continued questioning him about his affiliations with guerrilla groups and asked him to name his companions. To coerce answers, they choked him with a wire, put a gun in his mouth and threatened to fire it, and subjected him to electric shocks. They told him that if he did not cooperate they would kill him and throw his body into the river. They forced him to sign a blank page which he believed the police would use to create a false confession.

Later, Turcios was returned to his cell. Although he was not tortured again, he could hear the screams of other victims. After being held for one month he was transferred to a cell in the basement where he found the professor. They were left without light, clothes, or blankets and were given food and water only once every three days.

Turcios testified that he was not allowed to see his family. Once he saw a friend by chance and was able to send a message to his family. His mother wrote to the Minister of the Judiciary and was told that her son had been convicted and sentenced for participating in guerrilla politics. Turcios testified that he had never appeared before a judge. His family publicized his disappearance and pressed for his release.

Two months after the arrest, the professor began a hunger strike to protest the illegal incarceration and because he had contracted malaria. Turcios and the professor were taken before the Chief of the Judiciary Police. The police later took them to the Guatemalan border at midnight and released them. The police told them that they could reenter El Salvador but not at the same place on the border. Turcios believed he was released in Guatemala to hide the fact that he had been detained in violation of the Salvadoran constitution and to allow the police to tell their families that they had left voluntarily.

Turcios testified that he and the professor walked all day and night to another part of the border. They entered El Salvador at the end of September 1977, avoiding the immigration authorities for fear of another detention. They stayed with a friend of the professor's near the border for three days and then traveled to San Salvador. Turcios testified that he went to see his family because they did not know whether he was still alive and because he needed to see a doctor. In San Salvador Turcios spent two days in the hospital and was treated for dehydration, urinary infection, and nervous problems. He testified that he still has problems with his nerves.

When he first returned to San Salvador, Turcios testified that he found the situation somewhat calmer than before. His anxiety increased, however, as more bombings occurred, and after his neighbors told him that the streets outside his house were full of National Guardsmen at night. He testified that they watched him continuously. He knew that the police targeted political persons and university students and abducted such persons from their houses at night. A friend warned him to be careful and not let the police catch him talking again to the professor. Because he feared arrest and possible death, he obtained a passport and fled the country on March 7, 1978. He believes that if he is returned to El Salvador, he will be arrested and killed because the authorities will find his name in the National Police files.

On cross-examination, Turcios stated he had received both a passport and cedula (apparently an identification card held by all Salvadorans) in 1978, shortly before he fled El Salvador. He traveled through Guatemala and Mexico and entered the United States without inspection in March 1978. He testified he has worked in this country as a bus boy, gardener, painter, and construction worker. The INS arrested him three times. He told them he was Mexican to avoid being sent back to El Salvador. When asked why he never sought a legal visa to enter the United States, Turcios stated it had not occurred to him.

2. The IJ's Credibility Findings

In his oral order the IJ made a general statement that Turcios "did not establish his credibility due to his evasiveness in answering questions." The IJ also based the...