Del Valle v. I.N.S., 84-7318

• Decision Date: 11 July 1985
• Docket Number: No. 84-7318,84-7318
• Citation: 776 F.2d 1407
• Parties: Salvador DEL VALLE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1407

776 F.2d 1407

Salvador DEL VALLE, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 84-7318.

United States Court of Appeals, Ninth Circuit.

Submitted July 11, 1985. ^*

Decided Nov. 19, 1985.

Jeffrey Portnoy, North Hollywood, Cal., for petitioner.

George H. Wu, Asst. U.S. Atty., Los Angeles, Cal., for respondent.

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

Before ANDERSON and TANG, Circuit Judges, and LEAVY, ^** District Judge.

TANG, Circuit Judge:

Salvador Del Valle petitions for review of a deportation order from the Board of Immigration Appeals (BIA). Affirming the decision of the Immigration Judge (IJ), the BIA determined that petitioner had not established eligibility for withholding of deportation under section 243(h) of the Immigration and Nationality Act (INA), as amended by section 203(e) of the Refugee Act of 1980, 8 U.S.C. Sec. 1253(h) (1982), or for political asylum under section 208(a) of the Refugee Act, 8 U.S.C. Sec. 1158(a).

For the reasons set forth below, we reverse the BIA's denial of relief under section 243(h). Accordingly, we find Del Valle eligible for asylum under section 208(a) and remand to the BIA for a determination of whether to grant that relief.

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner Del Valle is a native and citizen of El Salvador. He came to the United States in December, 1980. During the course of deportation proceedings in March, 1982, petitioner admitted entering the country in violation of section 241(a)(2) of the INA, 8 U.S.C. Sec. 1251(a)(2), and conceded deportability on that basis. He then applied for political asylum under the provisions above.

Petitioner presented the following evidence in support of his asylum claim:

(1) In September, 1980, Del Valle received three notes and phone calls from a right wing group known as the Squadron of Death urging him to join them as informer. (Certified Administrative Record (AR) 206.)

(2) Del Valle testified that on September 8, 1980, his second cousin, Douglas Roberto Ramos Duran, and two other individuals were kidnapped by five men in a white van. (AR 48.) His cousin was a close friend (id.) and lived next door to Del Valle. Soon thereafter Duran was found dead. (Id.) No group took responsibility for the death (AR 49), and Duran had not been involved with guerrilla activity (id.). Duran's mother, Alva Duran Ramos, testified and corroborated this testimony. (See AR 73-75.) Petitioner also submitted a newspaper clipping (AR 183-84) and letters from El Salvador (AR 185-191) corroborating his cousin's death.

(3) After the cousin's death, petitioner received "an invitation" to join the Squadron of Death (AR 49, 67), which he did not accept.

(4) Del Valle testified that on December 2, 1980 around 10 p.m. he was followed home by four men dressed in civilian clothes. These men stopped him near his home and began firing guns into the air. (AR 50, 206.) His grandmother eventually called him inside. (AR 51, 206.) Approximately two hours later, fifteen men broke down the door of his apartment. (AR 51-51, 206.) The men carried machine guns (AR 206) and were clothed in military garb (AR 52, 206). One man asked another whether Del Valle was a member of the Popular Force of Liberation (FPL), a group associated with the guerrillas in El Salvador. (AR 206.) The second man responded affirmatively. (Id.) Del Valle's hands were tied behind his back, he was hit in the stomach, and taken from his home. (AR 53, 206.) He was laid face down in a jeep and taken to the group's "headquarters."

                (AR 53-54, 206.)    There he was blindfolded, interrogated, and beaten.  (AR 54-55, 206.)    He was questioned about involvement with the FLP, which he denied.  (AR 54, 206.)    Afterwards he was left alone for a while, and then transported by jeep to a place Del Valle describes as a police station.  (AR 55-56, 206.)    He spent the night there, and was then released the next day, with the help of a female friend.  (AR 56.)    The testimony of Alva Duran Ramos corroborates this story.  (AR 75-76.)    Del Valle also submitted letters from El Salvador which generally corroborate his capture on December 2, 1980.  (See AR 185-191.)
                

(5) Upon the advice of friends and family, petitioner left El Salvador two days after this incident. (AR 57, 207.) He did not obtain an exit visa from El Salvador. (AR 204A.)

(6) In March, 1981, Del Valle's nephew, Rafael Castillo Del Valle, was violently taken from his home. (AR 58, 207.) The nephew lived at Del Valle's house. (AR 207.) The nephew has not been heard from since that incident. (AR 58, 207.) The nephew was not involved in guerrilla activity. This disappearance is corroborated by Alva Ramos' testimony (AR 77), a newspaper clipping (AR 183-84), and letters from El Salvador (see AR 185-191).

(7) Petitioner states that he has not been involved with guerrilla activity (AR 49), and that he wishes to remain politically neutral in the conflict in his country (AR 69).

(8) Petitioner submitted evidence documenting the violent and unstable conditions of El Salvador at the time of his departure. (See AR 91-181.) Specifically, Del Valle presented documentation that individuals believed linked to groups opposed to the El Salvadoran government had "disappeared" or been murdered (AR 96) and that military force had been used to crush opposition movements (AR 96). Torture and death at the hands of paramilitary "security forces" is also documented. (See AR 99, 101, 103-105, 159).

The IJ denied relief under both asylum sections. On appeal, the BIA found that petitioner's statements were substantially corroborated such that it was satisfied that his allegations were true. Despite this credibility finding, the BIA affirmed the decision of the IJ, reasoning that the most likely explanation for Del Valle's release was that the security forces were convinced that petitioner was not associated with opposition groups, and therefore it was not likely that petitioner would be persecuted if he returned. The BIA concluded that petitioner had not shown a "realistic likelihood" that he would be persecuted if returned to El Salvador.

Del Valle challenges the foundational adequacy of the BIA's findings.

DISCUSSION

I. Legal Framework

Two code sections govern relief from deportation based on the threat of persecution. Section 243(h) of INA, 8 U.S.C. Sec. 1253(h), requires the Attorney General to withhold deportation if an alien's life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion. Section 208(a) of the Refugee Act, 8 U.S.C. Sec. 1158(a), provides for asylum for aliens with a well-founded fear of persecution.

A. Section 243(h): The "Clear Probability" of Persecution Standard

In order to be granted relief from deportation under section 243(h), ¹ an alien must establish:

(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.

(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).

The alien bears the burden of showing a "clear probability" of persecution, INS v. Stevic, 467 U.S. 407, 104 S.Ct. 2489, 2496, 81 L.Ed.2d 321 (1984); Bolanos-Hernandez v. INS, 749 F.2d 1316, 1320 (9th Cir.1984), that is, "whether it is more likely than not that the alien would be subject to persecution," Stevic, 104 S.Ct. at 2498; Bolanos, 749 F.2d at 1320. General evidence of widespread conditions of violence in a country is not in itself sufficient to establish a clear probability of persecution. Id. at 1323 (citing Zepeda-Melendez, 741 F.2d at 290). There must be some evidence that the applicant or those similarly-situated are at a greater risk than the general population, see id. at 1323, and the threat to the applicant is a serious one, id. at 1324.

B. Section 208(a): The "Well-Founded Fear" of Persecution Standard

In order to be eligible for relief under section 208(a), an applicant must show that he or she is a "refugee" within the meaning of section 201(a) of the Refugee Act, 8 U.S.C. Sec. 1101(a)(42)(A). A refugee is a person who has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular group, or political opinion. Id. If an alien qualifies as a refugee, the Attorney General has the discretion to grant asylum under section 208(a). 8 U.S.C. Sec. 1158(a). See 8 C.F.R. Sec. 208.8 (1985) for a list of factors governing the discretion.

We have recently held that the well-founded fear standard is "more generous" than the clear probability standard. Bolanos-Hernandez, 749 F.2d at 1321. Thus, if an applicant establishes that he or she has met the clear probability standard, a fortiori he or she will have met the well-founded fear standard. Id. at 1322. More recently we have established that asylum applicants must present "specific facts" through objective evidence to prove either past persecution or "good reason" to fear future persecution in order to meet the well-founded fear standard. Cardoza-Fonseca v. INS, 767 F.2d 1448, 1453 (9th Cir.1985) (consolidated with Arguello-Salguera v. INS, No. 84-7593) (adopting evidentiary requirements of Carvajal-Munoz v. INS, 743 F.2d 562, 574 (7th Cir.1984)). Documentary evidence of past persecution or a threat of future persecution will usually suffice to meet the "objective component" of the evidence requirement. Cardoza-Fonseca, 767 F.2d at 1453. If documentary evidence is not available, the applicant's testimony will suffice if it is credible, persuasive, and refers to "specific facts that give rise to an inference that the applicant has been or has a good reason to fear that he or she will be singled out for persecution." Id. (quoting Carvajal-Munoz, 743 F.2d at 574)....