Zacarias v. U.S. I.N.S.

• Decision Date: 19 December 1990
• Docket Number: No. 88-7507,88-7507
• Citation: 921 F.2d 844
• Parties: Jairo Jonathan Elias ZACARIAS, Petitioner, v. U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 844

921 F.2d 844

Jairo Jonathan Elias ZACARIAS, Petitioner, v. U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 88-7507.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted March 13, 1990.

Decided July 23, 1990.

Amended Dec. 19, 1990.

Peter A. von Mehren, Wilmer, Cutler & Pickering, Washington, D.C., for petitioner.

Jill E. Zengler, U.S. Dept. of Justice, Washington, D.C., for respondent.

Petition for Review of Three Orders By the Board of Immigration Appeals.

Before FLETCHER, PREGERSON and NELSON, Circuit Judges.

FLETCHER, Circuit Judge:

Elias Zacarias petitions for review of the denial of his application for political asylum

and withholding of deportation. We grant his petition for review in respect to his claim to eligibility for asylum.

PRIOR PROCEEDINGS

Elias fled Guatemala in March of 1987. When he entered the United States in July of 1987, the respondent Immigration and Naturalization Service ("INS" or "Service") apprehended him. He conceded deportability and applied for asylum and withholding of deportation. After a hearing on December 14, 1987 (the "December hearing") before an Immigration Judge ("IJ"), his application was denied. He appealed to the Board of Immigration Appeals ("BIA" or "Board"). The Board summarily dismissed his appeal on procedural grounds. He then moved for reconsideration. The Board denied the motion. He then moved for reopening of his asylum and withholding of deportation claims in light of new evidence; the Board denied that motion also, but excused the prior procedural lapse and gave the merits of his appeal plenary consideration. He now petitions this court for review of all three of the Board's adverse rulings. Because the Board cured whatever mistake it might have made in summarily dismissing the first appeal, we do not review the denial of the motion to reconsider. ¹ We treat the Board's denial of the motion to reopen as both an affirmance of the IJ's ruling after the initial hearing and as a denial of the motion to reopen. ² We hold that the petitioner established eligibility for asylum at his initial hearing, but that the new evidence did not require the reopening of his withholding of deportation claim.

DISCUSSION

We review, in effect, two records in this case. The first is the record that the petitioner made before the IJ at the December hearing. The second is that record supplemented by a letter from the petitioner's father, which was submitted for the first time as an exhibit accompanying his September 28, 1988 petition to the Board to reopen the proceedings.

A. The December Hearing

At the December hearing, Elias testified that one evening in January of 1987, two uniformed guerrillas, carrying machine guns and wearing handkerchiefs to conceal their faces, approached the house where he and his parents lived. They identified themselves as guerrillas, and attempted to persuade him to join their ranks. Elias refused to join, despite their insistence. They told him to "think it [over] well" and said that they would be back. The petitioner, afraid that the guerrillas would come back and "take him," fled Guatemala approximately two months later. ³ He was eighteen at the time.

The record before the IJ at the hearing included, in addition to Elias' testimony, an advisory letter from the State Department regarding Elias' application. The letter said in relevant part:

The applicant alleges fear of persecution because of civil conflict that afflicts parts of Guatemala and has caused various hardships and dangers, including forced recruitment by opposing armed forces.... Persons who flee their homelands due to national armed conflicts in which they are random victims of violence, intimidation, or recruitment are not generally classifiable as refugees under U.S. law.

This opinion is based on our analysis of country conditions and other relevant Administrative Record at 86 (emphasis added).

factors, plus an evaluation of the specific information provided in the application.

The petitioner, of course, does not agree with the State Department's ultimate legal conclusion, but he asserts that the first sentence in the quotation constitutes a recognition by the State Department that both sides in Guatemala's civil war engage in forced recruitment. The INS argues that the sentence merely restates the petitioner's allegations.

We review the Board's factual findings under the "substantial evidence" standard and reverse if the BIA's findings are not substantially reasonable. Artiga Turcios v. INS, 829 F.2d 720, 723 (9th Cir.1987).

Both the face of the letter and the other evidence in the record convince us that the Service's interpretation of the letter is not supported by substantial evidence. The emphasized portion of the letter explicitly says that the State Department independently analyzed country conditions. Moreover, the State Department, in saying that "opposing armed forces" engage in forced recruitment, could not have been merely restating the petitioner's allegations, because nothing in the portion of the petitioner's asylum application reviewed by the State Department alleged forced recruitment by either side in the civil war, let alone both sides. When read in the context of the record as a whole, the letter supports the petitioner's claim that the guerrillas engage in forced recruitment. ⁴

We now consider whether Elias' encounter with the guerrillas, coupled with the fact that the guerrillas engage in forced recruitment, entitles him to eligibility for asylum or withholding of deportation.

To obtain withholding of deportation, a person must show that, if deported to his home country, it is more likely than not that his life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion. Immigration and Nationality Act (INA) Sec. 243(h), 8 U.S.C. Sec. 1253(h); INS v. Stevic, 467 U.S. 407, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). To establish eligibility for asylum, an applicant must show that he has a well-founded fear of persecution on account of at least one of those same five bases. INA Sec. 208(a), 8 U.S.C. Sec. 1158(a); INA Sec. 101(a)(42)(A), 8 U.S.C. Sec. 1101(a)(42)(A). A "well-founded fear" is a fear that is both genuine and objectively reasonable. To be objectively reasonable, there must be some reasonable possibility of persecution, but persecution does not have to be more likely than not. INS v. Cardoza-Fonseca, 480 U.S. 421, 450, 107 S.Ct. 1207, 1222, 94 L.Ed.2d 434 (1987).

The "reasonable possibility" standard derives from the Seventh Circuit's test for determining well-founded fear enunciated in Carvajal-Munoz v. INS, 743 F.2d 562, 574 (7th Cir.1984) ("Sometimes, however, the applicant's own testimony will be all that is available regarding past persecution or the reasonable possibility of persecution."). In INS v. Cardoza-Fonseca, 480 U.S. 421, 440, 107 S.Ct. 1207, 1217, 94 L.Ed.2d 434 (1987), the Supreme Court noted that the "reasonable possibility" standard was a "moderate interpretation" of Section 208(a)'s well-founded fear requirement. Subsequent Ninth Circuit case law has consistently expressed the risk of persecution that must be demonstrated in order to fulfill the objective requirement of To demonstrate a reasonable possibility of persecution under this circuit's law, an applicant must present " 'specific facts' through objective evidence to prove 'good reason' to fear future persecution." Cardoza-Fonseca v. INS, 767 F.2d 1448 (9th Cir.1985) (quoting Carvajal-Munoz v. INS, 743 F.2d 562, 574 (7th Cir.1984)), aff'd, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). This evidentiary burden is met by presenting evidence that is either documentary in nature or, in its absence, testimony that 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.; see also De Valle v. INS, 901 F.2d 787, 790 (9th Cir.1990) ("The objective component requires a showing, by credible, direct and specific evidence in the record, of facts that would support a reasonable fear that the petitioner faces persecution."). Like the "reasonable possibility" standard, this evidentiary standard derives from the Seventh Circuit's test for determining well-founded fear enunciated in Carvajal-Munoz v. INS, 743 F.2d at 574. While the "reasonable possibility" standard defines the risk of persecution that satisfies the objective component of well-founded fear, the "credible, direct and specific evidence" standard mandates the type of evidence that must be proffered to establish it.

                well-founded fear as a "reasonable possibility."    See, e.g., Mendoza Perez v. INS, 902 F.2d 760, 763 (9th Cir.1990) ("To qualify for political asylum, the alien must show that ... persecution is a 'reasonable possibility.' ");    Ramirez Rivas v. INS, 899 F.2d 864, 866 (9th Cir.1990) ("To be objectively reasonable, there must be some reasonable possibility of persecution ..., but persecution does not have to be more likely than not.");    Blanco-Comarribas v. INS, 830 F.2d 1039, 1042 (9th Cir.1987) ("[S]o long as an objective situation is established by the evidence, it need not be shown that the situation will probably result in persecution, but it is enough that persecution is a reasonable possibility.");    Hernandez-Ortiz v. INS, 777 F.2d 509, 513 (9th Cir.1985) ("The objective component is satisfied if persecution is, in fact, a 'reasonable possibility.' ")
                

We note that while the two-pronged formulation of the well-founded fear test, requiring both a subjective component (fear) and an objective component (a reasonability possibility of persecution), is the proper test to be applied in this circuit, other formulations of the well-founded fear test may not be inconsistent with this formulation. Thus, in Canas Cuadras v. INS, 910...