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

• Decision Date: 23 July 1990
• Docket Number: No. 88-7507,88-7507
• Citation: 908 F.2d 1452
• Parties: Jairo Jonathan Elias ZACARIAS, Petitioner, v. U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1452

908 F.2d 1452

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.

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 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.

an advisory letter from the State Department regarding Elias' application. The letter said in relevant part:

This opinion is based on our analysis of country conditions and other relevant factors, plus an evaluation of the specific information provided in the application.

Administrative Record at 86 (emphasis added).

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, 1222-23, 94 L.Ed.2d 434 (1987).

The persecution need not come from the government in order for the alien to obtain relief; it can come from an entity An alien need not actually have suffered persecution in order to qualify for withholding of deportation or asylum. A threat of persecution can be enough. Indeed, with regard to withholding of deportation, the statute expressly speaks in terms of the threat to the alien's life or freedom. INA Sec. 243(h). The threat can be an explicit verbal threat or a threat that is implicit from the circumstances. Artiga Turcios, 829 F.2d at 723. The key question is whether "there is reason to take the threat seriously." Bolanos-Hernandez, 767 F.2d at 1285. If it is "more likely than not" that the threat will be carried out, the petitioner is entitled to withholding of deportation. If there is a "reasonable possibility" that it will be carried out, the petitioner is eligible for asylum. In determining the likelihood that the alien will be persecuted, "we examine the guerrillas' will or ability to carry out the threat, not simply whether threats were made." Rodriguez-Rivera v. INS, 848 F.2d 998, 1006 (9th Cir.1988); Arteaga, 836 F.2d at 1232-33.

                which the government is "unwilling or unable to control."    McMullen v. INS, 658 F.2d 1312, 1315 & n. 2 (9th Cir.1981).  Because nongovernmental groups lack legitimate authority to conscript persons into their armies, their acts of conscription are tantamount to kidnapping and constitute persecution. 5   Arteaga v. INS, 836 F.2d 1227, 1232 (9th Cir.1988);  see also Artiga Turcios, 829 F.2d at 723.    The persecution is properly categorized as "on account of political opinion," because the person resisting forced recruitment is expressing a political opinion hostile to the persecutor and because the persecutors' motive in carrying out the kidnapping is political.  Arteaga, 836 F.2d at 1232 n. 8;  see also Maldonado-Cruz v. INS, 883 F.2d 788, 791 (9th Cir.1989);  Bolanos-Hernandez v. INS, 767 F.2d 1277, 1286 (9th Cir.1984) ("Because [alien] refused to join [guerrillas'] cause, the guerrillas are likely to consider him a political opponent")
                

In Rodriguez-Rivera, the court faced a peculiar factual situation. The applicant, Rodriguez-Rivera, knew and worked with Salvador, the person chiefly responsible for the threats against him. 848 F.2d at 1000. Salvador died shortly after Rodriguez-Rivera fled the country. Salvador was a guerrilla, but, according to Rodriguez-Rivera's testimony, he threatened only that " 'he' (Salvador) would kill Rodriguez-Rivera." Id. at 1006. Salvador did not state or imply that the guerrillas would kill Rodriguez-Rivera, that they had any interest in him, or that they even knew who he was or where he lived; Salvador stated only that he personally wanted to kill Rodriguez-Rivera. Thus, the BIA in that case reasonably could conclude that when Salvador died, the threat he personally presented died with him. Indeed, the court stated that "the fact that Salvador is now dead is the most significant factor supporting the BIA's determination." Id. Obviously, the testimony countering the ordinary inference that Salvador, as a guerrilla, was threatening Rodriguez-Rivera in order to carry out the goals of the guerrillas (as opposed to his own personal goals) was crucial to the outcome of that case. If the guerrillas had been aware of Rodriguez-Rivera's availability as a potential recruit, they could easily have assigned someone...