Zayas-Marini v. I.N.S.
| Decision Date | 25 March 1986 |
| Docket Number | ZAYAS-MARIN,P,No. 85-7233,85-7233 |
| Parties | Oscar Ricardoetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Martin Resendez Guajardo, San Francisco, Cal., for petitioner.
Mark C. Walters, Dept. of Justice, Washington, D.C., for respondent.
Petition for Review of an Order of the Board of Immigration Appeals.
Before POOLE and BEEZER, Circuit Judges, and JAMESON, District Judge. *
Oscar Ricardo Zayas-Marini (Marini) has petitioned for review of an order of the Board of Immigration Appeals (the Board) dismissing an appeal from a decision of an immigration judge finding Marini deportable, and denying his application for asylum and withholding of deportation, under sections 208 and 243(h) of the Immigration and Naturalization Act (Act), 8 U.S.C. Secs. 1158 and 1253(h). We deny the petition for review.
On February 16, 1984, the Immigration and Naturalization Service (INS) charged Marini with entry without inspection under section 241(a)(2) of the Act, 8 U.S.C. Sec. 1251(a)(2). 1 Deportation proceedings began February 28, 1984, but were continued to allow Marini to apply for political asylum and withholding of deportation. The proceedings resumed December 26, 1984. Following a two day hearing, the immigration judge held Marini deportable as charged. 2 Marini then appealed to the Board of Immigration Appeals, which in turn dismissed his appeal on April 23, 1985.
Marini testified at length at the hearing, but offered no corroborating evidence. Both the immigration judge and the Board for the purpose of their decisions assumed the truth of Marini's testimony. 3 This court, likewise, assumes its truth.
Marini, a member of a prominent political family, was born in Paraguay on January 9, 1947. Marini's father had assisted Alfredo Stroessner in his political struggle for the presidency of Paraguay in the early 1950's. 4 Marini's family has since maintained close ties with President Stroessner, and other members of the Paraguayan government. 5 Marini fears two Paraguayan officials within the Stroessner government--Pastor Coronel, Chief of Investigations in control of a paramilitary police unit, and Ramirez Patino, Director General of the Water Treatment Program.
Marini began his political involvement at an early age. In high school he led a "section" of the Colorado Party, the ruling political party. Marini joined the military at age sixteen, and upon college graduation, Stroessner appointed him a "major." During this time, Marini allied himself with the right-wing extremist faction of the Colorado Party, the Guion Rojo, a faction not favored by Stroessner. Marini distinguished the two factions by noting the Guion Rojo gives to the people; it does not take from them. Marini testified that he approved of Stroessner's government for about ten years and then began to oppose it. During the 1960's, he personally argued with Stroessner over the government's policies.
In 1972, during his military service, Marini participated in an unsuccessful attempt to assassinate Stroessner at a "fort" where Marini was stationed. Marini's uncle, General Cabello, led the revolt, in which 60 people were killed. The soldiers controlled the fort for 35 days, and thereafter most fled to Argentina. Marini hid at his parents' ranch home and then fled to Europe.
Marini returned to Paraguay in 1973 for a brief stay. Again fearing for his safety, he fled to his grandmother's home in Italy. Thereafter he located in the United States, first working as a gas station attendant and then working for himself as a trader with the People's Republic of China. 6 His family similarly traded with China from Paraguay. Marini travelled extensively during this time under a Paraguayan passport. 7 He obtained visas to visit Korea, Taiwan, Japan and China.
In 1979 Marini again returned to Paraguay to assist his father, after Pastor Coronel confiscated part of the Marini family business. Upon his arrival at the airport in Paraguay, police arrested Marini and jailed him for 31 days. The government released Marini when it was announced that he would marry the daughter of Colonel Myers, President Stroessner's Chief of Security. Pastor Coronel approached Marini on his wedding day. He asked Marini to become involved in a scheme to smuggle coffee beans. Marini refused. He remained in Colonel Myer's home for about two months after his marriage. Police came to the home brandishing weapons, but Colonel Myers' men warded them off. Because he no longer felt safe Marini left Paraguay for the United States. The marriage was annulled. However, Marini and his father-in-law remain on good terms.
While he was in Paraguay, police arrested Marini approximately 30 times, usually for curfew violations or illegal assembly. The military held Marini in 1969 for 20 days, in 1971 for two months, in 1975 or 1976 for 45 days, and finally in 1979 or 1980 for 31 days. The military never brought charges, but only questioned Marini concerning his political activities. There is no indication of physical violence during the detentions.
Even after relocating to the United States Marini maintained associations with Paraguayan officials. In 1980 the Paraguayan government offered him the New York consulate position, but Marini turned it down because it offered an inadequate salary. Marini also attended the Panama Canal ceremonies with President Stroessner. Sometime prior to 1982, the Paraguayan government sent Marini to England to obtain a loan for Paraguay's water system. Marini also stayed with his old professor and good friend, the Ambassador of Paraguay, in Washington, D.C., in 1982.
During his stay with the Ambassador, Marini learned that Ramirez Patino had embezzled part of the loan funds for the water project. When the two men had occasion to meet at the Kennedy Center, Marini accused Patino of embezzlement. A fist fight ensued and Patino brought charges against Marini. 8
Marini has remained in telephone contact with family and officials in Paraguay, as evidenced by phone bills of $6,000 to $7,000 per month. Marini's mother and father are now dead, but his brother and sister still live in Paraguay. His brother continues to operate the family business. His sister is a nun. Police have detained and interrogated Marini's brother following each phone conversation between the two men.
Marini has been warned by several people not to return to Paraguay. His brother and sister have told him to stay in the United States. 9 General Andres Rodriguez, the commander of the cavalry, admonished Marini that it would be better to kill himself than to return home. Marini's father-in-law warned him not to return even under the protection of a "godfather."
Upon reviewing the evidence, the immigration judge noted that Marini possessed a real fear of Coronel and Patino. He ruled, however, that Marini's dispute with these men did not result from a difference of political opinion. Rather, he concluded, it was a personal dispute. The Board agreed. Furthermore, both the immigration judge and the Board noted that Marini did not prove, in light of his close relationship with Colonel Myers and General Rodriguez, that Coronel or Patino possessed sufficient power to kill Marini.
Marini contends that (1) his "hearing on claims of political asylum and withholding of deportation was fundamentally unfair and violated his right to due process when he was denied an interpreter", and (2) the Board was arbitrary and capricious in dismissing his appeal of the immigration judge's order denying political asylum and withholding of deportation.
Marini's present counsel argues that much of Marini's testimony was unresponsive and often incomprehensible, and that an interpreter was required. 10 It is conceded that this issue was not raised before the Board. 11
Subsequent to filing the petition for review in this court, Marini made a motion to reopen proceedings before the Board. The Board recently denied Marini's motion. During oral argument Marini's counsel moved to stay this appeal pending an appeal from the Board's recent decision to deny Marini's motion to reopen proceedings. We denied Marini's motion to stay this appeal, but permitted him to lodge with the clerk the documents in support of his motion to reopen. This opinion does not refer to nor does it rely on any facts presented in the documents lodged in support of the motion to reopen, as those documents were not a part of the proceeding of which Marini seeks review.
The INS regulations specifically require an alien to first present his motion to reopen deportation proceedings before the Board of Immigration Appeals. See 8 C.F.R. Sec. 3.2 (1985) (). Because Marini failed to present his motion to reopen to the Board prior to this appeal, this court will not now consider Marini's claim that he was improperly denied an interpreter. Roque-Carranza v. INS, 778 F.2d 1373, 1373-74 (9th Cir.1985). See also Bagues-Valles v. INS, 779 F.2d 483, 484 (9th Cir.1985); Tejeda-Mata v. INS, 626 F.2d 721, 726 (9th Cir.1980), cert. denied, 456 U.S. 994, 102 S.Ct. 2280, 73 L.Ed.2d 1291 (1982). This court may only review Marini's motion to reopen upon a proper petition for review of the decision of the Board.
The Request for Asylum, filed subsequent to the initiation of deportation proceedings, triggered two separate provisions of the Act--section 208(a), 8 U.S.C. Sec. 1158(a), which grants political refugees asylum, and section 243(h), 8 U.S.C. Sec. 1253(h), which prohibits deportation of an alien subject to political persecution in his own country. Bolanos-Hernandez v. INS, 767 F.2d 1277, 1281 (9th Cir.1985). Because Marini admitted deportability, ...
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