Francisco Lucas RODRIGUEZ-ROMAN, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 95-70230
United States Court of Appeals, Ninth Circuit
Argued and Submitted May 7, 1996. Decided Oct. 9, 1996.
98 F.3d 416
Before REINHARDT, KOZINSKI, and HAWKINS, Circuit Judges.
Opinion by Judge REINHARDT; Concurrence by Judge KOZINSKI; Special Concurrence by Judge REINHARDT and Judge HAWKINS.
Although the purpose of the threats here were to extort money from her father‘s business, those threats were also clearly aimed at Kevin Wynn. She was the one who stood to be harmed if the defendants’ demands were refused. Kevin Wynn was thus directly in the defendants’ line of fire; she was not “incidental” to their plan and announced intentions. The district court committed no error in so finding.
KOZINSKI, Circuit Judge, dissenting in part:
The majority errs in holding that Kevin Wynn was a “victim” of defendants’ conduct under
In United States v. Hoyungowa, 930 F.2d 744 (9th Cir.1991), we vacated a sentence because the district judge interpreted “victim” in an overbroad manner in imposing an upward departure for extreme psychological injury under
The majority argues that this case is controlled by Haggard; in support, it points to a passage where we say that a family was the victim of the defendant‘s crimes because “[the defendant] specifically singled out [the family] as the object of his criminal scheme.” Id. According to the majority, Kevin Wynn was similarly singled out by these defendants. Maj. op. at 413. My colleagues, however, omit the next sentence in the passage quoted: “[Defendant] deliberately and repeatedly lied for the express purpose of affecting [the] family.” Id. Here, there is no evidence that defendants’ purpose was to affect Kevin Wynn. Any effect on her was incidental to the real object of their criminal scheme: To extort money from Steven Wynn and the Mirage Hotel.
Nicole Hampton and Sherri L. Honer (law students), Western State University College of Law, Irvine, CA, for petitioner.*
REINHARDT, Circuit Judge:
Francisco Lucas Rodriguez-Roman, a native and citizen of Cuba, asserts that he left Cuba for political reasons and that, if deported, he would be subjected to prolonged incarceration, and possibly even death, for his unauthorized departure. He seeks review of the Board of Immigration Appeals (BIA) decision denying his requests for withholding of deportation and asylum under sections 243(h) and 208(a) of the Immigration and Nationality Act,
I
Rodriguez, a 36-year-old native and citizen of Cuba who harbored life-long anti-communist beliefs, fled Cuba and entered the United States without inspection in October of 1982. He was born in Havana, where he received a college education and became a teacher. He later joined the merchant marine so that he could plan his escape from the “Communist system and [its] injustices.” After serving as a crew member for several years, during which time he worked on vessels that operated exclusively in Cuban waters, he was finally permitted to sail on voyages into foreign waters. He bided his time, waiting for an opportunity to escape. On his third trip abroad, he jumped ship and fled to the United States, where he applied for asylum on April 15, 1983.
On January 6, 1986, Rodriguez received an order to show cause why his illegal entry should not subject him to deportation. On November 18, 1986, at a hearing before an IJ, he conceded deportability but requested asylum, withholding of deportation, and voluntary departure. The IJ adjourned the hearing to permit him to file an application for asylum.1
Rodriguez based his application for asylum on his illegal flight from Cuba. He described “leaving without [the] permission of the government [...] as ... a serious crime....” He stated that having “escap[ed] the regime,” he had, “in the eyes of the Cuban Communists and in [his] own eyes, demonstrated [his] antipathy for [Cuba], which completely inhibits the exercise of any freedom.” His crime was particularly egregious,2 he explained, because he had “embarrassed the government.” He had received various benefits from the Cuban government—his education and his position as a crew-member—but he “threw these in their face when [he] left the country.” For “going to Mexico and the United States without having permission from the Cuban government,” he stated, he would face imprisonment for 15 to 20 years or a death sentence.
At an August 8, 1990 hearing on the merits, Rodriguez presented extensive evidence in support of his requests for asylum and withholding of deportation. He testified that since his youth he had detested the Communist system and its lack of freedom, and had long planned to come to the United States to live in a free country. He testified that when he became unable to continue working as a teacher, he joined the merchant marine (which, he said, is not considered part of the military) so that he could escape. He stated that by leaving Cuba, he became a traitor in the eyes of the Cuban government, and that traitors are punished with twenty years in prison or death.3 The main thrust of his claim for asylum, he testified, was that he would be incarcerated, or perhaps executed, because of his political beliefs if he were returned to Cuba.
Rodriguez described the consequences his escape has had on his family. He stated that one of his brothers had been arrested and imprisoned for months because the authorities believed he knew of or assisted in Rodriguez‘s flight, and that since his release he has been unable to find work because he was suspected of having helped him. He testified that his two other brothers had lost their jobs as well. He said that his father had been “interrogated” and told that “his son was a traitor,” and had later committed suicide. Finally, he stated that his family had
Two witnesses, both of whom had been political prisoners in Cuba, testified on Rodriguez‘s behalf. The first, Leon Franco, had been imprisoned for nine years. In his affidavit, Franco explained that only a person who has the confidence of the Cuban government is granted the right to travel abroad, and stated that if a person granted that right were to defect, “asking for political asylum in a foreign country and later moving to the United States,” he would be “classified” as an “ENEMY OF HIGH DANGER,” tried before the Court of Crimes Against State Security, and sentenced to between three and twenty years.4 Such a person, he stated, would “spend many years in prison for the crime of looking for FREEDOM.”
At the hearing, Franco explained that he based his opinions on his observation of inmates who had left Cuba without permission and his conversations with them while in prison. He testified that Rodriguez, if returned, would be considered a traitor, incarcerated, and singled out for harsh treatment. He stated that inmates considered to be traitors were forced to share cells with deranged and violent inmates who might kill them. He also explained that while some traitors were incarcerated for from three to twenty years, others were subjected to indefinite sentences or shot. Last, he stated that the authorities also subjected traitors to a “moral death,” subjecting them to abuse and denying them visits and medical attention.
The second witness, Romero Menendez, had been imprisoned for five years. He testified that while in prison he had met many inmates whose only crime was attempting to escape Cuba. He stated that those inmates were treated worse than the general population of the prison. Although he had not witnessed the killing of any inmates considered to be traitors, he said that many had “disappeared.”
In an order dated August 9, 1990, the IJ denied Rodriguez‘s application for asylum. He reached several preliminary conclusions. First, he noted Rodriguez‘s testimony that he “harbored life-long anti-Communist sympathies,” and concluded that Rodriguez fled Cuba “due to his political beliefs.” Second, he noted that Rodriguez feared that, if returned to Cuba, he would be “arrested for illegally leaving the country, desertion and treason,” and found that Rodriguez had established “a clear probability of being arrested for these crimes.” Last, he noted Rodriguez‘s fear that he would receive a lengthy sentence, as well as the testimony of Rodriguez‘s witnesses regarding the treatment of traitors, the report by Amnesty International, and the opinion of the State Department,5 and described the punishment that Rodriguez would face, if returned, as “harsh, if not fatal.”
The IJ determined, however, in a Kafkaesque decision, that Rodriguez “would not be punished for his beliefs, but for committing crimes against the socialist state of Cuba.” He properly construed the gravamen of Rodriguez‘s claim to be that prosecution for illegal departure “would be tantamount to persecution for political opinion.” He had no doubt that the laws Rodriguez violated were, at least in part, politically motivated. However, that did not mean, he concluded, that those “laws become unenforceable as political persecution.” Although the sentences in Cuba for illegal departure “appear[ed] to be harsh,” he stated with stunning bureaucratic logic that he could not “take on the burden of assessing criminal penalties in a foreign country in the guise of political persecution.” It is not surprising in light of this reasoning that he cited as an example of national attitudes toward the type of “crime” committed
On December 1, 1994, in a per curiam opinion, the BIA affirmed the IJ‘s decision and dismissed Rodriguez‘s appeal. After conducting an independent examination, reviewing the “contentions on appeal, the record of proceedings, and the immigration judge‘s decision,” it affirmed, “based upon and for the reasons set forth in that decision.” Despite having expressly adopted the opinion of the IJ, the BIA wrote three paragraphs of its own regarding Rodriguez‘s requests for asylum and withholding of deportation. Exclusively citing cases involving desertion from military service, and emulating the tone set by the IJ, the BIA concluded that “whatever problems [Rodriguez] may encounter as a result of his illegal departure and desertion from the merchant marine will be the result of prosecution for violating the laws of Cuba, and that [those problems] will not constitute ‘persecution.‘” Accordingly, the BIA “reasoned” that Rodriguez had not shown that a reasonable person in his circumstances would fear persecution, and as a result, that he was not eligible for either asylum or withholding of deportation.7
On January 3, 1995, Rodriguez, on the advice of prior counsel, mistakenly sent a pro se petition to the Eleventh Circuit instead of to this court. Because venue was improper in the Eleventh Circuit, the pro se petition was at some point returned to him by the clerk of that court. He then filed a petition in this court on March 20, 1995.
II
By the time Rodriguez filed his petition for review with this court, ninety-nine days after the BIA had issued its decision, the petition was not timely. See
“Jurisdictional defects that arise when a suit is filed in the wrong federal court may be cured by transfer under the federal transfer statute,
[w]henever a civil action is filed in a [federal] court ... or an appeal, including a petition for review of administrative action, is noticed for or filed with such a court and that court finds that there is a want of jurisdiction, the court shall, if it is in the interest of justice, transfer such action or appeal to any other such court in which the action or appeal could have been brought at the time it was filed or noticed, and the action or appeal shall proceed as if it had
been filed in or noticed for the court to which it is transferred on the date upon which it was actually filed in or noticed for the court from which it is transferred.
The government contends that for this court to have jurisdiction, the Eleventh Circuit must have transferred Rodriguez‘s petition. This contention is explicitly contradicted by Clark, Kolek, and McCauley, which permit the lack of jurisdiction to be cured under § 1631 even if a case was not actually transferred, so long as it is transferable. In two of those cases, Kolek and McCauley—the two in which we concluded that the “interest of justice” test was met—we deemed the cases transferred even though the courts in which they were filed did not, themselves, act to transfer them.
The government also contends that Kolek and McCauley are inapplicable because they involved cases deemed transferred from district courts within our circuit, while this case involves a case that we would have to deem transferred from one court of appeals to another. This argument is, at least in this case, without merit.
First, the statute draws no distinction between district courts and circuit courts. Section 1631 refers to transfer of a civil action or an appeal filed in a court as defined in § 610 to any other such court in which the action or appeal could have been brought at the time it was filed or noticed. Section 610, in turn, defines “court” to include, among others, courts of appeal and district courts of the United States. See F.D.I.C. v. McGlamery, 74 F.3d 218, 220 (10th Cir.1996) (stating that district court could transfer “an action to any other court in which the action could have been brought if the court finds there is a want of jurisdiction and if the transfer is in the interests of justice“) (emphasis added).
Second, given the statute‘s remedial purpose of eliminating the risk of filing in the wrong court, see In re McCauley, 814 F.2d at 1351-52; Alexander v. Commissioner of Internal Revenue, 825 F.2d 499, 501 (D.C.Cir. 1987), we do not believe that the identity of the court in which a petition or appeal is erroneously filed is relevant. The purpose of the statute is “to ‘aid litigants who were confused about the proper forum for review,‘” McCauley, 814 F.2d at 1352 (citation omitted), and to prevent any prejudice from such confusion when it is in the interests of justice, see Alexander, 825 F.2d at 501 (quoting 128 Cong. Rec. 3572 (1982)) (stating that “‘a case mistakenly filed in the wrong court [should] be transferred as though it had been filed in the transferee court on the date on which it was filed in the transferor court’ “). That purpose is served regardless of whether a litigant makes a mistake between a district court and a circuit court or between two circuit courts.
The government offers no reason why we should deem a case transferred from one court but not from another or, to put it slightly differently, why we should now limit the rule that “transferability” is sufficient, so that it applies only to some transferor courts and not to others. We find only one reason for such a possible limitation noted in any case—and that in a case not cited by the government. The First Circuit has suggested a reluctance to overrule a decision issued by another circuit which has denied a transfer request. See Howitt v. United States Dep‘t of Commerce, 897 F.2d 583, 584 (1st Cir.), cert. denied, 498 U.S. 895, 111 S.Ct. 244, 112 L.Ed.2d 203 (1990) (finding no legal authority that would permit one circuit to review another circuit‘s decision not to transfer a case, but concluding that even if there were such authority, the case was sufficiently weak on the merits that transfer was not “in the interests of justice“). While in Howitt the Federal Circuit ordered the case dismissed, apparently without expressly discussing the transfer issue, the First Circuit made it plain that what it was concerned about was
To the extent that there is any concern about offending the dignity of a co-equal circuit, that concern is not implicated in the present case. Because the petition was returned to Rodriguez by the clerk of the court and never actually filed in the Eleventh Circuit, that court never considered or decided the transfer issue. Accordingly, we are not called upon to review or overrule, directly or indirectly, a transfer decision of the Eleventh Circuit, or even a decision to dismiss. Instead, the question before us is whether in light of the clerk‘s failure to file the petition, we should now deem it filed and transferred. We conclude that the answer is yes.
As to the first part of the inquiry—whether the petition should be deemed filed—we note preliminarily that while the administrative record is unclear as to whether Rodriguez‘s petition was actually filed in the Eleventh Circuit, a review of the records of the Eleventh Circuit demonstrates conclusively that it was not, and that no docket number was assigned to it. It appears that the clerk of the court simply returned the petition to Rodriguez when it was discovered that Rodriguez had submitted it to the wrong circuit for filing. Indeed, that is how Rodriguez has described what occurred. When directed to show cause why his petition should not be dismissed for lack of jurisdiction, he explained that he incorrectly submitted his petition to the Eleventh Circuit and that it was returned to him. The government does not contest this statement or raise any factual issue regarding it. Accordingly, we find that the petition for review was timely submitted for filing in the Eleventh Circuit and subsequently returned to Rodriguez by the clerk.
The general rule is that when the clerk of the court mistakenly rejects papers8 or fails to act on them, they are deemed filed on the date on which the clerk first had possession of them. See Smith v. Frank, 923 F.2d 139, 141 (9th Cir.1991) (noting the general rule that papers and pleadings as well as notices of appeal are considered filed “‘when they are placed in the possession of the clerk of the court‘“) (quoting Cintron v. Union Pac. R. Co., 813 F.2d 917, 920 (9th Cir.1987) (quoting 4A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1153 (1969))); cf. Forelaws on Board v. Johnson, 743 F.2d 677, 680 (9th Cir.1984), cert. denied, 478 U.S. 1004, 106 S.Ct. 3293, 92 L.Ed.2d 709 (1986) (“Our clerk‘s mistaken rejection of the complaint when it was timely offered should not bar its consideration, and it should be deemed timely filed.“). The difference here, of course, is that the clerk may well have been free under the rules of the Eleventh Circuit to return the petition rather than to file it, even though, as a result, the court was deprived of the opportunity to exercise its statutory authority to determine whether to transfer the case to this court. The difference is of no consequence here.
The purpose of the statute, as we stated earlier, is to aid litigants who were confused about the proper forum for review. It contemplates that those litigants who submit papers for filing in the wrong court will suffer no prejudice as a result of the error, if transfer is in the interests of justice. The statute would be frustrated if we deprived a litigant of its benefits simply because the clerk of the court made the determination that his papers were submitted for filing in the wrong court.9 Indeed, it is only when such an error occurs that the statute applies, and it is only then that the statute requires that the court determine whether transfer is appropriate. Accordingly, for purposes of the transfer statute, we deem the petition to have been filed when Rodriguez submitted it to the clerk of the court.10
First, the BIA issued its decision on December 1, 1994, and Rodriguez filed his petition for review with the Eleventh Circuit on January 3, 1995, well within the ninety-day statutory period. See
Second, for purposes of the transfer statute, a court lacks jurisdiction if venue does not lie. See Dornbusch v. Commissioner of Internal Revenue Svc., 860 F.2d 611, 615 (5th Cir.1988) (per curiam) (holding that where a court has jurisdiction but lacks venue, it may transfer a case to a court of appeals of proper venue under the federal transfer statute or its inherent authority). A contrary construction would undermine the statutory purpose of eliminating “the risk of filing in the wrong court.” Dornbusch, 860 F.2d at 614. Congressional intent is clear: “‘a case mistakenly filed in the wrong court [should] be transferred as though it had been filed in the transferee court on the date on which it was filed in the transferor court.‘” Alexander, 825 F.2d at 501 (quoting 128 Cong. Rec. 3572 (1982)).
Last, a transfer of Rodriguez‘s petition serves the interests of justice. See Kolek, 869 F.2d at 1284. In Kolek, this court found transfer in the interests of justice where the appellant‘s “errant filing was caused in part by his pro se status, lack of fluency in English, and inability to access legal research materials in prison.” Id. Here, Rodriguez, a refugee who lacks fluency in English, filed his pro se petition in the Eleventh Circuit in good faith. He did so relying on the mistaken advice of prior counsel, and when he learned of his mistake, he filed a petition for review with this court. This alone would be sufficient to meet the requirement. In addition, here, were we not to hear Rodriguez‘s petition, he would be time-barred from seeking review. See Pearce v. Director, Office of Workers’ Compensation Programs, 603 F.2d 763, 771 (9th Cir.1979) (finding, under its inherent authority, that case should be transferred where petitioner‘s claims would probably be time-barred if the case were dismissed). That, too, would be sufficient, in itself. Finally, we may in cases that would otherwise qualify, decline to transfer if the petition or appeal is frivolous. See Clark, 959 F.2d at 814 (“Where no colorable claim for relief has been shown, transfer is improper.“). Here, Rodriguez‘s claim is not only colorable; he is entitled to prevail on the merits. Were we not to deem his petition transferred, Rodriguez would be deported and face persecution in Cuba. In such circumstance, we would violate the purpose of the statute, with its interests of justice standard, if we failed to deem the petition transferred.
Accordingly, we deem Rodriguez‘s petition for review to have been transferred to this court and proceed to address the merits. See Kolek, 869 F.2d at 1284; In re McCauley, 814 F.2d at 1352.
III
The principal issue in determining Rodriguez‘s eligibility for asylum and withholding of deportation is whether the punishment Rodriguez faces upon his return to
In rejecting Rodriguez‘s claim of persecution, the IJ and the BIA relied exclusively on the fact that Rodriguez had violated Cuba‘s laws in leaving the country and remaining abroad without authorization.11 They acknowledged that there was a clear probability that Rodriguez would be prosecuted if he were returned to Cuba. They concluded,
In deciding whether prosecution and incarceration for illegal departure can constitute persecution, we are guided by the Handbook, which is “published by the Office of the United Nations High Commissioner for Refugees ... for the purpose of providing guidance to governments about ‘procedures and criteria for determining refugee status.‘” Canas-Segovia v. INS, 902 F.2d 717, 722, 724 (9th Cir.1990) (quoting Handbook at 1), vacated, 502 U.S. 1086 (1992), on remand, 970 F.2d 599 (9th Cir.1992). “Both the Supreme Court and this court have looked to the Handbook in determining refugee status, and consider it to be authoritative on the subject.” Id. at 724.13
The Handbook specifically addresses the question raised in this petition and the rule it sets forth is directly contrary to the legal conclusion reached by the IJ and the BIA. In a section interpreting the term “well founded fear of persecution,” it explains whether, and under what circumstances, the “consequences of unlawful departure or unauthorized stay outside country of origin” may constitute persecution. Handbook ¶ 61, at 16. Paragraph 61 reads:
The legislation of certain States imposes severe penalties on nationals who depart from the country in an unlawful manner or remain abroad without authorization. Where there is a reason to believe that a person, due to his illegal departure or unauthorized stay abroad[,] is liable to such severe penalties[,] his recognition as a refugee will be justified if it can be shown that his motives for leaving or remaining outside the country are related to the reasons enumerated in Article 1 A(2) of the 1951 Convention [i.e., reasons involving race, religion, nationality, membership of a particular social group or political opinion]....
Id.15 Accordingly, an alien qualifies as a refugee under the Handbook if he can demonstrate that he would be subject to severe penalties for his illegal departure or unauthorized stay abroad and that he left or has remained abroad on account of race, religion, nationality, membership in a particular social group, or political opinion.16
Likewise, the general rule—that prosecution for an act deemed criminal and made applicable to all of a country‘s citizens is not persecution—is inapplicable here. That rule and its exceptions were derived from the Handbook as well. See Abedini v. INS, 971 F.2d 188, 191-92 (9th Cir.1992) (stating that persecution may be established where the generally applicable law as applied to the petitioner would be “especially unconscionable” or “merely a pretext to persecute him” on account of one of the enumerated grounds) (citing Handbook ¶ 85, at 20, which states that prosecution may be a pretext for punishing an offender for his political opinions and that a political offender may be exposed to excessive or arbitrary punishment, in which case the punishment will amount to persecution). As the Handbook‘s individual treatment of the crime of illegal departure makes clear, that crime is sui generis and should not be treated in the same manner as other crimes. To apply the rule regarding ordinary prosecutions in cases involving the crime of illegal departure would contradict the Handbook‘s individualized treatment of illegal departure. Moreover, we note that Abedini did not overrule Kovac, which, as we explain below, sets forth the separate rule for illegal departure that is now contained in the Handbook. Finally, in Fisher, we cited Abedini and Kovac together as illustrations of the precedent
Not only are the decisions of the IJ and the BIA in this case directly contrary to the principles set forth in the Handbook but they are also directly contrary to both court and BIA precedent. Kovac v. INS, 407 F.2d 102 (9th Cir.1969), Sovich v. Esperdy, 319 F.2d 21 (2d Cir.1963), and In re Janus & Janek, 12 I. & N. Dec. 866 (BIA 1968) are all cases that specifically address punishment for the crime of illegal departure. These cases, singly and collectively, stand for the proposition that punishment for the crime of illegal departure constitutes persecution when the punishment would be severe. See also Coriolan v. INS, 559 F.2d 993, 1000 (5th Cir.1977) (“If the immigration judge meant to assert that prosecution for the offense of illegal departure can never amount to political persecution, his view was inconsistent with decisions both of the courts and of the INS itself.“) (citing, among other cases, Kovac and Janus & Janek).17
In our Kovac case, the petitioner defected from Yugoslavia and sought asylum in this country. He argued that having done so, he would face a long confinement and be subjected to physical abuse if he were returned, because his action “‘would be considered open defiance and denunciation of Communism.‘” Kovac, 407 F.2d at 104. In concluding that the BIA erred in denying Kovac‘s claim for asylum, we stated that “Congress did not intend to make the United States a refuge for common criminals, but it did intend to grant asylum to those who would, if returned, be punished criminally for violating a politically motivated prohibition against defection from a police state.” Id. (emphasis added). We pointed to the BIA‘s determination that an alien was eligible for relief if he could show that his departure was politically motivated and that the consequences he would face, albeit as a result of criminal prosecution, were political in nature. Id. (citing Janus & Janek, 12 I. & N. at 876).
In so ruling, we were guided by Sovich, in which the Second Circuit held that the Attorney General had erred in ruling that imprisonment for illegal departure from a foreign country could never constitute persecution. In Sovich, the petitioner fled Yugoslavia and feared that, if returned, he would be punished for his illegal departure. The court began its analysis by noting that punishment following conviction for a crime cognizable under a recognized juridical system ordinarily does not constitute persecution. But, the court cautioned, “[t]he memory of Hitler‘s atrocities and of the legal system which he corrupted to serve his purposes ... are still too fresh for us to suppose that physical persecution may not bear the nihil obstat of a ‘recognized juridical system.‘” Id. at 28.
Having found that punishment for some crimes could constitute persecution, the Second Circuit then addressed punishment for illegal departure and concluded that punishment for that crime, if severe, constitutes political persecution. It found that punishment for illegal departure was political in nature. It stated:
General prohibitions against departure from a country do not, of course, define traditional crimes in Western societies. They are the product of modern dictatorships able to control long borders and the movements of their people within them....
Devotees of such regimes do not risk life and limb to violate statutes prohibiting
departure. It would be naive to suppose, therefore, that punishment for illegal departure, under these circumstances, is not politically motivated, or does not constitute punishment “because of ... political opinion.”
Id.18 The court recognized, however, that not every punishment for illegal departure would constitute persecution, because “[a]owever repugnant to our own concept of justice, a brief confinement for illegal departure or for political opposition to a totalitarian regime would not necessarily fall within the ambit of Congress‘s special concern in enacting [§ 243(h)].” Id. at 29. Nonetheless, the court was “unwilling to believe ... that Congress ha[d] precluded from relief ... an alien threatened with long years of imprisonment, perhaps even life imprisonment, for attempting to escape a cruel dictatorship.” Id. “Such a construction of the statute,” the court concluded, “would attribute to Congress an insensitivity to human suffering wholly inconsistent with our national history.” Id.19
The BIA itself has likewise recognized that punishment for illegal departure can constitute political persecution. In Janus & Janek, which we also relied on in Kovac, the BIA found that both petitioners were entitled to withholding of deportation. Both had been convicted in absentia for leaving Czechoslovakia illegally; Janus had been sentenced to a one-year term of imprisonment and his property had been confiscated, while Janek had been sentenced to eight months in prison. The BIA recognized that “[t]he act of defection normally has political, rather than criminal connotations.” Janus & Janek, 12 I. & N. Dec. at 873. Of Janus, it stated:
Jaroslav Janus left Czechoslovakia because of his disagreement with the Communist system; he left with the intention of never returning.... He is genuinely afraid of reprisals by the Czech government if he should be forced to return, not simply because he has remained away longer than authorized, but because he, a member of the Communist Party in good standing, entrusted with the mission of propagandizing for the Communist government in the United States, showed his true political sentiments by defecting. The punishment imposed upon him by the Czech court ..., including not only the sentence to imprisonment but, on his very first offense of any kind, the confiscation of all his property; the severity with which that confiscation was carried out ...; the concern ... with defection from the Republic, and with the denigration of the good name of the Czechoslovak Republic; all of these factors persuade us that what would await Jaroslav Jan[us] upon his return to Czechoslovakia would not be punishment for violation of an ordinary criminal statute ..., but persecution for the political offense which he has committed against the State.
Id. at 875 (emphasis added). The BIA therefore recognized that a petitioner who, having fled his native country for political reasons, faces severe punishment for the crime of illegal departure should not be deported to that country.20
I do not see how the rulings of the Special Inquiry Officer and the Regional Commissioner can mean anything other than that imprisonment for illegal departure may never constitute “physical persecution.” If this is so, the construction thus given to the statute is not only utterly repugnant to our national traditions and history, it is also patently inconsistent with the intention of Congress in enacting Section 243(h). A decision based upon such a misreading of the law must necessarily be capricious and arbitrary.
Sovich, 319 F.2d at 30 (Medina, J., concurring).
The law in this circuit remains as it was when laid down in Kovac. The interpretation we reaffirm today incorporates the principles set forth in Sovich, the BIA‘s decision in Janus & Janek, and the Handbook. A petitioner may establish persecution within the meaning of the statute if he can show that he left or remained away from his homeland for political reasons and that, if returned, he would be subject to severe punishment, whether as the result of criminal prosecution or otherwise.
IV
Although neither the IJ nor the BIA mentioned the case in their decisions, the government now contends that INS v. Elias-Zacarias, 502 U.S. 478, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992) requires a different result. Its argument is incorrect. Our holding fully comports with the requirement in Elias-Zacarias that an asylum applicant establish his persecutor‘s motive—that he show that he would be persecuted on account of his political opinion. Id. at 483, 112 S.Ct. at 816-17. The Second Circuit stated the proposition unequivocally: “It would be naive to suppose ... that punishment for illegal departure ... is not politically motivated, or does not constitute punishment because of ... political opinion.” Sovich, 319 F.2d at 28.23 Because the crime is intended to punish those who exhibit a grave form of disloyalty to their homeland, we simply acknowledge here what should by now have been apparent to all: that a state which severely punishes unlawful departure views persons who illegally leave as disloyal and subversive and seeks to punish them accordingly. Thus, the motive that a petitioner must show on the part of the state is initially established on the face of a statute that criminalizes illegal departure. To put it in different terms, the statute imputes to those who are prosecuted pursuant to it, a political opinion that the state believes warrants an extreme form of punishment.24
While an applicant who has shown that he would face severe punishment for the crime of illegal departure might appear on that basis alone to have established persecution on account of political opinion, the cases that dictate our result and the Handbook have applied a more stringent test. Relief has not been granted solely on the basis of the persecutor‘s motive to punish on account of political opinion. Instead, the petitioner must prove that he is one of the persons at whom the illegal departure statute was directed—persons who flee their homeland for political reasons. See Kovac, 407 F.2d at 104 (stating that an alien must show “‘that his departure was politically motivated and that any consequences he faces on return are political in nature’ “) (quoting Janus & Janek, 12 I. & N. at 876); Janus & Janek, 12 I. & N. at 876 (“A person whose departure from a [...] country is devoid of political motivation ... is not entitled to [relief] on the basis that he may face criminal prosecution for overstay.“); Handbook ¶ 61, at 16 (requiring that alien leave the country or remain abroad on account of political opinion or one of the other enumerated grounds to establish persecution on the basis of punishment for illegal departure). Thus, severe punishment is deemed to be persecution only when the petitioner left his country or remained abroad and would face severe punishment for illegal departure.
V
Having determined that an asylum applicant who left his country because of his political opinions and who faces severe punishment for the crime of illegal departure has established that he is subject to persecution on account of political opinion, we now apply these principles to Rodriguez‘s case. We consider his petition first under the more stringent clear probability of persecution
The IJ labelled the punishment that Rodriguez would face as “harsh, if not fatal.” We find that this conclusion is fully supported in the record. Rodriguez presented compelling evidence that the term of imprisonment he would face for illegal departure would be prolonged, possibly as long as twenty years, and that he could face death.25 Indeed, as we noted earlier, the IJ and the BIA expressly acknowledged the possibility of death as a punishment, and stated that this did not affect their analysis. Thus, we conclude that Rodriguez established a clear probability that he would face severe punishment for the crime of illegal departure.
The State Department‘s report that the sentence for persons convicted of unlawful departure from Cuba is likely to be three years does not alter our analysis. Three years in prison for having left one‘s country is under the case law undeniably a severe
Finally, we note that the sentence becomes all the more severe when we consider the treatment Rodriguez would likely face in jail. The record establishes that given the relatively privileged status Rodriguez enjoyed in Cuba, including the privilege of travelling abroad, his “crime” of illegal departure would be considered a treasonous act and he would be labelled a “traitor.” As a result, Rodriguez would likely face particularly harsh conditions of imprisonment, including, among other things, cell assignments with the most unstable and violent of inmates, and the denial of medical care. Moreover, he might, like others before him, simply “disappear.” The evidence regarding the conditions Rodriguez would likely face in prison and the possibility of his execution is uncontroverted.27
For the reasons stated, we GRANT the petition for review, VACATE the BIA‘s denial of withholding of deportation and asylum, with instructions that Rodriguez be granted withholding of deportation, and REMAND for a determination in the exercise of the Attorney General‘s discretion as to whether he is entitled to asylum.
PETITION GRANTED; VACATED and REMANDED.
KOZINSKI, Circuit Judge, concurring.
Judge Reinhardt‘s opinion, with which I generally agree, demonstrates the importance of independent judicial review in an area where administrative decisions can mean the difference between freedom and oppression and, quite possibly, life and death.
What happened in this case at the administrative level is chilling. Rodriguez, a refugee from Communist Cuba, established that, if returned to his country, he might be shot, imprisoned for many years or simply made to “disappear.” These are not fantasies. Communist countries are known for their brutality in stemming emigration; this brutality is inevitable because Communism so undermines human dignity and economic prosperity that any Communist country that opened its borders would soon be depopulated. Vicious punishment for emigration offenses is thus a means of enforcing political allegiance to governments unable to inspire loyalty by more conventional means.
None of this is new or controversial; the West has known of this seamy practice at least since the early 1960‘s, when East Germany was first observed shooting its citizens for trying to scale the Berlin Wall.
Where the Immigration Judge and the BIA went astray is in accepting the Newspeak used by the Cuban government to camouflage its atrocities. Rather than admitting that it must cling to its own citizens by brute force, the Cuban government adopts the fairy tale that its citizens, with the exception of a few “traitors” and “deserters,” are happy to live under Communism. In so doing, the Cuban government co-opts the use of those terms and subverts them to its own nefarious ends.
Treason, as that term is commonly understood, involves betrayal of one‘s country by disclosing national security secrets to its enemies or otherwise giving them material aid and comfort, especially in time of war. “Desertion” involves leaving one‘s military post in time of war. Rodriguez carried away no military secrets; he did not abandon a combat post; he did not attempt to undermine the Cuban government in any way. All Rodriguez wanted was a chance to live his life, and raise his family, in a place where the government serves the people, not vice versa.
Against this backdrop—which should be self-evident to anyone who has lived through the Cold War—the IJ‘s discourse on how Cuba‘s repressive laws are of a mold with the practice of civilized nations is nothing short of bizarre. The judge stated:
In socialist Cuba illegal exit, desertion and treason are all crimes. The latter two are also crimes in the United States.... Certainly, any government when it passes laws has a political objective as part of the motivation for the statute. I have no doubt that the laws which the respondent violated in Cuba were, in part, politically motivated for reasons best known to the government of Fidel Castro. However, in
my opinion that does not mean that these laws become unenforceable as political persecution. ....
The Court will concede that sentences [for treason and desertion] appear to be harsh in Cuba[;] however, the Court is also mindful of the fact that our own government has imposed the severest of sentences for desertion in war time upon deserters of its military service. For example, during the closing stages of World War II and at the direction of no less a figure than General of the Army and later to be President Dwight David Eisenhower, Private Slovik was executed for desertion. He was sent before a firing squad with Eisenhower‘s approval.
It is true from the literature that executions continue in Cuba today. They have, however, in later years diminished. Nevertheless, this Court cannot take on the burden of assessing criminal penalties in a foreign country in the guise of political persecution. The penalty for treason has always been severe. For example, in 17th Century England, the penalty for treason[,] which generally was an assault upon the monarch, was hanging, drawing and quartering. That, be it remembered, was in a civilized country.
Supplementary Oral Decision of the Immigration Judge, Aug. 9, 1990, at 5-7.
I do not mean this as a general indictment of the INS, an agency of the United States Government toward which I feel respect and gratitude. When my family and I arrived in this country—also refugees from Communism—we were treated by the INS with dignity and compassion. I believe that the great majority of those who deal with the agency have similar experiences. But agencies are run by people and people make mistakes. Review by a tribunal outside the agency helps correct these rare but tragic errors. In the case of Rodriguez, this may mean the difference between life and death; the effort is surely worth the candle.
REINHARDT and HAWKINS, Circuit Judges, specially concurring.
Judge Kozinski‘s concurrence contains much that is personal and that reflects his
There is one part of the concurrence, however, which is not personal and which we feel compelled to join. Judge Kozinski emphasizes “the importance of independent judicial review” in asylum cases. We agree wholeheartedly. In the absence of judicial review, grave injustices could take place for which our government and our people would have to bear the moral responsibility. These injustices might, as Judge Kozinski suggests, ordinarily be few in number, but, in some periods of history they could be many indeed.
Those of us who are familiar with the infamous episode in which we turned away hundreds, if not thousands, of Jewish refugees crowded on the decks of the Saint Louis, many of whom subsequently perished in Hitler‘s concentration camps, understand the importance of treating the problem of political and religious refugees with sensitivity, compassion, and care. On some occasions, government agencies may not take the most objective view of particular cases, for reasons ranging from partisan or political concerns or biases to the human consequences of an unmanageable or overburdensome caseload. Courts may err also, but the additional level of review is a safety mechanism designed to catch at least the most egregious of the inevitable human errors.
As Judge Kozinski‘s concurrence makes clear, judicial review of asylum cases may mean the difference between life and death for refugees from tyranny or from religious or racial persecution. As a nation that proclaims its strong belief in the importance of human life and political freedom for all peoples, that should be enough to persuade us of the necessity of judicial review.
STEPHEN REINHARDT
UNITED STATES CIRCUIT JUDGE