Juan A. MALDONADO-CRUZ, a/k/a Hugo Deras-Espinoza, Petitioner, v. U.S. DEPARTMENT OF IMMIGRATION AND NATURALIZATION, Respondent.
No. 88-7036.
United States Court of Appeals, Ninth Circuit.
Decided Aug. 24, 1989.
883 F.2d 788
This case also raises the question whether the amended commentary may constitutionally be applied to conduct that occurred before the effective date of the amendments. If Restrepo furnished drugs to Maldonado before January 15, 1988, the effective date of the amended Guidelines, and those quantities were considered in the sentencing, I believe that an ex post facto question may be involved. See Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987). A difficult constitutional question would be presented as to whether the amended commentaries would be considered “laws” for purposes of the ex post facto clause. See Vermouth v. Corrothers, 827 F.2d 599, 604 (9th Cir. 1987) (parole guidelines established by the Parole Commission were not “laws” for purposes of the ex post facto clause). Before attempting to resolve that difficult constitutional issue, however, it would be necessary to remand to the trial court for a determination of the exact dates when Restrepo furnished drugs to Maldonado. I, therefore, would remand the case to the trial court for that purpose.
Steven M. Rosenthal, Wilmer, Cutler & Pickering, Washington, D.C., for petitioner.
Marshall Golding, Washington, D.C., for respondent.
Before WALLACE, TANG and SCHROEDER, Circuit Judges.
Juan A. Maldonado-Cruz (“Maldonado“) petitions for review a decision of the Board of Immigration Appeals (“BIA“) affirming the denial of political asylum and withholding of deportation. Because the decision of the BIA was incorrect as a matter of law, we reverse.
I. Factual Background
Maldonado had been employed as an agricultural worker near his hometown of La Reyna which is located in northern El Salvador. One day in the fall of 1983, while Maldonado was working in the fields, a guerrilla group consisting of approximately twenty-five men apprehended Maldonado and forced him to go to the guerrilla camp. At the camp, Maldonado was subjected to two days of political indoctrination. The guerrillas then forced Maldonado to accompany them to La Reyna on a raid for food and supplies. Maldonado was forced to stand guard over stolen supplies.1
On the following evening, Maldonado escaped from the guerrilla camp, reaching his home at about 3:00 a.m. He stayed at home for only three hours. Fearing pursuit by the guerrillas, he went to the capital, San Salvador, where he met some neighbors who told him that the guerrillas had been looking for him. Maldonado immediately decided to leave the country and headed for Guatemala. Following his departure from El Salvador, Maldonado heard from his mother that the guerrillas had returned to his home several times looking for him. Their visits stopped only after they were shown a letter from Maldonado postmarked from abroad.
Maldonado worked at various temporary jobs in Guatemala and Mexico as he journeyed northward. In 1985, Maldonado entered the United States and settled in the Reno, Nevada area where he had relatives. On July 20, 1986, Maldonado was arrested
II. Procedural Background
In September 1986, as a result of the arrest by Reno police, the Immigration and Naturalization Service (“I.N.S.“) apprehended Maldonado in Reno. The I.N.S. issued an Order to Show Cause on September 19, 1986, charging him with an uninspected entry to the United States. The I.N.S. then transferred Maldonado to the Federal Detention Center in Oakdale, Louisiana.
On October 21, 1986, Maldonado appeared before an Immigration Judge (“IJ“) in Oakdale and conceded deportability. Maldonado requested political asylum3 and withholding of deportation,4 and in the alternative, the privilege of voluntary departure.5 The basis of his requests was fear of political persecution from either the guerrillas or the El Salvador military based on “political opinion” within the meaning of
After the I.N.S. transferred Maldonado to a detention facility in El Paso, Texas, Maldonado appealed the IJ‘s decision to the BIA. See
On January 28, 1988, Maldonado filed a timely petition for review. We have jurisdiction under
III. Circuit Case Law
We first decide which circuit cases we apply because Maldonado resides within the Ninth Circuit while the BIA proceedings took place within the Fifth Circuit. With respect to venue, there is no question that this case is properly before us. The venue of petitions for review of deportation orders is either in the circuit where the administrative proceedings were conducted or the residence of the petitioner.
The Attorney General has the authority to transport aliens out of the circuit in which they were apprehended.
IV. Political Persecution
In dismissing Maldonado‘s appeal, the BIA noted that a well-founded fear of harm that is not based on race, religion, nationality, membership in a particular social, or political opinion, cannot be the basis for granting asylum or withholding of deportation. See Martinez-Romero v. I.N.S., 692 F.2d 595 (9th Cir.1982) (reported anarchy is insufficient basis to disturb deportation order); Raass v. I.N.S., 692 F.2d 596 (9th Cir.1982) (generalized economic disadvantage cannot be basis for award of asylum). We have previously noted that
[a] clear probability that an alien‘s life or freedom is threatened, without any indication of the basis for the threat, is generally insufficient to constitute “persecution” and thus to preclude the Attorney General from deporting the alien. There must also be some evidence that the threat is related to one of the factors enumerated in [the statute].
Hernandez-Ortiz v. I.N.S., 777 F.2d 509, 516 (9th Cir.1985).
The BIA dismissed Maldonado‘s appeal on the grounds that his fear of persecution by the guerrillas and by the El Salvador military is not persecution on account of political opinion as a matter of law. Indeed, the BIA conceded that “the issue does not involve questions of proof, but whether the harm the respondent fears is on account of ‘political opinion’ as this term is used under [
This case presents the following legal question: If an alien is forced to join a band of guerrillas, but escapes, and the alien then fears persecution by the guerrillas and by the foreign government‘s military, is the fear of persecution on account of “political opinion” within the meaning of
It is true that Maldonado had not aligned himself politically with either the guerrillas or the military. But we have already noted that “[c]hoosing to remain neutral is no less a political decision than is choosing to affiliate with a particular political faction.” Bolanos-Hernandez v. I.N.S., 767 F.2d 1277, 1286 (9th Cir.1984); see also Turcios v. I.N.S., 821 F.2d 1396, 1401 (9th Cir.1987).
We hold that Maldonado‘s fear of persecution by the guerrillas was based on political opinion. The guerrillas are a political entity. Maldonado‘s refusal to join them was a manifestation of his neutrality, which is a recognized political opinion. Del Valle v. I.N.S., 776 F.2d 1407, 1413 (9th Cir.1985); Bolanos-Hernandez, 767 F.2d at 1286. Hence, any persecution by the guerrillas is a result of Maldonado‘s expression of his political opinion, which falls within the meaning of
This is not a case involving mere claims of “random violence.” Rodriguez-Rivera, 848 F.2d at 1006. Maldonado “is likely to be persecuted by a politically motivated group that frequently engages in terrorist tactics directed at those who refuse to join
Maldonado‘s fear of persecution by the El Salvador military is similarly on account of political opinion. In Blanco-Lopez v. I.N.S., 858 F.2d 531, 532 (9th Cir. 1988), the petitioner had been falsely accused of being associated with the guerrillas. The El Salvador authorities then threatened to kill the petitioner because of his reportedly being a guerrilla. The BIA affirmed the denial of asylum and withholding of deportation as a matter of law. Id. at 533. We reversed, holding that the petitioner was being persecuted based on political opinion in that the government “security forces believed him to be a guerrilla and attempted to persecute him for it.” Id. at 534. Similarly, in the instant case, Maldonado‘s fear of persecution is based on political opinion; Maldonado fears harm from the El Salvador authorities because of his supposed association with the guerrillas.
Furthermore, we noted in Blanco-Lopez that
the incident described by Blanco-Lopez was not in furtherance of a criminal prosecution, but rather was one of governmental persecution based on Blanco-Lopez‘s perceived political beliefs.
Id. at 534 (emphasis in original). Maldonado‘s fate at the hands of the El Salvador military would also be persecution rather than legitimate criminal prosecution.
The BIA did not question the petitioner‘s credibility. The undisputed evidence in the record reflects that the petitioner was kidnapped by guerrillas, that after his escape the guerrillas returned repeatedly to his home looking for him, and that they ceased only when shown evidence that he had left the country. The petitioner believed the guerrillas had executed his friend for having escaped them.
The BIA based its decision solely on the legal issues considered above.7 The BIA‘s refusal to consider credibility leads to the presumption that it found the petitioner credible. Certainly, “[w]hen the Board‘s decision is silent on the question of credibility, and the Board has fully explained the rationale behind its decision, we will presume that the Board found the petition credible, and to proceed to review the Board‘s decision.” Damaize-Job v. INS, 787 F.2d 1332, 1338 (9th Cir.1986); see also Artiga Turcios, 829 F.2d at 723 (since BIA did not make findings of credibility, we presumed that the petitioner‘s testimony was credible.)8
The record here demonstrates a clear probability of persecution. In Canjura-Flores v. INS, 784 F.2d 885, 887 (9th Cir.1985), we held the requisite standard
Having demonstrated a clear probability of persecution due to his political opinion of neutrality, Maldonado is entitled to withholding of deportation.
In meeting the standard for withholding of deportation by establishing a clear probability of persecution, petitioner has also met the standard for granting of asylum by demonstrating a well-founded fear of persecution. See Artiga Turcios, 829 F.2d at 724. As only a grant of asylum automatically permits an alien to apply for permanent residence status after one year,
We grant the petition for review, reverse the denial of withholding of deportation, and remand the case. The Attorney General is prohibited from deporting petitioner pursuant to
WALLACE, Circuit Judge, concurring and dissenting:
I concur in the opinion of the majority except that portion of part IV where the majority makes factual determinations regarding Maldonado‘s credibility—determinations inconsistent with the record, law, and logic. According to the majority, because the Board of Immigration Appeals (Board) based its decision on legal issues and thus did not consider Maldonado‘s credibility, we must presume his story credible. Maj. op. at 792. From this portion of the majority opinion, I dissent.
We have already assigned credibility determinations to the fact finder—and well we should. Medsker v. Bonebrake, 108 U.S. 66, 72-73, 2 S.Ct. 351, 354, 27 L.Ed. 654 (1883) (Medsker); Canjura-Flores v. INS, 784 F.2d 885, 888 (9th Cir.1985) (Canjura-Flores). We cannot determine from the record if an individual is telling the truth. A believable story in print may be unbelievable when witnessed in person. Medsker, 108 U.S. at 72, 2 S.Ct. at 354 (“The master, who was present and heard Mrs. Medsker testify, and could see her manner ... is therefore better able to determine the weight due to her testimony....“); Canjura-Flores, 784 F.2d at 888 (“The Immigration Judge is in the best position to make credibility findings because he views the witness as the testimony is given.“). Therefore, when the immigration judge (IJ) makes credibility findings, we defer to those findings. Vilorio-Lopez v. INS, 852 F.2d 1137, 1141 (9th Cir.1988) (Vilorio-Lopez); Canjura-Flores, 784 F.2d at 888. In addition, the Board is experienced enough and close enough to the initial process that we defer to its findings. See Cardoza-Fonseca v. INS, 767 F.2d 1448, 1455 (9th Cir.1985).
Despite our usual dependency on the fact finder for credibility determinations, the
The authority on which the majority relies does not command its departure from reason. In Damaize-Job v. INS, 787 F.2d 1332 (9th Cir.1986) (Damaize-Job), the IJ explicitly found the petitioner not to be credible. Our court, however, rejected the IJ‘s credibility determination. Id. at 1337-38. We then observed that the Board was silent on the issue of credibility, and explained that “[w]hile it is conceivable that the BIA shared the IJ‘s concerns regarding Damaize‘s credibility, any reliance on the IJ‘s stated reasons would be inappropriate and unsupported by substantial evidence.” Id. at 1338 n. 6. That is not our case. Neither the IJ nor the Board made credibility determinations which we rejected. Indeed, they did not need to do so because they were deciding the case on legal issues. In Damaize-Job, flawed credibility findings formed the basis of the IJ and, the opinion suggests, the Board‘s decisions; in our case, credibility findings formed no basis in the IJ and Board‘s decisions. The IJ and Board in Damaize-Job did not ground their decisions on issues of law. Damaize-Job is therefore distinguishable.
The part of Damaize-Job on which the majority relies cites Canjura-Flores, 784 F.2d at 889. Damaize-Job, 787 F.2d at 1338. Canjura-Flores explains the proper rule to be applied in this case. There we said:
Our decision is not a presumption in favor of testimony given by aliens petitioning for withholding or asylum. The question of credibility remains with the Immigration Judge in the first instance, and with the Board as outlined in our previous decisions. We will continue to remand to the Board for credibility findings when we reverse a decision in which the Board has avoided the credibility issue by holding that a petitioner has failed to establish either a well-founded fear of persecution or a clear probability of persecution even if his testimony is assumed to be credible, or when the basis of the Board‘s decision cannot be discerned from the record. When the decisions of the Immigration Judge and the Board are silent on the question of credibility, however, we will presume that they found the petitioner credible.
Canjura-Flores, 784 F.2d at 889 (citations omitted) (footnote omitted). Damaize-Job and the majority seized on the last sentence. It is the first part that applies here. The Board “avoided the credibility issue” by ruling as a matter of law that Maldonado did not qualify for withholding of deportation. They were wrong. Accordingly, we should remand for credibility determinations. Id.; see also Garcia-Ramos v. INS, 775 F.2d 1370, 1374-75 (9th Cir.1985); Argueta v. INS, 759 F.2d 1395, 1397-98 (9th Cir.1985). This is not a game where an incorrect understanding of the law by the fact finder results in automatic granting of relief. Such a rule would require inefficient use of limited resources. The Board would have to make credibility determinations in every case regardless of
The majority‘s credibility finding is also at odds with the record. Though not necessary to its decision, the IJ questioned Maldonado‘s credibility. The IJ stated: “The evidence given by the respondent, his testimony, and from his demeanor and from statements given to [sic] him at various times, I do not find the respondent credible on many of the items that he‘s brought up.” Yet the majority presumes Maldonado to be credible. Furthermore, there are numerous discrepancies between Maldonado‘s various renditions of his story. For example, at his hearing before the IJ, Maldonado testified that he and his friend were captured by the guerrillas. Yet in his statement attached to his initial asylum application, Maldonado stated that his friend was not captured but ran away when approached by the guerrillas. He also stated in his initial asylum application that he was present when his friend was recaptured and shot. But he testified before the IJ that he was not present and only had hearsay knowledge that his friend had been shot. This portion of Maldonado‘s story, replete with inconsistency, is integral to his claim of a well-founded fear of persecution and thus should be scrutinized. See Vilorio-Lopez, 852 F.2d at 1141-42; Damaize-Job, 787 F.2d at 1337-38. Though a fact finder has never assessed whether this story is credible, the majority would have us presume that it is. Which version, I am not sure.
I would therefore remand for a credibility determination. This is no idle exercise. Deportation proceedings were initiated against Maldonado after he was arrested and pled guilty to carrying a concealed weapon. The IJ questioned his credibility and a cursory review of the record reveals significant factual inconsistencies in his story. Certainly there is good reason for inquiry. I, for one, am not prepared to find Maldonado credible through the use of a so-called presumption. It is the fact finder, not us, who should determine in the first instance whether Maldonado is telling the truth.
TANG
CIRCUIT JUDGE