*1 DE Brigida MELGAR Marta Petitioner,
TORRES, Attorney General, RENO,
Janet Immigration and Naturaliza Respondents. Service,
tion No. 98-4124.
Docket Appeals, Court Circuit.
Second Feb. 1999.
Heard Aug.
Decided
Annе Pilsbury, Central Legal American Assistance, York, Brooklyn, New for Peti- tioner. Kotler, FACTUAL BACKGROUND Assistant United E.
Meredith
York, New York
New
Attorney,
States
presented at
following evidence was
White,
States
United
(Mary Jo
judge
immigration
hearing
before
York,
of New
District
Southern
for the
(“U”):
L. Shudof-
and Sara
P. Kekatos
Diogenes
*3
1983,
the
Melgar
village
moved from
In
Attorneys on
sky, Assistant
the
in El Salvador to
of San Sebastian
brief),
Respondents.
the
later,
Tablón;
years
two
she
village of El
Torres.
met and married Jose Ulises
SACK,
and
Circuit
KEARSE
Before:
However,
marriage,
after the
months
eight
STEIN,
Judge.*
District
and
Judges,
El
for the
left
Salvador
United
Jose Ulises
the
conscription
to
into
Salva-
States
avoid
separate
in a
dissents
Judge KEARSE
emigrat-
army. Once her husband
doran
ed,
opinion.
returned to
Sebastian to
Melgar
San
Although Melgar’s
live with
uncle.
her
STEIN,
Judge:
District
he
guerrilla,
uncle was not an
them
helped
by giving
the
food
guerrillas
Tor-
Brígida Melgar de
Marta
Petitioner
in
sleep
them to
his house.
allowing
and
Salvador, petitions for
res,
of El
a citizen
uncle in those endeav-
her
assisted
Immi-
of
the order of
Bоard
of
review
time that she lived
during
period of
ors
(“BIA”)
im-
affirming the
Appeals
gration
in
uncle’s home.
requests
denial of
migration judge’s
uncle
Melgar’s
In
of
November
deportation
withholding
and
of
days
he
found
seven
after
was
murdered
309(c)(4)
Illegal
of
pursuant to section
trip. Although
aon
left San Sebastian
Re-
Immigrant
and
Immigration Reform
certain who
does not know for
No. 104-
Act of
Pub.L.
sponsibility
him,
military did so
killed
she believes
C.,
(Sept.
Div.
Stat. 3009-626
Ap-
guerrillas.
he
helped
because
had
1996).
Melgar contends
Specifically,
her uncle’s
month after
proximately one
has
she
entitled to relief because
she is
death,
uncle’s
came to her
home—
soldiers
perse-
a well-founded fear
demonstrated
to live with her
Melgar continued
where
El
is returned to
Salvador
cution
she
women,
raped the
and cousins—and
aunt
in
uncle
that she assisted her
the grounds
incident, all
After that
including Melgar.
Marti
aid to the Marxist Farabundo
giving
for the
left
Sebastian
of the women
San
(“FMLN”)
Liberation Front
National
capital city San Salvador.
because he
in that
and
guerillаs
learned of
death
After Jose Ulises
allegedly killed for that aid.
was
uncle,
money Melgar
he sent
Melgar’s
and
opposition, the
General
join him in the United States.
she could
so
Naturalization Ser-
Immigration
returning
feared
that she
Melgar testified
does not
the evidence
vice contend
of El Tablón because
the village
fear,
light
especially
thought she was
military
believed that
El
since
Salvador
changed conditions
also testified
guerrilla.
Jose Ulises
accords
of the
be-
signing
El Tablón
not return to
Melgar could
follow, we
For the reasons
in the town “were
people
going
there.
cause
sup-
was
At the time of
that the BIA’s decision
a guerrilla.”
conclude
call her
involved
and we ac-
was
hearing,
evidence
Jose Ulises
ported by substantial
El
village
deny
bring water
project
affirm the BIA’s order
cordingly
Tablón,
claimed offends
which Jose Ulises
petition.
*
York,
Stein,
sitting by designation.
New
Sidney
of the United
H.
Honorable
District
District Court for the Southern
States
mayor
mayor
of Tablón because the
violence
high,
remained
hopеs
bring
village.
himself
water to the
...
no
[t]here were
confirmed cases of
politically motivated killings” and that the
daughters
has two
out wed-
extrajudicial
torture,
“number of
killings,
lock,
daugh-
born
1990 and 1992. Both
disappearances, and mistreatment of de-
ters remained
Salvador with Mel-
tainees declined
significantly
1994.”
garas
until
they
mother
when
brought illegally to the United States.
Country
The 1996
Profile reiterates that
Documentary
was
evidence
submitted
asylum claims from
applicants
Salvadoran
hearing
and the
at the
INS
before
should be viewed in light
“sweeping
IJ,
and additional evidence was sub-
changes” that have
place
taken
since the
hearing
completed
mitted after the
peace accords and notes that
the U.N.
*4
but
the
before
IJ rendered her decision.
Rights
Human
Commission
El
removed
At
the hearing,
the INS submitted an Salvador
subject
from its list of countries
1995 New York Times article
April
permanent
monitoring and that
the
Salvador,
titled “El
3 Years Later: A
Secretary
U.N.
peace
General declared the
Country
by
Remade
Peace.” That article
process “irreversible.”
It also discusses
changes
discusses the
brought
about
the
of the military-con-
demobilization
accords,
1)
peace
and reports that
Police,
trolled National
deployment
Guard,
the “National
Treasury
Police
the National Civilian Police and the decline
and
security organizations
other
that once
in political
prior years.
violence from
population
terrorized the
have been dis-
addition,
Country
the 1996
Profile cautions
replacеd by
banded and
a new National
that “although
organized
violent
criminal
2)
Police;”
army
Civilian
has been re-
gangs ...
place
political
have taken the
3)
two-thirds;
duced
“more than 100
major
violence as the
security concern in
senior officers
rights
accused of human
Salvador,
El
many asylum applications
4)
violations
purged;”
have been
and
continue to
merely
treat the situation as
an
second-largest
“has the
delegation
extension of the civilwar.”
Legislative
Assembly,”
it
although
report
did
that criminаl gangs have be-
Melgar submitted a number of articles
widespread
come
in El Salvador and some
and documents demonstrating
incidents
peace
elements of the
yet
accords have not
politically motivated violence which oc-
implemented.
been
curred after
peace
accords were
However,
signed.
most
After
of these articles
hearing,
the INS submitted
period
discuss the
immediately
both the 1995 and
Department
following
1996 State
Asylum
signing
Profiles
Claims
the accords in
Country
&
not how
Con-
Prоfiles”).
(“Country
ditions
conditions stood at the time Melgar’s
These Coun-
try
deportation
Profiles
hearing.
demonstrate that
Of the
condi-
seven news-
paper
tions
changed greatly
Salvador
articles submitted at
hearing,
after
Melgar emigrated.
Country
The 1995
five were written in
one
1993 and
Profile states that “all
[asylum]
one
1995. The
claims
1995 article
discusses
applicants
from Salvadoran
Shadow,”
should
re-
group,
armed
the “Black
which
viewed in light of the sweeping changes
threatened a local newspaper for dissemi-
which
place
have taken
country”
that
nating false information about the group.
guerrilla
since the last
combat units
also submitted a 1994 United Na-
demobilized in December 1992. The 1995
Group Report
tions Joint
dated October
Country
points
Profile also
out
politically
1994 that discusses
motivat-
“[m]ost
claims
from
ed
groups
armed
in El Salvador that were
still derive from
prior
events that occurred
attempting to
peace pro-
destabilize the
implementation
to the final
cess. The
Group
annex to the Joint
Rе-
accords” and it
port
*5
asylum applicant
When an
has demon-
concerning the
a 1996 article
submitted
subjected
past
that she has been
strated
“street violence”
Salvador.
presumption
a
that a
persecution, there is
DISCUSSION
persecution
well-founded fear of
exists.
created two alter
Congress has
208.13(b)(1)®;
§
8 C.F.R.
see also
See
deportable aliens
native forms of relief for
Melendez,
who
strated,
govern-
the burden shifts to the
native countries—
forced to return to their
show, by
preponderаnce
a
of the
ment to
deportation.
of
withholding
asylum
evidence,
country
conditions have
(2d
732,
Zhang
Slattery,
v.
55 F.3d
737
See
peti-
changed to such an extent that the
208(a)
Cir.1995).
§
Im
Pursuant
a
fear
longer
tioner no
has well-founded
Act,
Nationality
8
migration and
U.S.C.
persecuted if she were
that she would be
(the
1158(a),
“Act”),
applicant
asy
for
§
country.
return to her native
See 8
must, as a
lum in the United States
208.13(b)(1)®.
§
C.F.R.
matter,
a
establish that she is
threshold
above,
noted
the second form
As
of
“refugee”
meaning
within
will
they
who claim that
of relief for aliens
101(a)(42)(A)
Act,
§
of
8 U.S.C.
return home is with
persecuted
they
be
1101(a)(42)(A).
person
§
A
is a
“refugee”
return,
of
also known as withhold
holding
her
unwilling
who
unable or
to return to
is
grounds
To establish
ing
deportation.
of
“persecution
of
or
native
because
deportation,
appli
withholding
for
of
on ac
persecution
fear of
well-founded
prove that
there
a “clear
cant must
is
one or more of five enumerated
count of’
persecu
probability” that she will suffer
“race, religion, nationality,
grounds
i.e.,—
“i.e.,
country,
tion if returned to her native
group,
social
membership
particular
in a
likely than not that
it is ‘more
political
opinion.”
8
U.S.C.
subject
persecu
[applicant]
would
1101(a)(42)(A);
§
v. Cardo
see also INS
” Melendez,
(quot
313 FMLN, he had assisted the to because accept adequate as might able mind ” Chater, military, killed but even that he was Perez v. a conclusion.’ support Cir.1996) (citations (2d that that a reasonable omit instead contended is 77 F.3d make, given the conditions ted). assumption will be findings BIA of fact However, in 1992. even fact-finder Salvador if ‘a reasonable “only reversed assumption, Melgar fails to making that otherwise.” Oso have to conclude’ would omitted). (citations upon a reason- any offer evidence which rio, F.3d at 1022 fear person could rest a well-founded Thus, test accords able evidence the substantial to her uncle’s acts. BIA’s find due deference” to the “substantial Melendez, any 217- claims that members fact, F.2d at The absence of ings of see family persecuted after her uncle’s scope review of an and the death, conjunction with evidence that his narrow.” See “exceedingly decision INS, daughters mother and continued her own Carranza-Hernandez Cir.1993). after emi- (2d to live hаrm, against cuts her ar-
grated without Ac- a well-founded fear of Persecution on that she has gument Fear Well-Founded of her uncle’s ac- persecution on account a Protected Ground count of tions.2 BIA each ruled that The IJ and objec had failed to demonstrate Melgar’s rape by Salvadoran sol she will be her belief that
tive basis for a provide not a basis for diers also does protected on account of persecuted ad persecution. fear of She well-founded her uncle’s that neither ground, deciding knowledge has no that the mits that she such a rape supports death nor her own of her or her raped her because soldiers was evidence There substantial belief. Because guerrillas. uncle’s aid to the determination, especially reach suggest that the no evidence to there is changed conditions light of an act of random rape anything but El Salvador.1 violence, to determine it was reasonable a well- rape supports neither that her еvidence There was substantial on account of fear of founded that the death of the BIA to determine consti by the Act nor ground enumerated uncle does not lend Melgar’s past persecution as well. tutes perse her claim of a well-founded *7 BIA were enti- the IJ and the Finally, the of her activities with cution on account fear any reasonable tled to determine offered no di guerrillas. Melgar Melgar possesses is not persecution that was killed of that her uncle rect evidence whоle, recognized that that the BIA indicates concern that We not share the dissent's do legal persecu- apply correct stan- fear” of proving BIA did not the a "well-founded in reviewing "well-founded fear” when purposes, applicant's dard of bur- asylum tion for deci- Melgar’s asylum application. The BIA likely than not” than the "more den was less explicitly states: sion withholding depor- applied in the standard correctly Immigration Judge denied [T]he tation context. asylum. application respondent's for respondent has as the Inasmuch killing cannot be con- of her uncle also failed 2. The required proof satisfy burden the lower Melgar. for past persecution Even sidered failed to asylum, follows that she has it that her un- demonstrated could have probability of eli- satisfy the clear standard the basis of his was killed on cle deporta- withholding gibility required for beliefs, would con- to show how this she fails does not establish The evidence tion. Although per- past persecution of her. stitute likely not that it more than may suр- family members of close secution subject persecution respondent would be persecution, fear of future port a well-founded speci- grounds of one of the five on account finding past for a form the basis it does not in ... the Act. fied persecution of her. This, added). in the context of (Emphasis as a petitioner's situation BIA’s treatment of light in of the current condi- CONCLUSION well-founded clearly The record tions Salvador. affirm the Accordingly, we decision signing of that since the demonstrates deny petitiоn. the BIA and January the coun- accords try’s political and social conditions have KEARSE, Judge, dissenting: Circuit military organi- materially changed. persecu- claims to fear zations that respectfully I dissent from the denial of either reduced in size tion from have been (“Mel- petition of Melgar de Torres replaced with the Na- or demobilized and gar”) for review of the decision of the tional Police and the FMLN— Civilian (“BIA” Immigration Appeals Board of whose cause and her uncle were “Board”) denying request asylum. supporting they provided when aid to the I remand to the would Board further largest has the second del- guerrillas —now plainly proceedings because the record country’s legislature. egation elected finding lends itself to a on Mel- —based INS, Aguilar-Solis See v. 168 F.3d gaos evidence was found to be “be- (1st Heston, Cir.1999); Cigaran 565-574 immigration lievable” both the law (8th Cir.1998). (“IJ”)(Decision judge July dated (“IJ (see Decision”), 7), and BIA at Melgar may be correct Although (“BIA BIA Decision dated March may in pointing out that there still be Decision”), 2 (expressly adopting “the Salvador, rights human abuses Immigration Judge’s finding [Melgar] political killings have decreased consider provided and her husband credible and ably Department Country and the State testimony”)) detailed Melgar has a —that positive present Profiles view of condi persecution well-founded fear of in her crime that general tions. The increase Salvador, native El and because some in the record has been documented does language used and the BIA IJ not lend to an claim since Boаrd, uncertainty creates that the in de- persecution a well-founded fear of must be applied nying asylum, legal the correct ground on account of an enumerated set standard. Act, general forth in the crime condi ground.3 According seeking asylum tions are not a stated An alien under the Im- ly, change country migration conditions also Act Nationality must dem- supports “refugee” the determination onstrate that she is a within the Act, i.e., meaning failed to demonstrate a well-founded fear of that that she is unwill- ing on account of her and her or unable to return to her guerillas. uncle’s assistance to the FMLN “because of or a well-founded sum, BIA sup persecution,” may the decision of the which be based ported by membership cognizable substantial evidence. on her “social *8 language 3. In its discussion of the conditions in ed fear" standard. The instead indi- Salvador, the BIA writes: regarding cates that the evidence submitted Profile, acknowledge Country continuing rights We that the human abuses was not rele- by documentary as verified materials Melgar’s particular vant to fear of by respondent, submitted states that hu- required if she were to return to El Salvador. rights by man abuses are still committed This is consistent with the IJ’s determination forces, government implementa- even after targets that the violence were now Nonetheless, peace tion of the accords. corrupt primarily "political offi- leaders respondent has not shown that she would cials, supporters guer- not but low-level particular government persecu- be at risk оf family guerrilla support- rilla or members of tion. ers.” General violence in El does reservations, Despite the dissent’s it does not persecution, not constitute nor can it form a BIA, appear though using as the above petitioner’s per- basis for well-founded fear of language, imposed petitioner higher a re- secution. quirement appropriate than the "well-found-
315 1101(a)(42)(A). family cognizable constituted a social When ate § 8 U.S.C. group.” evidence group. that she The credited revealed has demonstrated the applicant 1992, past persecution, prior Melgar to to had subjected years that for has been (rebuttable) that presumption giving support helped there is a her uncle to return, 1992, were she to persecution, guerrillas. January her fear of In 8 C.F.R. See well-founded. is reached between the Salva- accords were 208.13(b)(l)(i). In guerrillas. and the government doran 1992, however, Melgar’s uncle November Cardoza-Fonseca, 480 U.S. In INS killed; evidently was no official was there (1987), 1207, L.Ed.2d 434 94 107 S.Ct. IJ, investigation; apparently accepting made clear that Supreme Court responsibility as to for this Melgar’s belief that an standard means well-founded-fear killing, described it as “her uncle’s murder required to asylum is not applicant (IJ 11.) In Decision at by the authorities.” persecuted, be” 480 she “would show that wife, (internal Melgar, her uncle’s December quota at 107 S.Ct. U.S. (i.e., surviving all of the her cousins omitted), pros or even that tion marks raped group) than adults social likely is more not. pect of 443-50, military. In 430-32, of the Salvadoran members id. at S.Ct. See Melgar remand a woman with whom January the Ninth Circuit’s affirming applica an a hoping for review of while to obtain staying the BIA Unit- standard, proper legal Melgar tion under the to turn States visa threatened ed Supreme Court stated: military. daughters and her over to have Melgar “well-founded” that seemed the fear must be The IJ found
That fear, subjective ... transform the standard based on legitimate not “a does 12.) (For (Id. not” one. One likely a “more than at reasons past experiences.” into me, however, fеar of certainly can have well-founded the Board apparent not when is less happening there event that had not tes- repeatedly stated chance of the occurrence than a 50% re- “why” as to directly tified feared taking place. Salvador, (BIA Decision at turning to El fact); it (noting id. at 3 n.l (noting that see (endorsing com- at 107 S.Ct. Id. “again”)).) it were that mentator’s observation country of applicant’s in the “known that IJ, had despite finding that person is adult male origin every tenth subjective fear based on legitimate remote to death or sent some put either against recommended past experiences, only ap- too camp .... it would labor not had asylum, concluding anyone managed who has parent “have the authorities demonstrated country in will escape question from action harm- inclined to take taken or are persecut- being have ‘well-founded of her member- th[e] ful to her on basis” (emphasis return.” upon his eventual ed’ (IJ family. ship in her Decision uncle’s added)). concluded: The Court 9.) itself premise this question I whether eventually “refugee” or not a Whether standard; appears it applies the correct matter asylum is a which Con- granted returned, per- that if require proof for the General gress has left would be more authorities secution Congress But it is clear that to decide. than not to occur. likely to restrict eligibility did not intend prove relief to those who could itself, in *9 the Board importantly, More they will likely than not that it is more deny recommendation accepting IJ’s deported. persecuted not “has shown asylum, stated 450, 107 at 1207. Id. S.Ct. particular be at risk that she would (BIA persecution.” Decision matter, government the IJ found present In the added).) uncle, (emphasis and her uncle’s immedi- Melgar, her Cardozcir-Fonseca, clear As made
however, more-likely-than-not nor neither test; proper and it is not
“would be” is the IJ’s decision or
clear to me from either the. legal that the correct
the Board’s decision I applied. Accordingly,
standard’ was
would remand to the BIA for review of
Melgar’s asylum application under standard.,-
proper legal
NATIONAL LABOR RELATIONS
BOARD, Petitioner,
COCA-COLA BOTTLING COMPANY BUFFALO, INC.,
OF
Respondent. No.
Docket 98-4152. Appeals,
United States Court of
Second Circuit.
Argued March 1999. Sept.
Decided
notes
while the “level
politically
lists
motivated executions
3H
place
grounds,
may,
ed
General
attempts that
took
and execution
discretion,
through February
grant asylum pursuant
1994. her
to 8
March 1992
from
Zhang,