*1 drugged it ends. her condition. There DAVIS, GEE, Before JOHNSON petitioner’s first The claims advanced Judges. points appeal are dismissed without four presentation proper else- prejudice their PER CURIAM: court on judgment the trial where. The appeal from At the outset claim is exhausted petition for stat prisoner’s denial of a state AFFIRMED; relief,1 an exhaustion utory we face habeas advances problem: appointed counsel presented that have been
to us four issues to the feder
neither to state courts nor judgment she from whose
al district court therefore, cannot, properly
appeals. We Estelle, 695 F.2d Burns v.
consider them. Cir.1983), Lundy, (5th citing v. Rose
847 509,102 S.Ct. 455 U.S. Raul Larrad YOUNG Grace Circuit, (1982). how It the rule our Petitioners, Quan, de ever, unexhausted claims are that where appeal were not drawn before us on which v. district
presented to the court—claims The UNITED STATES DEPARTMENT latter circumstance we because JUSTICE, AND IMMIGRATION OF ordinarily consider would not SERVICE, Re- NATURALIZATION only remaining issue is event—and spondent. presented both exhausted and sues No. 84-4506. court, we will the federal trial presented to former, presented improperly dismiss Appeals, Court of United States prejudice and review the issues without Fifth Circuit. Maggio, latter. v. 727 1387 Williams 2,May 1985. Cir.1984). (5th today. do so We us is properly The sole issue before presented at’ her
whether the evidence light was, trial when considered
state judgment of convic favorable
most
tion, fact a rational trier of could such that the essential elements of found that proved beyond a reasonable
her crime were Cain, F.2d 112 Bujol
doubt. — denied, -, Cir.1983), U.S. cert. (1984), citing L.Ed.2d
S.Ct. 99 S.Ct. Virginia, U.S.
Jackson (1979). Specifically, 61 L.Ed.2d of evi- because
petitioner contends
1. 28 U.S.C. §
Goldberg, Judge, filed dissent-
ing opinion. Clinic, Evangeline employ- G. Mr. his loss
Loyola School attributes Law Ware, La., Orleans, Abriel, inability New for ment David and his to obtain new em- ployment petitioners. activities of son, During 1980 and Raul. Raul Gen., Smith, Atty. Dept, of Jus- Wm. F. awas at the University student of San Dir., tice, Bombough, L. Office Robert organization Carlos and a member of an Madelyn Johnson, Litiga- E. Immigration & *3 political objec- with both charitable and Division, Hausman, tion, Allen W. Civil in tives. Raul testified that November D.C., respondent. Washington, 1981, he and a number of other student Lambert, Dir., I.N.S., Dist. David H. organization members of this were seized La., Orleans, par- for other interested New police during Guatemalan secret ties. meeting at the university in a classroom municipal
and building were taken to a in City, they the center of Guatemala where being were accused of beaten and subver- According sives and communists. to Mr. GOLDBERG, JOHNSON and Before Quan, he quickly learned of his son’s deten- DAVIS, Judges. Circuit and, personal the assistance of with Interior, in Ministry friend of the was DAVIS, Judge: Raul, able to Raul released. W. EUGENE who held visa, passport immediately a valid and de- Quan Young and Grace Petitioners, Raul parted for the United States. testi- Raul are husband and wife Quan, de who Larrad fied that of the at least two students who Guatemala, seek review and citizens him were detained with were later found immigra- issued deportation orders murdered marks of torture with on their Department of Justice. judge of the bodies. judge found that immigration The aliens Quans deportable who were Quan Mr. testified to additional incidents depor- asylum or eligible for support in persecu- of his claim of refugees. The Board tation as Quan approximate- tion. Mr. asserted that Appeals dismissed the Immigration ly flight a week after Raul’s the United order; The we affirm. appeal this States, type several men armed with the sought to their bond Quans also weapons issued to the Guatemalan secret hearings. determination police attempted kidnap him, without reopen the proceedings; judge declined success, City. on a street in Guatemala Immigration Appeals af- Quan Mr. employ- contends that before his Finding jurisdiction no to review firmed. government ment with the Guatemalan determination, we dismiss this the Board’s terminated, he received several threat- Quans’ petition. portion of the ening warning telephone calls him to be job.”
“careful in his
I.
In
Mr.
November
came to the
passport
United
a valid
States with
and
Mr.
engineer
is a civil
and the for-
multiple entry
After
in
tourist visa.
arrival
Department
mer
chief of
of Studies and
country,
applied
Mr.
to a district
Design at the Guatemalan Institute of Mu-
director
and
Naturaliza-
nicipal Development, an agency of the Gua-
(INS)
asylum,
tion Service
government.
In
temalan
January
§ 1158,
granted
and was
work authoriza-
position
dismissed from
at the
Institute,
tion.
remained
allegedly without
Guatemala
expla-
notice or
trips to
sought
frequent
nation. Mr.
then
but made
other em-
ployment
engineer
a civil
as
States.
last entered the United States
Guatemala
She
but
position.
was unable to obtain a
tourist
on June
on a
visa which
permit
to remain
stipulation
extended
her
until
did not allow the
11, 1983.1
withdraw
December
their concessions of deportability
permit
but did
them
to avoid
if
July
Between
8 and November
they could
establish
would be
Department
INS and the United
States
subject
persecution
if deported to Gua-
Justice received several telexes from the
Nevertheless,
temala.
at Mrs.
embassy in
United States
Guatemala and
opened hearing,
attempted
to retract
Interpol.
Guatemalan office
charges against
admission of the
relayed
These telexes
an accusation
deportability
her concession of
that Mrs.
grounds that
these admissions had been
engaged
baby smuggling
had
had
coerced.
refused to
people
ordered the murder of four
in Gua-
permit
holding
this retraction
ad-
temala. These telexes
accused
also
knowingly
missions had been made
$13,000,-
fraudulently obtaining
*4
voluntarily.
initially
government
000. The Guatemalan
expressed
extraditing
an interest
in
reopened hearings,
the
At the
immigra-
the
Quans
complete
but did not
formal
tion judge
testimony
extradi-
heard
from Mr.
requests for either
them.
regarding
of
and his son Raul
experi-
their
Guatemala,
ences in
and received evidence
21, 1983,
On October
the INS made
regarding
general
political
the
climate of
Quans
warrantless arrest
the
and their
repression
country.
and violence in that
fourteen,
three)
(aged
children
nine and
at
immigration
The
judge
that Mr.
found.
in
the
home New Orleans. The INS
to
failed
that his
establish
economic
to
served Mr.
an order
show cause
in
product
difficulties Guatemala were the
why
having
deported
he should not be
for
opinions
retribution for his
or
visa,
overstayed
non-immigrant
his
persecuted
that he would be
on account of
§§ 1251(a)(2), 1201(a)(2).
Mrs.
was
political opinions
if he were
to
returned
alleging
served a similar order
that she
Quans’ request
asy-
Guatemala. The
for
entered the United States
the
with
unlaw-
lum withholding
deportation
was de-
remaining indefinitely,
ful intention of
they
deported;
nied and
were ordered
an
§§ 1251(a)(1),1182(a)(20).
U.S.C.
Over the
appeal from this
decision was dismissed
arrest,
days following
twelve
their
the
the
of Immigration Appeals.
Board
Quans
interrogated.
were detained and
Quans
they
Following
21,
assert
were
in-
their
on
arrest
October
charges against
Quans
formed of the
them and
the
were held without bond.
permitted
attorney
were not
to
an
hearing
consult
On
November
was held
$15,000
until November
at
bond
at
which
was set
for Mr.
$30,000
Quan.
and at
By
for Mrs.
A deportation hearing
held
was
Novem-
joint
stipulation, Mr.
bond
then
on the
ber
$5,000.
Quans
reduced to
later moved
against
Quans
the
in the orders to show
reopen
to
their
proceedings
bond
the
cause. On November
both
and Mrs.
ground
government’s
the
Quan,
counsel,
with the assistance
re-
any attempt
abandonment of
to extradite
sponded
questions posed by
immigra-
to
the
them
relatively high
rendered the
bonds
judge,
charges against
admitted the
unnecessary.
them,
they
deportable,
conceded that
were
reopen
fused
proceedings;
to
the Board
requested deportation
to Costa Rica.
Immigration Appeals
affirmed.
Rica, however,
accept
to
Costa
refused
Quans.
stipulation
court,
Pursuant to a
petition
with the
On
review this
Quans
permitted
Quans
were
to reopen
request
deportation
their
or-
or,
vacated,
hearings
asserting
their
ders be
that coerced con-
alternative, withholding
deportation.
deportability
improperly
cessions
were
eight
1. No
is made
Mrs.
contention
months she remained in Guatemala with-
during
mistreated
officials
out her husband.
hearings
civil
hearings
Deportation
ac
deportation
their
received
eligibility
Appeals
tions to determine
alien’s
country
remain in
and do not have the
concluding
ineligi-
erred
proceedings.
INS v.
withholding as
character of criminal
asylum or
ble
—
-,
Quans
Lopez-Mendoza,
U.S.
104 S.Ct.
alternatively,
seek an
refugees;
3479, 3484,
(1984). The
deportation
full
hearings
reopening their
order
rights available in
range
As
of constitutional
of new evidence.
reception
proceedings is
afforded
matter,
review of
criminal
de-
seek
separate
deportation proceedings.
fendants in
Id.
Immigration Appeals’ refusal
the Board of
Lopez-Mendoza
III.
2489, 2492, 2501,
104 S.Ct.
(1984),
immigra
asserts that the
the Court held that an alien could
tion judge’s
application
denial of his
qualify
withholding
of deportation by
§
asylum,
1158(a), 1101(a)(42)(A), showing
persecu
U.S.C.
a “clear probability” of
was an abuse of discretion and that
tion
deported
should he be
es
—“evidence
likely
immigration judge’s
applica
tablishing
denial
it is
more
than not
withholding
deportation,
subject
persecu
that the alien would be
§ 1253(h),
not supported by
U.S.C.
one
specified grounds.”
on
remedies,
substantial
These
Upon
showing,
evidence.5
two
the alien is entitled to
asylum
withholding
deportation,
right. Stevie,
as matter of
completely separate although both are de 104
S.Ct.
2496 n. 15. The Court declined
signed
provide relief
to aliens who fear
meaning
elaborate on the
of the “well-
political persecution in
persecution”
their native coun
founded fear of
standard an
Attorney
tries. The
alien must
meet to
General has discretion
obtain
under
grant asylum
physical
an alien who is
1101(a)(42)(A). Stevie,
section
104 S.Ct. at
ly present
alien,
however,
the United States if the alien 2501. The
clearly bears the
unwilling
or
return
proving
unable
to his na
burden
entitlement
to asy
both
§§
country
persecution
“because of
withholding.
208.5,
lum and
8 C.F.R.
Stevie,
persecution
well-founded fear of
242.17(c);
16;
ac
457 (5th 1981); (7th Cir.1982); 458-59 Cir. F.2d Coriolan 504-06 Castaneda ex rel. (5th INS, INS, v. 559 F.2d 1002-04 Cir. Gonzalez-Gonzalez v. 740 F.2d 1977). case, however, In this we are not (8th Cir.1984). persuaded proferred evidence is Immigration The Board of Appeals’ dis- significant and we therefore decline the missal appeals the deportation hearing.9 invitation order a new The AFFIRMED; petition orders is for re- Quans large evidence the seek to submit Immigration of the Board of view Appeals’ ly Moreover, proferred cumulative. ev bond orders is DISMISSED. Quan’s concerning per idence Mr. claim
secution, credible, if fails to demonstrate GOLDBERG, Judge, dissenting: that the misfortune which befallen the Quans Although Judge is the result of retribution cogently Davis has Quan’s political opinions. presented the restrictive framework within which we must review the Board’s final
V. order, neither administrative officer The nor the assert that the Board Im- Board seems to have considered the migration Appeals refusing erred in to re- entire in arriving record at its decision. open hearings their bond determination my respectful Hence dissent.
light government’s of the Guatemalan fail- The settled law of this circuit is that a ure its crimi- substantiate accusations decision whether withhold responds nal conduct. grant asylum must be based on con- jurisdiction we are without to consider sidered examination of all relevant factors this claim. INS, and evidence. Ramos v. 695 F.2d jurisdiction (5th Cir.1983);
Our direct entertain INS, Coriolan v. appeals (5th from the Board of Cir.1977); 1003-04 accord Appeals INS, is confined to “final orders of de Zavala-Bonilla 730 F.2d 563- portation (9th against Cir.1984); ... INS, aliens within 67 see Sanchez v. pursuant (5th States Cir.1985). to administra F.2d opinions proceedings under U.S.C. and the do Board [8 §] § 1252(b)....” 1105a(a). adequately Bond U.S.C. reflect all relevant evi- hearings pur weighed determination are conducted dence was deny the decision to suant to authority granted asylum. See Osuchukwu Attorney INS, § General 744 F.2d under 8 1142-43 Cir. 1252(a) and, U.S.C. § (8 regulation 242.2(b)), 1984). C.F.R. such hear Petitioners offered three letters ings separate pro and distinct from supporting from individuals in Guatemala ceedings deportabil to determine an alien’s belief that he had been fired Hence, ity. possess jurisdiction we no to because of his son’s affiliation and exercise direct over stating review the Board of “the family lives of whole Immigration Appeals’ grave danger death, refusal to be in would consid- ering the current hearings, bond situation.” and we dismiss the Quans’ petition for order.10 review this Board dismissed the in a letters footnote as 501, being Accord nothing Gornicka v. more objec- than “so-called *8 request deportation acknowledge scope juris- 9. The also that their 10. We that the of our 1105a(a) hearings reopened diction under 8 U.S.C. § be to consider additional evi- includes "all validity matters on which the of the final order suggesting dence that their of de- concessions deportation] contingent" regardless [of is of the portability reject were coerced the We INS. nature of determined, forum in the which these matters are Quans’ this due to the either to failure Chadha, INS v. 462 U.S. they propose describe the nature of the evidence 2764, 2777-78, (1983). S.Ct. provide to offer or a reasonable excuse for validity Since the final order presenting immigra- not this evidence in their deportation contingent upon is these bond proceedings. tion determinations, jurisdictional base is not appeal. relevant to this persecuted evidence,” immigration judge’s should she return. Further- and the more, read, only undoubtedly the letter writers mentioned opinion, generously placed merely themselves at risk writ- three letters one of the repris- ing. Their fear of that one letter understandable discounted even record and the Apart may al also account for letters’ lack suggested justification. any without specificity. credibility persuasive- from issues ness, these failure consider the Board’s objective evidence constitutes
letters as remand, fully On the BIA should consid the defer- even under most error versible er letters the Zavala-Bonilla’s Ra- union____ of discretion standard. ential abuse and her consider friends [I]n mos, at 695 F.2d 185-88. ing whole, the record the BIA as should bear mind difficulties previously required greater We have providing proof alien encounters in deporta- of final orders of substantiation potential persecution. See McMullen [v. INS: INS, (9th Cir.1981)]; author- decision [T]he High Nations Commissioner affirmatively ities must reflect Refugees’ Handbook on Procedures for meaningfully addressed and have (Geneva Determining Refugee Status a reasoned conclusion concern- reached 1979) (because difficulty col aliens deter- ing factors relevant to that all the lecting proof, credible accounts should be evidence, mination which are based given doubt). the benefit of the requirement itself ab- (footnote omitted); at apply. Id. see also stractly recognized, did not but Coriolan, 559 F.2d at (citing 662 F.2d Prapavat Id. at 189 opinions the administrative Cir.1982)). Moreover, Because while cursory acknowledg- only our case reflect expressly held that we have not letters petitioners’ ment that letters had been sub- petitioners’ as constitute relevant and such mitted, I remand with would instructions objective purposes material evidence record, Board consider entire asylum and including additional these letters claims, the Ninth Circuit had occasion may relevant and material evidence that Zavala-Bonilla, just to hold that. have been adduced filed since Board its appeals’ expres- 565-67. court ago. final order some nine months petitioner’s situation in Zavala- sion equally apt Bonilla on the of our facts
case: denigrated gra- BIA letters as
[T]he speculations only gen-
tuitous that refer
erally past to Zavala-Bonilla’s union ac-
tivities, unemployment the current situa- rights human in El violations NATIONAL LABOR RELATIONS Salvador, possible dangers Zavala- BOARD, Petitioner, face were to return to Bonilla would record, however, land. The native CORPORATION, Respondent. LANCER support does the BIA’s treatment of No. 84-4704 There is no evidence that the letters. Summary Calendar. might are false. one infer letters While friends in El would Salvador Appeals, United States Court of letters, supportive tend it is dif- to write Fifth Circuit. imagine, given ficult to her circumstanc- May 2, 1985. es, testimony what other forms of Zava- present. readily la-Bonilla could She hardly
could ask the authorities El *9 certify
Salvador to that she would be