*1 the non-Asian finding that sidered the evidence about court’s the district workplace,4 post Minneapolis harasser sexual certainly explanation an so is he did not fired. The court found office who was national ori- than race or firing other not conclusive Reeves, that this evidence was be- See gin discrimination. employee had a different cause the other (even gave false employer who at 2109 that Bush fa- supervisor. The evidence exonerated would be reason for action Cha, Yacoub, Egyptian, an over vored another non-discrimi- that record revealed Korean, inevitably toward does not lead decision); its motivated natory reason that the basis for Bush’s the conclusion Advisers, Inc., 85 v. Investment Rothmeier respec- preference employees’ was the two (8th Cir.1996) (where 1328, 1337-38 F.3d races, especially since tive nationalities or dispute employ- factual whether there was hint favoritism until there was no of such false, but proffered reasons were er’s complaining to Bush Yacoub came discharged he was acknowledged plaintiff sexually. can- pursuing We Cha discrimination, age than for a reason other that a of fact could reach say not trier af- employer summary judgment by the conclusion that Bush was motivated firmed). origin prejudice, and we race or national the district court’s find- argues that Cha say can that. cannot reverse unless we clearly erro- ing of no discrimination was Anderson, See S.Ct. compel- presented other neous because he If had held that Cha’s the court origin national of race and ling evidence to make a triable evidence did not suffice argues that Yacoub is discrimination. Cha fact, argument issue of Cha’s would Asian, and rather than an Egyptian, an is, proceeded As it his case stronger. story and fail- by accepting Yacoub’s fact, simply per- not the trier of who was present chance to give equal Cha an happened was the result suaded what side, preju- he was his own Bush showed prejudice origin of racial or national of race or against diced Cha on the basis Koreans. against points to the origin. national Cha also no in the district There is clear error another that Bush terminated finding carry that Cha did not his court’s that another non- employee, Asian persuasion. We affirm the burden employee who committed sexual Asian judgment of the district court. fired. harassment was not district court considered evi- Crystal Yung, about dence probationary employee,
Asian-American fired for illness-related absences.
who was not consider this simply The court did Petitioner, HERNANDEZ, Rolando sufficiently probative carry incident v. firing persuasion Cha’s burden origin race or national motivated RENO,1 Attorney General, Janet Similarly, court con- discrimination. Justice; Department Doris Meissn ably it created a hostile opine conduct co- to conclude 4. We do not on whether environment.”). working workplace can contribute workers outside the Dowd v. to a hostile work environment. Cf. America, motion, 253 F.3d United Steelworkers United States 1. On the court's own Cir.2001) ("The Attorney offensive Ashcroft is substituted General John necessarily transpire predecessor Janet Reno. See Fed. conduct does not have for his 43(c)(2). juror R.App. P. workplace in order for a reason- *2 Commissioner, Immigration er,2 U.S. Service; Al Curtis
and Naturalization Director, Paul,
jets, St. District District, Immigration
Minnesota Service, Respon Naturalization
dents.
No. 00-3721. Appeals, Court of
United States
Eighth Circuit. 14, 2001.
Submitted: June Aug.
Filed: motion, predecessor Doris Meissner. See 2. On Commissioner tuted for his the court's own 43(c)(2). Immigration of the United States and Natu- R.App. P. Fed. Ziglar Service James W. is substi- ralization MURPHY, HEANEY,
Before BEAM, Judges. Circuit MURPHY, Judge. Circuit *3 Petitioner Rolando Hernandez entered the United States without inspection in fleeing after Guatemala escape to Organization People for in Arms (ORPA), impressed which had him into its service. The Immigration and Naturaliza- (INS) tion Service deportation initiated proceedings against him in 1993. Hernan- dez conceded deportability, requested but asylum and withholding deportation. given He was an individual hearing merits immigration before an judge in June 1994. testimony His hearing forms the matter, factual record this judge specifically testimony found his to be cred- ible granting before his requested relief. The Board Immigration Appeals (Board) issued its decision October statutorily Hernandez was ineligible asylum. carefully After reviewing the record, we remand to the Board for its further consideration.
I. in Quezaltenango, was born Guatemala on August 1965. Insofar as concerned, this case is began troubles when two ORPA approached members him on a April bus in 1992 and initiated conversation. The two men did not identi- fy themselves as guerrilla members of a organization. At that time Hernandez had never heard of ORPA and did not know that it guerrilla was a group which used pursuit violent means in goals. of its Dur- ing the conversation Hernandez told the two men where he lived and worked. began The two men visiting him at his Benjamin Casper, Paul, West St. Minne- workplace and at the restaurant where he sota, argued, appellant. usually They ate. began pressure also to (Julia Mai, argued
Anh-Thu P. Doig, join K. organization, to their they brief), on the appellee. misrepresented the nature of They ORPA. group said that the dedicated im- Playa to Grande giving information to the lives of Guatemalans under- army, he ordered go there taking non protesting violent activities and fifty retaliate. About people went to injustices. Although Hernan- Playa Grande, and Hernandez and several dez generally sympathetic with the others were ordered villagers to remove goals, join stated he was reluctant from their homes ransack their organization. eventually He did so houses. They herded approximately 100 after the two men kill threatened to him if villagers to the town center. The com- he did not. He believed he would be mander identified about fifteen this expected to be involved in organizing group *4 government informants, as and or- strikes, stoppages, work or demonstrations dered Hernandez and ten guerrillas against government. the He had no idea to open fire on them. All of suspected the that he would participate to asked informants were killed. activities. violent Hernandez did not part want to be About a month after meeting, their first this firing squad, but he knew he was the two men came to a restaurant where being tested and understood he would be eating, Hernandez was forced him into if killed he did not follow the commander’s car, and drove him to a guerrilla camp in a order. He would “have rather turned the remote mountain location. Hernandez fire on companions,” [his] own but he knew approximately fifty found ORPA soldiers that “with one gun machine wasn’t [he] camp, this as well as two other individu- going to be able” to take of all care of the als who had also been forcibly recruited guerrillas. The right commander stood and kidnapped. The three newcomers Hernandez during behind the shooting and group were then oriented to the given and magazine examined the of his rifle immedi- weapons training. objected Hernandez ately afterwards to check whether he had and informed the leaders he did not followed orders. Hernandez testified that want to be weapons. They involved with attempted to aim away from villag- told that the training necessary ers and anyone, tried not to hit and that he and that had to take ORPA extreme mea- shot approximately 10 to rounds of a 30 sures order to goals. obtain its magazine round to the left of where he day The next Hernandez was taken thought villagers standing. were He guerrillas village to a small outside of indicated that he did not believe that he Retalhuleu, they engaged where govern- anyone. had hit forces in objected ment battle. Hernandez taking part, Grande, to After the shootings but the leaders said the action necessary. battle, After the Hernandez went to the ORPA commander the commander ordered asked to be set free. He told the dynamite others to a bridge and to stop commander that he disagreed with the cars and loot them. injured No one was group’s violent tactics thought and that he by the dynamiting, but some the drivers doing ORPA was more harm in Guatemala beaten. Hernandez testified that he good. than replied commander join acts, had not wanted to of these Hernandez could not leave and only did so because he feared that the that he would send if him “to hell” he ever guerrillas would harm or kill to again. asked leave The commander him. guerrillas then keep guard ordered two days
Several
later
him prevent any
after the commander
over
escape attempt.
reports
had received
villagers
that some
in Hernandez also went
two men who
II.
him out and told them
sought
had first
group, but
to leave the
that he wanted
May
In
the INS issued an order
him that he would be killed
they warned
Hernandez, alleging
against
show cause
way.
He consid-
to talk
he continued
having
entered
deportable
that he was
turn himself over to the
trying to
ered
under
inspection
without
the United States
forces,
they
he feared
but
241(a)(1)(B)
and Na-
Immigration
§
guerrilla.
(Act).3
him as
would shoot
tionality Act
Hernandez conceded
deportability,
applied
guerrillas
en-
days later
Several
deportation under
withholding of
government forces
with
gaged
battle
243(h)(1) of the Act. He contended
rec-
border. Hernandez
near the Mexican
unable to return to Guatemala
he was
oppor-
the best
that this could be
ognized
he faced
ORPA
where
escape, and he ran towards
tunity for
political opinion
members because of his
him to
guards ordered
border. His two
harmful to Gua-
their actions were
at them and continued to
he shot
stop, but
temala,
opinion
publicly
an
that he had
on
turned their fire
guerrillas
run. The
expressed
guerrilla
to his
commander
*5
leg,
hit him the lower
Hernandez and
members.
eventually escaped into
ran on and
but he
immigra-
A
held before an
hearing was
approxi-
had
with ORPA
Mexico. He
been
testi-
judge
tion
in June 1994. Hernandez
he was able to
mately
days
20
before
immigra-
a translator. The
through
fied
escape.
credibly
judge
tion
found that Hernandez
forcibly re-
that he had been
established
and worked Mexico
Hernandez lived
mis-
cruited into ORPA
coercion and
two months before he
City for about
representations,
supported
that he had not
question-
two men had been
learned that
guerrillas, and that as soon as he
Guatemala,
employer
ing his former
goals
of their
he informed
became aware
Cruz, about “Rolando.” Her-
Guillermo
disagreement
of his
with them
the leaders
that
had found a
was aware
ORPA
nandez
group.
The
attempted
and
to leave
who had fled to Costa
previous escapee
concluded that Hernandez was enti-
judge
Rica;
he had been taken back
Gua-
testi-
asylum
tled to
because his credible
Hernandez feared that
temala and killed.
of
mony established a well founded fear
a similar" fate if ORPA
he would meet
knew
persecution by guerrilla leaders who
finding
him. He
guerrillas succeeded
their forces after
that he had deserted
money
attempted
borrowed
Cruz
opposition
them and also
announcing his
to flee into the United States. After sev-
it
that Hernandez had established
attempts,
en-
eral unsuccessful
that he
likely
be more
than not
would
5,
September
the United States on
tered
persecuted
would be
he returned
Gua-
He maintained contact with his
judge
granted
The
then
Hernan-
temala.
mother and with
His mother warned
Cruz.
application
asylum
for
and withhold-
dez’s
stay
him to
three armed
hiding because
ing
deportation.
him,
looking for
and Cruz
men had been
Board of
“they”
looking
appealed,
for
The INS
sent word
(Board)
Immigration Appeals
sustained
him.
Nationality
Illegal Immigration
Act. Because Hernandez's
3. The
Reform and Immi-
(''IIRIRA''),
brought
date of
grant
before the effective
Responsibility Act of 1996
case
IIRIRA,
104-208,
pre-amend-
references are to
repealed
our
Pub.L. No.
110 Stat.
Immigration
ment law.
portions
renumbered
of the
appeal
(BIA
in October 2000. The Board Dec.
1988),
WL
statutorily
held
Hernandez was
ineli-
States,
Fedorenko v. United
gible for relief
because
had “assisted or
(1981),
812 States, v. Fedorenko United particu- of the an evaluation requires
enko (1981), L.Ed.2d 686 S.Ct. He main- petitioner. lar conduct of have examined the leading case to is evidence, evaluated when that the tains an individual assisted question of whether that he shows with accordance persecution. Fedorenko or perse- in the or never assisted guard at a who became was a Ukranian The INS maintains others. cution of Treblinka, Po- camp Nazi extermination correctly analyzed the case the Board II. the war After during land World War of not meet his burden Hernandez did with States he entered United did not assist or that he Displaced Persons a visa issued under of others. participate (DPA) citizenship. later Act obtained brought an action government In 1979 the III. grounds citizenship his on to revoke conclusion that Her The Board’s had his naturalization obtained or withhold ineligible nandez facts on willfully misrepresenting material we determination which ing relief is citizenship applications. He visa v. Escudero-Corona de novo. See review Treblinka, had not disclosed his work Cir.2001). INS, 244 F.3d contended underlying its conclusion findings Factual it would was material because omission under a substantial are reviewed ineligible for a visa under have made of review. Id. standard 2(a) 2(b) provi- the DPA. Those Hernandez who is oth- An individual like specifically excluded individuals who sions may remain Unit- deportable erwise persecuting enemy had “assisted the eligible can show that he is “voluntarily ed States or assisted who civilians]” depor- asylum withholding or operations.” either for ... in their enemy forces 243(h) 495,101 Immi- §§ 208 or tation under Id. at S.Ct. Nationality Act. Neither gration at trial that he had admitted Fedorenko available to an individ- statutory relief is at Treblinka guard served as an armed types certain participates
ual who .in that he had been *7 during 1942 and 1943 and refugee a The definition of persecution. being that thousands of Jews aware excludes asylum specifically eligible for that he had murdered there. He testified incited, assisted, ordered, “any person who guns, and two that been issued a uniform in persecu- or otherwise service, paid he had been race, any person on account tion of stripe good a merit he had received membership par- in a nationality, religion, permitted to service. He had also been political opinion.” group, or ticular social at- camp regularly and had not leave the 101(a)(42). pro- language Identical § INA escape. He admitted tempted' deportation for such withholding hibits 1943 escaping during inmates a had shot at 243(h)(2)(A). If § an individual. See INA that he had been uprising, but contended applicant that an had not shared guard, there to serve as a forced Nazis, partici- has assisted or persecutory either kind of relief motives has He persecution, escapees in individual at under orders. pated had shot however, by prepon- a that he and other demonstrating acknowledged, the burden of outnum- guards significantly has not of the evidence Ukranian derance camp. The at the See 8 the Germans in such conduct. bered been involved Fedoren- court declined to revoke (asylum); § 8 C.F.R. district 208.13 C.F.R. that his citizenship it found ko’s because (withholding deportation). § 208.16
813
voluntary;
ing
service at Treblinka was not
it
inmates on
orders
the comman-
involuntary
reasoned that
acts should not
camp,
dant of the
fits within the statuto-
immigration.
exclude someone from
See
ry language
persons
about
who assisted
Fedorenko,
United States v.
455 F.Supp.
in
of civilians.
(S.D.Fla.1978).
893, 913
The law would
“[ojther
Id. The court acknowledged that
keep
relatively
per-
out
innocent
may present
cases
more difficult line-draw-
camp
sons such as
per-
inmates forced to
problems,
but we
need decide
this
jobs
form
which
assisted
extermination
case.” Id.
process
way.
in some
Id.
Fedorenko,
Under
a court faced
reversed,
Fifth
The
Circuit
see United
with difficult “line-drawing problems”
Fedorenko,
(1979),
States v.
issued uniform and armed with a rifle record, we conclude that the Board did not pistol, and a paid stipend who was a and apply the in correct standard decid regularly allowed to leave the con- camp centration to visit a whether Hernandez had assisted or nearby village, and who shooting escap- admitted to at in persecution. Although the disagreement opin- expressed incident he his passing, its
Board cited Fedorenko
analysis
commander,
of
reflect the
ion does not
ORPA’s actions
his
with
have ana-
required. The Board should
opportunity
that at the first
available
evidence related
lyzed
pertinent
all the
escape
guerrillas.
he risked his life to
determine wheth-
conduct to
Hernandez’s
part of the
only
being
It focused
on his
101(a)(42)
er,
§§
purposes
group
villagers.
that shot at the
243(h)(2)(A),
culpable for
he should be held
very
from
The facts here are
different
Playa
at
assisting persecution
Grande.
Although
those
Fedorenko.
Fedorenko
Fedorenko,
512-13,
n.
449 U.S. at
See
was free to leave Treblinka from time to
Riad,
737;
at
1998 WL
time,
escape.
never tried to
*2.
fact that Hernandez had been
leave,
given any
escaped
and he
was never
Playa
shooting
Grande
involved
opportunity.
at
Fedorenko served
his first
“adequate to
by
held
the Board to be
year,
Hernan-
at Treblinka for over
persecu-
that he had assisted
indicate”
days
prisoner
spent
dez
as
analyzing
mentioning or
tion. Without
Unlike
Hernandez nev-
ORPA.
significant evidence that was rele-
any payment or reward from
er received
culpability, it conclud-
vant to Hernandez’s
by
risked his life
articu-
ORPA. Hernandez
had not met his burden of
ed that he
lating
disagreement
with ORPA’s vio-
that he had not
tactics,
and that he was therefore ine-
his commander’s
disobeying
lent.
ligible
withholding
of de-
directly
villagers,
to shoot
at the
orders
portation.
by fleeing
captors
from his
into Mexi-
co.
Fedorenko and his fellow Ukra-
While
noted,
the Board
the burden of
As
nians far outnumbered the Germans
proof
asylum applicant
to an
once
shifts
Treblinka, Hernandez
and two other
presented
mandatory
to show a
forced recruits were isolated within a
mean,
ground for denial. This does not
significant-
fifty guerrillas.
And
however,
necessarily
a petitioner
will
ly,
revealed his involve-
Hernandez himself
any
responsible for
involvement
be held
Rather, a court ment with ORPA to United States officials
persecutory group.
with a
the entire record in order to
important
must evaluate
in-
whereas Fedorenko omitted
whether
the individual should
determine
entry
formation on his
documents and cov-
personally culpable
held
for his conduct
up
ered
his connection with Treblinka.
purposes
against
The case
Hernandez is built
243(h)(2)(A).
Fedorenko, 449
See
description
action at
upon his own
case,
512-13,
n.
737. In this
S.Ct.
in it.
and his involvement
Grande
omitted
of the facts in the
the Board
most
nothing
suggest
There is
the record to
legal analysis.
It did not
record
its
that the
other source
uncontroverted testi
consider Hernandez’s
voluntary
of information than his own
tes-
mony that his involvement with ORPA was
timony.
It was Hernandez himself who
involuntary
compelled
at all times
facts,
good and the
revealed the
both the
no
threats of death and
he shared
immigration judge found his
bad. The
persecutory
guerrillas.
motives with the
*9
testimony completely
entire
credible —in-
testimony
Nor did it discuss Hernandez’s
participated
cluding his statements
Playa
the
Grande
only
because of
brutal and violent acts
life,
action in fear for his
that the com
real fear that he would otherwise be killed.
during
stood behind him
the
mander
attempt to discredit the
The Board did not
magazine
the
of his
shooting and checked
credibility findings,
it
afterwards,
hearing judge’s
immediately
rifle
after the
only part
story.
chose to look at
Since the Board erred as a matter of law
There
no evidence that
par- by
Hernandez’s
failing fully to analyze the record in
ticipation with
ORPA was not at all times
accordance with
we remand for
death,
compelled by fear of
its full
indicate that
consideration of the issue of eligibil-
any
ity
Hernandez shared
persecutory
mo-
requested
relief
tives, or to
show
he did not
Hernandez.
escape as
possible.
soon as
The Board should have
IV.
aspects
examined all
of Hernandez’s testi-
conclusion,
In
we vacate the order of
mony when
determining whether his con-
Board of Immigration Appeals and remand
duct constituted
in persecution.
assistance
to the Board for it to conduct a full Fedor-
If
analyzed
the record is
in accordance
enko analysis to determine whether Her-
standard,
with the
Fedorenko
Her-
nandez can be held to have “assisted or
may
nandez
be seen to have met his bur-
persecution”
within the
den
that he did not assist or
meaning
243(h)(2)(A)
participate
of others.
and for
other proceedings that
presented
Hernandez
credible and uncon-
may
Board
find necessary.
troverted testimony that he was unaware
guerrilla
ORPA was a violent
organi-
BEAM,
Judge,
Circuit
dissenting.
zation and that he
forcibly
recruited
It is my view that the Board of Immi-
compelled
join
it under threats of
(BIA)
gration Appeals
properly applied the
death. He
only partici-
testified that he
law in this case
fully analyzed
pated in
the action at
Grande be-
record
accordance with Fedorenko v.
cause he knew he would be killed if he did
States,
737,
United
Despite
not.
presence
of the com-
(1981). Thus,
Hernandez articulated his dis-
agreement with ORPA’s violent tactics to guerrillas commander and other
asked to be set free. The commander America, UNITED STATES of responded leave, that Hernandez could not Appellee, that he would be killed he asked to leave v. again, and ordered two guerrillas armed Henry TAYLOR, Jr., Appellant. guard him prevent him from escaping. No. 00-1425. Despite threats, explicit these escaped at his first opportunity available United States Court of Appeals, by placing great himself in danger. He Eighth Circuit.
was shot fleeing while and had to leave his Submitted: Feb. 2001. family and homeland behind. He had Filed: July 2001. been with ORPA for approximately twenty Rehearing and Rehearing En Banc days after his abduction before he fled. It Sept. Denied: was his misfortune that actively involved in violence that short
time he was participate forced to
in it.