Sаntiago PEDRO-MATEO, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 98-70535
United States Court of Appeals, Ninth Circuit.
Argued and Submitted March 10, 2000. Filed Sept. 14, 2000.
The government argues that Dickerson is distinguishable, because in that case the customs agents admitted that they did not know who had been in the plane during the intervening six-day period. See Dickerson, 873 F.2d at 1184-85.
The fact that the prosecutor tampered with a crucial piece of evidence in this case undermines the integrity of the verdict. The government‘s initial search of the black nylon bag did not reveal the bag‘s owner. The government had custody of the bag for over two years without discovering the bail reсeipt. At the first trial, moreover, the government did not have the benefit of Grimes‘s testimony or her statements to the officers, which the court initially excluded as hearsay. Thus, after the first day of the first trial, the government had no means of linking Edwards to the bag until the bail receipt was allegedly discovered by the prosecutor, who violated a local procedural rule by taking the bag back to his office and disassembling it after it had been introduced into evidence.
In addition to violating the local rule by taking the bag from the courtroom, the government failеd to take other necessary precautions. The police did not conduct a thorough initial search of the black nylon bag and never inventoried numerous papers belonging to Edwards that were seized from the inside of the car. The government‘s failure to keep an accurate record of these papers heightens the suspicion that the bail receipt could have come from somewhere other than the black nylon bag.
In light of the foregoing, we conclude that the bail receipt should have been excludеd at the second trial.
We hold that the admission of the bail receipt was not harmless error because Grimes‘s equivocal testimony, standing alone, is insufficient to support a conviction beyond a reasonable doubt. Grimes never linked Edwards to the black nylon bag containing cocaine, nor could she identify the bag she saw Edwards carrying when he left the house, other than to provide a vague description that it was a “dark colored bag.” Furthermore, Grimes admitted that she was drunk that night, couldn‘t see that well, and that she and Edwards owned three different sеts of luggage.
During closing argument, the government conceded that the bail receipt “corroborated” Grimes‘s testimony. But the bail receipt did more than that—it provided a degree of certainty regarding ownership of the bag that Grimes‘s testimony could not supply. Because the bail receipt more likely than not affected the outcome of the trial, we hold that its admission was not harmless error.
III. CONCLUSION
We reverse and remand for further proceedings not inconsistent with the views expressed in this opinion.
REVERSED AND REMANDED.
Our conclusion that the bail receipt should hаve been suppressed does not end our inquiry. We also must address the harmless error standard. We are guided by the rule that evidentiary decisions will be reversed for an abuse of discretion only if such nonconstitutional error more likely than not affected the verdict. See Ramirez, 176 F.3d at 1182 (citations omitted).
Michelle Gluck and John D. Williams, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for the respondent.
Before: WALLACE, PREGERSON, and THOMAS, Circuit Judges.
Opinion by Judge WALLACE;
Concurrence by Judge PREGERSON
WALLACE, Circuit Judge:
Pedro-Mateo petitions for review of a decision by the Board of Immigration Appeals (Board) denying him relief from deportation. The Board exerсised jurisdiction pursuant to
I
Pedro-Mateo is a Kanjobal Indian from Guatemala. In October 1991, he was kidnaped by soldiers from his village in the highlands of Huehuetenango. While in custody, Pedro-Mateo was beaten repeatedly after hе refused the soldiers’ demands that he join the army. When the army discovered that Pedro-Mateo was less than 18 years old, they released him.
A few weeks later, Pedro-Mateo was kidnaped again, this time by the guerrillas. He once again refused to join, and once again was bеaten. The guerillas held him for several days until they, too, discovered that he was less than 18 years old and released him.
Three months later, Pedro-Mateo entered the United States without inspection at Nogales, Arizona.
II
Section 208(a) of the Immigration and Nationality Act (Act),
Section 243(h) of the Act,
The Board‘s purely legal interpretations of the Act are reviewed de novo, but are generally entitled to deference under Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). Ghaly, 58 F.3d at 1429. The Board‘s factual determinations, including its finding of whether an applicant has demonstrated a “well-founded fеar of persecution,” are reviewed for substantial evidence. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Under the substantial evidence standard of review, the court of appeals must affirm when it is possible to draw two inconsistent conclusions from the evidence. Lambert v. Ackerley, 180 F.3d 997, 1012 (9th Cir.1999) (en banc). The substantial evidence standard of review is “highly deferential” to the Board, Pal v. INS, 204 F.3d 935, 937 n. 2 (9th Cir.2000), and for us to disturb the Board‘s decision, Pedro-Mateo must show that “the evidence not only supports ... but compels” reversal. Elias-Zacarias, 502 U.S. at 481 n. 1 (emphasis in original).
III
Pedro-Mateo raises the issue of whether “forced recruitment” by the Guatemalan government or the guerillas should be considered рersecution “when it is directed in a discriminatory manner,” implying that if the answer is yes, he should prevail. However there is an initial question: whether Pedro-Mateo has established that he was forcibly recruited on account of any of the statutorily prohibited reasons.
At the deportation hearing, the immigration judge (IJ) found that Pedro-Mateo had presented “no evidence whatsoever that [he] was persecuted on account of his religion as a Catholic or as an indigenous Indian,” as Pedro-Mateo claimed. On appeal, the Board аgreed, finding that Pedro-Mateo failed to establish that either the military or the guerillas were interested in recruiting him for any reason other than his physical presence in a particular war torn region of Guatemala.
In his petition, Pedro-Mateo argues that the Board‘s ruling should be overturned because “there is adequate evidence in the record to show that [he] was persecuted because of his race and his membership in a particular social group.” Pedro-Mateo‘s descriptions of his social group, however, arе shifting and muddled. In his trial brief before the IJ, he referred loosely to both the “Indian race in Gua-
Pedro-Mateo points to items in the record purporting to demonstrate the merit of his position. These items (such as an Amnesty International report, a rеport prepared by an immigration law clinic at a law school, and a book about the Guatemalan war) do not indicate that the Kanjobal Indians have been recruited because of their race, political opinion, or any other protected ground. What they indicаte, tragically, is that wherever the guerillas clash with the Guatemalan Army, civilians are forcibly recruited by both sides to serve in the conflict.
According to the State Department report, Indians account for forty-four percent of the Guatemalan population, and they comprise the vast majority of the countryside where the guerrillas are active. When great numbers of civilians in disputed areas are forcibly conscripted by both sides in a guerilla war, it is inevitable that rural Indians will be among them in substantial numbers. To qualify for asylum, however, an alien‘s predicament must be “appreciably different from the dangers faced by the alien‘s fellow citizens.” Vides-Vides v. INS, 783 F.2d 1463, 1469 (9th Cir.1986). Indigenous people comprising a large percentage of the population of a disputed area have not been demonstrated to be a “social group.” Pedro-Mateo offers neither case law nor analysis to contradict our previous statement that the “prototypical example” of a social group would be “immediate members of a certain family.” Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir.1986) (rejecting suggestion that “young, working class, urban males of military age” in El Salvador could be considered a social group for which the immigration laws provide protection from persecution); see also Li v. INS, 92 F.3d 985, 987 (9th Cir.1996) (rejecting “low economic status” as social group). We hold that Pedro-Mateo has failed to prove persecution on account of his “membership in a particular social group.”
Absent evidence to compel an alternate conclusion, this case is squarely controlled by Elias-Zacarias, where the Supreme Court held that absent evidence of discriminatory purpose, a guerilla organization‘s attempts to force a person to join them is insufficient to compel a finding of persecution on account of political belief. Elias-Zacarias, 502 U.S. at 482-83. Pedro-Mateo‘s situation is substantially the same as Elias-Zacarias‘. He objects that he cannot be expected to provide direct proof of his persecutors’ motives. We do not require that. But since the statute makes motive critical, he must provide some evidence of it, direct or circumstantial. And if he seeks to obtain judicial reversal оf the [Board‘s] determination, he must show that the evidence he presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution. That he has not done. Id. at 483-84.
PETITION DENIED.
PREGERSON, Circuit Judge, concurring in the result:
I concur in the denial of relief because there is absоlutely no evidence in the ad-
I write separately, however, for two reasons. First, because no evidence supports Pedro-Mateo‘s petition, it is not necessary for the court to decide whether Mayan Indians of Guatemala comprise a “social group” within the meaning of
Second, while Pedro-Mateo‘s petition fails for lack of evidence, I do not read the opinion as foreclosing relief to another asylum applicant who proceeds on the same theory as did Pedrо-Mateo. In other words, an asylum applicant is entitled to relief if he shows that an army selectively recruited members of a protected group, regardless of whether the army also conscripted “a large percentage of the population of a disputed area.”