Bojorquez Villanueva v. INS

• Court: Court of Appeals for the First Circuit
• Decided: October 21, 1999
• Docket: 99-1206
• Status: Published

Opinion

USCA1 Opinion

                 United States Court of Appeals

                     For the First Circuit


No. 99-1206



               SANTOS MANUEL BOJORQUES-VILLANUEVA,



                           Petitioner,



                                v.



             IMMIGRATION AND NATURALIZATION SERVICE,



                           Respondent.


PETITION FOR REVIEW OF AN ORDER 

              OF THE BOARD OF IMMIGRATION APPEALS


Before

                                

                     Boudin, Circuit Judge,

           Coffin and Campbell, Senior Circuit Judge.


Maureen O'Sullivan with whom Harvey Kaplan, Jeremiah Friedman,

and Ilana Greenstein were on brief for petitioner.

     Edward J. Duffy, Attorney, Office of Immigration Litigation, 

with whom Christopher C. Fuller, Senior Litigation Counsel, and

David W. Ogden, Acting Assistant Attorney General, Civil Division,

were on brief for respondent.


October 19, 1999


COFFIN, Senior Circuit Judge.  This is a petition for review

of a final order of deportation under the then applicable section

106(a) of the Immigration and Nationality Act, 8 U.S.C.   1105a(a)

(1995).  The specific issue is whether substantial evidence

supports the Board of Immigration Appeals' adverse finding of

credibility, leading it to dismiss petitioner's appeal from an

Immigration Judge's decision denying his request for asylum.

     Petitioner, a 26-year-old citizen of El Salvador, was placed

in deportation proceedings in May 1992, after entering the United

States without inspection.  He subsequently filed an application

for asylum, claiming that he and a brother had witnessed the

kidnaping of his uncle and father, the latter being a known

supporter of the government's military establishment, by guerillas

who later killed both men.  He feared the same fate if he were to

return to El Salvador.  

     The Board of Immigration Appeals, after reopening an

Immigration Judge's in absentia order of deportation for lack of

clear notice of hearing, and after rejecting the Immigration

Judge's adverse finding of credibility for lack of "specific and

cogent reasons," made its own de novo adverse finding of

credibility.  It found discrepancies in the testimony and exhibits

in the record that "are significant and go directly to the heart of

[the] asylum claim." 

     The Board acknowledged that such a kidnaping was consistent

with conditions in El Salvador in January 1992, but added:

          However, what cannot be explained by general country

     conditions is why the respondent alternatively stated

     that he had only witnessed his father's kidnaping, but

     not his uncle's, or that he witnessed both men being

     kidnaped; that after the uniformed men sent him away,

     that he never saw his father again, or that his father

     and his uncle were both paraded past his house; that his

     father had told him where they were going, or that he had

     not told him; and, most importantly, why his mother's

     letter conflicts with any of the versions of the story

     recounted by the respondent.



     After reviewing all of the testimony and documents in the

record, we affirm.

     The petitioner in a case such as this faces a heavy burden. 

To be eligible for asylum, he must establish through credible and

specific evidence in the record that his fear of persecution is

both genuine and objectively reasonable.  See Aguilar-Solis v. INS,

168 F.3d 565, 569-73 (lst Cir. 1999).  The BIA's determination that

the petitioner has failed to prove his case may be reversed only if 

the record, viewed in its entirety, would compel a contrary

conclusion. See id. at 569.  We add that an adverse credibility

determination cannot rest on trivia but must be based on

discrepancies that "`involved the heart of the asylum claim,'" De

Leon-Barrios v. INS, 116 F.3d 391, 393-94 (9th Cir. 1997) (citation

omitted).

     Petitioner criticizes the Board for overlooking "the true

story presented" of the murders -- a child's witnessing his

father's abduction, and a grief- and terror-stricken family -- and,

instead, focusing "its attention on minor, relatively

inconsequential details, . . . violat[ing] its responsibility to

review the record as a whole, with an eye to the cultural,

linguistic, and emotional hurdles unique to asylum applicants."

     To test the substantiality of the inconsistencies, we, like

the Board, consider the description of the underlying basis of

petitioner's fear in (1) his asylum application, dated July 5,

1994; (2) his declaration, filed with the application; (3) a letter

from petitioner's mother to his counsel, dated August 12, 1994

(which, contrary to petitioner's argument, was explicitly made part

of the record), and (4) petitioner's testimony at a hearing on

February 10, 1995.  We divide the various statements into three

headings: location of the abduction; details of the abduction; and

subsequent viewing of the victims.  We consider the statements in

the order in which they were made.

     Location.  In his application, petitioner stated that he and

his brother were working in a field when his father and uncle were

abducted.  In his testimony, however, he denied ever having said

that.  In the declaration, filed with the application, petitioner

stated that, after working on house repairs, he and his brother

were going to a field to get animals when the abduction took place. 

Petitioner's mother, in her letter, said simply that her husband

was taken from a peace meeting, without anyone noticing.  In

petitioner's testimony, some six months later, he said that he and

his brother were going with their father to an unknown destination. 

Indeed, he said that this was the only time they had ever gone with

their father when he did not tell them where they were going.

     Abduction.  In petitioner's application, he stated that three

men dressed in what looked like army uniforms abducted both his

father and uncle while he and his brother watched.  In his

declaration, filed at the same time, he stated that three men in

green uniforms with helmets took away his father.  He did not

mention seeing his uncle.  Petitioner's mother, in her letter, made

no mention of the uncle.  In his testimony, petitioner said that

two men in uniform took his father.  He said he did not see his

uncle.  He learned of his uncle's fate only when a son of his uncle

later told him.

     Subsequent viewing.  In petitioner's application, he stated

that, some time after the initial abduction, he saw his father and

uncle, their hands tied behind their backs, being taken by his

house.  The same observation was reported in his declaration.  The

mother's letter made no mention of this viewing.  Finally, in his

testimony, petitioner denied having made such a statement and said

that, after the abduction, he never saw his father again.  He

stated, however, that his father was taken past his house, without

indicating how he knew this. 

     Petitioner vigorously argues that these various versions were 

merely attempts to clarify, and that in fact they should enhance,

not diminish, his credibility, because they simplified rather than

embellished his case.  Perhaps petitioner so intended, but the

problem of inconsistencies remains.  His argument that his mother's

peace meeting version of the abduction merely indicates her

superior knowledge of where his father intended to go offers no

explanation why she made no mention of her sons' traumatic report

of the abduction.  Similarly, petitioner's argument that his father

had made an early statement about going to pick up animals but that

at the time of the abduction they were going "another way" without

any gear to use with animals cannot be reconciled with his

declaration that at the time of the abduction they were going to a

field to get animals.  These are not explanations; they are non

sequiturs.  

     What can we make of all this?  We confess our inability at

this juncture to penetrate to the absolute truth of what happened

on that day of alleged abduction in January 1992.  It may be

questioned why, in a guerilla-dominated area, guerillas would dress

in government clothing to seize a pro-government sympathizer.  It

may also be questioned how a brother of petitioner could continue

to live, apparently safely, in El Salvador.  Leaving such queries

aside, we acknowledge that petitioner's basic story could be true. 

     But can we say that the inconsistencies outlined above are at

most marginal, mere gossamer threads?  Or that they must all be

attributed to difficulties of language or understanding?  Or can we

say, as the dissenting Board member thought, that the Board's

emphasizing the significance of differing versions of a traumatic

event was "unsupported conjecture"?  

     Unlike the cases cited to us by petitioner, such as Canjura-

Flores v. INS, 784 F.2d 885, 889 (9th Cir. 1985), and Damaize-Job

v. INS, 787 F.2d 1332, 1337 (9th Cir. 1986), the inconsistencies

noted by the Board were more than several and more than minor, such

as an error in dates or a typographical error.  Petitioner calls

our attention to Cordero-Trejo v. INS, 40 F.3d 482 (lst Cir. 1994),

in which we held that the Board's negative credibility findings

were without record foundation.  That case is helpful because it

presents a Board decision that we felt comfortable in setting

aside.  Its credibility finding was based on one alleged

inconsistency that we deemed ephemeral (i.e., a supposed

inconsistency between calling attackers "unknown armed men" and

"death squads, id. at 488); a hypertechnical challenge to the

authenticity of documents; and eight "implausibilit[ies]," id. at

490.

     Here, in contrast, the multiple inconsistencies went to the

central facts of the triggering event.  The discrepancies concerned

the where, the who, the when and the what of the abduction.  And

the only alleged "implausibility" is the Board's observation that

if petitioner had in fact been present at such a traumatic event as

a kidnaping of his father, he would not likely have overlooked the

major details of that event.  But this is the very stuff of

legitimate impeachment.

     Moreover, not only were there multiple differences, but they

were not greatly separated in time.  The application and

declaration, prepared with the assistance of counsel, were dated

the same day; the mother's letter came a month later; and the

testimony followed six months later.  Petitioner stated that all

written statements had been read to him.  There was no attempt,

although there was ample time, to elaborate upon or explain the

mother's varying interpretation. 

     In short, we know of no principled basis for reversing the

Board's decision short of saying that an appellate court can

conduct de novo review of every non-frivolous case involving non-

English speaking parties.  This we cannot do.  The Board's finding

of adverse credibility was supported by substantial evidence, which

it succinctly summarized.  Its decision to allow timely voluntary

departure, or, failing that, to order deportation must be 

     Affirmed.