Mejia-Paiz v. Immigration & Naturalization Service

111 F.3d 720, 97 D.A.R. 4956, 47 Fed. R. Serv. 8, 97 Daily Journal DAR 4956, 97 Cal. Daily Op. Serv. 2815, 1997 U.S. App. LEXIS 7581

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 17, 1997
• Docket: No. 95-70174
• Status: Published

Opinions

Opinion by Judge SNEED; Dissent by Judge FERGUSON.

SNEED, Circuit Judge:

Leonel Antonio Mejia-Paiz petitions this court for review of the Immigration and Naturalization Service’s (INS) denial of his application for political asylum and withholding of deportation. Because substantial evidence supports the decisions of the immigration judge (“U”) and the Board of Immigration Appeals (“BIA”), we deny his petition.

I.

FACTS AND PROCEEDINGS BELOW

Petitioner, a citizen and native of Nicaragua, entered the United States without inspection in April 1985. He was detained shortly thereafter by immigration officials and was ordered by the INS to show cause why he should not be deported. In January 1990, petitioner appeared before the immigration judge, conceded deportability and requested political asylum. He fears upon returning to Nicaragua that he will encounter renewed persecution due to his affiliation with the Jehovah’s Witnesses Church. According to petitioner, the Sandinistas believe that the Jehovah’s Witnesses .Church is linked to the CIA.

Petitioner’s alleged problems began in 1979 when the Sandinistas gained control of Nicaragua’s government. He claims that the Sandinistas caused him to resign from his job, cancelled his food-ration card, forced him to attend and participate in political rallies, threatened him with death, and beat him on at least two occasions. At his deportation hearing, petitioner said that because he was a Jehovah’s Witness, the Sandinistas considered him a “contra-revolutionary.”

In support of his testimony, Petitioner introduced into evidence an affidavit from his brother attesting to petitioner’s membership with the Jehovah’s Witnesses. He also introduced newspaper articles which discussed, in general terms, the continuing political instability in Nicaragua. The IJ admitted a letter from the U.S. Department of State which stated in part: “the applicant has not established a well-founded fear of persecution upon return to Nicaragua ... Sandinista government-sponsored persecution of religious persons, including Jehovah’s Witnesses ... has of course ceased, and we have no reports of mistreatment since the Chamorro government took office.”

The IJ denied petitioner’s request for asylum and withholding of deportation and granted him voluntary departure. The IJ questioned the sincerity of the petitioner’s assertion that he was a Jehovah’s Witness, and a fortiori rejected his claims of past persecution. Likewise, the IJ determined that petitioner did not have a well-founded fear of persecution upon return to Nicaragua. Assuming, arguendo, that petitioner established past persecution, the IJ considered the Sandinistas’ defeat in 1990 to constitute a “change of circumstances” sufficient to defeat petitioner’s request.

The Board of Immigration Appeals accepted the IJ’s findings and dismissed the petitioner’s appeal. He then filed this petition for review.

II.

DISCUSSION

A. Standard of Review

The denial of asylum is reviewed for abuse of discretion. Kazlauskas v. INS, 46 F.3d 902, 905 (9th Cir.1995). “The factual findings underlying the decision are reviewed for substantial evidence, and the IJ’s determination should not be reversed absent compelling evidence of persecution.” Id. The Board’s findings of fact are conclusive and must be upheld “if supported by reasonable, substantial, and probative evidence on the record considered as a whole.” 8 U.S.C. § 1105a(a)(4). The decision to withhold deportation is also reviewed for substantial evidence. Kazlauskas, 46 F.3d at 907.

B. Substantial Evidence

This case presents a problem inherent in many, if not all, cases where an alien seeks to avoid deportation: the inescapable inability of the INS to demonstrate that the petitioner’s recital of past persecution is false. The events are distant and an investigation to determine truth is impracticable. As a consequence, the petitioner bears the burden of persuading the IJ that his evidence is credible, Saballo-Cortez v. INS, 761 F.2d 1259, 1262 (9th Cir.1985), and the IJ is entitled to evaluate assertions of past persecution in light of the strength or weakness of such other evidence as the petitioner may present.¹

Petitioner contends, to the contrary, that the absence of evidence contradicting his assertions should lead to a grant of asylum, noting that “the government did not show any lack of credibility.” In support of his argument, petitioner relies on this court’s decision in McMullen v. INS, 658 F.2d 1312 (9th Cir.1981). Specifically, petitioner calls to our attention the following passage in McMullen: “The INS did not submit evidence of its own which indicated that any of McMullen’s exhibits were inaccurate, nor did it submit independent evidence showing McMullen’s lack of credibility.” Id. at 1317. However, we have since limited the reach of this statement to the facts presented in McMullen. See Saballo-Cortez, 761 F.2d at 1265 (holding that McMullen does not compel a grant of asylum whenever the petitioner’s testimony is not contradicted by evidence presented by the INS).

As we have previously made clear, petitioner’s position would effectively shift the burden from the alien to the INS. Id. at 1265, n. 4. “This misconceives the deference due under the substantial evidence test,” and would create “a presumption of reversal unless the INS comes forth with the substantial evidence to disprove an alien’s uncorroborated testimony.” Id. Rather, the proper application of the substantial evidence test requires reversal only where the IJ’s conclusion lacks substantial reasonableness. See id.

C. Application of the Substantial Evidence Standard

Here petitioner failed to persuade the IJ that he was a credible witness. After considering all the evidence, the IJ stated: “The court questions the sincerity of the respondent’s claim to religion and membership in the Jehovah’s Witness.” Because petitioner’s status as a Jehovah's Witness was integral to his claims of past persecution, the IJ concluded that petitioner had failed to meet his burden of establishing a ground on which asylum could be granted. We must determine whether the IJ’s finding was “substantially supported by the evidence in the record.” Saballo-Cortez, 761 F.2d at 1262; Vilorio-Lopez v. INS, 852 F.2d 1137, 1141 (9th Cir.1988) (“This court reviews credibility findings for substantial evidence.”).

1. Well-Founded Fear of Persecution

To be eligible for asylum, an applicant must establish “either past persecution or a well-founded fear of present persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” Berroteran-Melendez v. INS, 955 F.2d 1251, 1255 (9th Cir.1992); 8 U.S.C. § 101(a)(42). The burden is on the applicant to establish eligibility. Acewicz v. INS, 984 F.2d 1056, 1061 (9th Cir.1993).

To establish a well-founded fear of persecution, an applicant for asylum must demonstrate both a subjective and an objective fear of persecution. Acewicz, 984 F.2d at 1061. The applicant must show both a “genuine” subjective fear and a “reasonable possibility” of persecution. Berroteran-Melendez, 955 F.2d at 1256. “An applicant’s candid, credible and sincere testimony demonstrating a genuine fear of persecution satisfies the subjective component of the well-founded fear standard.” Id. (internal quotations omitted). “The objective component requires a showing by ‘credible, direct, and specific evidence’ of facts supporting a reasonable fear of persecution.” Acewicz, 984 F.2d at 1061 (quoting Rodriguez-Rivera v. U.S. Dept. of Imm. and Nat., 848 F.2d 998, 1002 (9th Cir.1988) (per curiam)).

To repeat, petitioner’s application focuses primarily on his affiliation with the Jehovah’s Witnesses, a religion targeted by the Sandi-nistas for being counterrevolutionary. Petitioner also attributes his problems with the Sandinistas to his relationship with his brother, Mauricio Mejia-Paiz, an outspoken opponent of the Sandinista government.

Petitioner asserts that he lost his job at a bank on account of his religious beliefs, and because he resisted pressure to join a Sandinista-supported employee’s union. Petitioner also alleges that he was physically abused by the Sandinistas. Once, when he tried to secure his brother’s release from prison in 1984, he was insulted, beaten, and threatened with death. And again, following a “Contra”military offensive in 1985, he and other persons from his neighborhood were taken from their homes to a public plaza, forced to participate in a pro-Sandinista rally, and physically beaten when they refused. Petitioner decided to leave Nicaragua in 1985.

2. The IJ’s Credibility Finding

First, the IJ found that petitioner could have offered proof that he was a member of the Jehovah’s Witnesses but did not. The IJ reasoned that establishing membership through either a local or foreign church would have been a relatively uncomplicated task. We agree. In fact, the petitioner himself claimed in his application for asylum that many of his problems were due to the fact that there was proof of his membership “in the files of the Jehovah’s Witnesses Church,” presumably in Nicaragua. Petitioner cannot have it both ways. Proving one’s membership in a church does not pose the type of particularized evidentiary burden that would excuse corroboration. Cf. Gomez-Saballos, 79 F.3d at 916.

The IJ also gave little weight to the affidavit of petitioner’s brother because it failed to provide any basis for his knowledge that petitioner was indeed a Jehovah’s Witness. The IJ’s skepticism was reasonable under the circumstances. The affidavit contained no more than a lone assertion unsupported by explanation or corroborative facts.² The IJ found that petitioner’s entire family, including his brother, was Roman Catholic. This finding weakened petitioner’s credibility as to his religious affiliation.

Finally, the IJ also found that petitioner’s willingness to swear under oath undermined his claim that he was a Jehovah’s Witness. Based on his past experience with Jehovah’s Witnesses, the IJ took judicial notice that Jehovah’s Witnesses were prohibited from swearing under oath. The IJ noted that “many other Jehovah’s Witnesses who have appeared before this court have declined and indicated that it is ... prohibited by their religion to swear under God or swear under oath but would only affirm,.’’ The petitioner swore under oath on two occasions. We recognize that even a Jehovah’s Witness might have sworn under oath in the circumstances in which the petitioner found himself. Although we would consider this inconsistency, amongst a body of credible and persuasive evidence to the contrary, an inadequate basis for an adverse credibility finding, see Marbinez-Sanchez v. INS, 794 F.2d 1396, 1400 (9th Cir.1986), we find no fault in the IJ’s mention of it. It is but one of numerous telling details in this case.

Other telling details include inconsistencies in petitioner’s testimony. For example, petitioner first testified that the Sandinistas forced him to resign from his job in 1979. However, on cross examination, he admitted that he maintained his job until September 1983 — four years after the Sandinistas took control of the bank. Also, petitioner testified that he was forced to resign, in part, because he resisted pressure to join the UNE, a Sandinista-supported employees’ union. However, petitioner later acknowledged that he joined the UNE in 1979 and remained a member, albeit not an enthusiastic one, until he was terminated. These discrepancies are not minor. See Berroteran-Melendez, 955 F.2d at 1256.

In addition, petitioner had an astonishingly difficult time recalling when he became a Jehovah’s Witness. In spite of the IJ’s effort to clarify the issue, all petitioner could say was that it occurred sometime between 1974 and 1976. The dubiety of the IJ was enhanced, quite reasonably, by this inability to recall when he became a Jehovah’s Witness despite the fact that he asserts it caused him great suffering. Specifically, petitioner testified that his decision to become and remain a Jehovah’s Witness caused him to be fired from his job, physically beaten, threatened with death, and eventually required that he flee his homeland. Nonetheless, petitioner cannot recall whether he became a Jehovah’s Witness in 1974,1975, or 1976.

Our independent review of the record satisfies us that, in addition to the reasons expressed by the IJ, there are substantial gaps and inconsistencies in petitioner’s testimony. These reinforce the finding that petitioner was not a credible witness, a finding which must be given substantial deference by the reviewing court. Id. at 1256. We do not review the facts de novo; our inquiry is limited to a review of the record to determine whether the agency’s determination is substantially supported. Saballo-Cor-tez, 761 F.2d at 1266.

“Because [petitioner] failed to present candid, credible and sincere testimony demonstrating a genuine fear of persecution, he failed to satisfy the subjective component of the well-founded fear standard.” Berroter-an-Melendez, 955 F.2d at 1257-58. His request for asylum, therefore, fails.

D. Change of Conditions

The IJ also relied on a State Department letter for his alternative holding that, even had petitioner demonstrated past persecution, the subsequent defeat of the Sandinista government in 1990 constituted a “change of conditions” sufficient to rebut petitioner’s well-founded fear of persecution. In rebuttal petitioner argues that, under the Chamorro administration, the Sandinistas still control the military and the police, and thus, remain a significant threat to petitioner’s safety. Petitioner relies on newspaper articles to establish that he still faces a likelihood of persecution on return to Nicaragua. The. articles convey that politically motivated attacks by the Sandinistas have occurred after the election. However, it is not at all clear that these reports advance petitioner’s claim. See Sarvia-Quintanilla v. INS, 767 F.2d 1387, 1394 (9th Cir.1985) (requiring sufficiently specific evidence indicating that the alien’s predicament is appreciably different from the dangers faced by all his countrymen). They fail to mention incidents of religious persecution. Conversely, the State Department letter states that persecution of Jehovah’s Witnesses has ceased, and concludes, based on the “specific information” in petitioner’s request for asylum, that he has failed to establish a well-founded fear of persecution. Although it appears that the IJ’s reliance on the State Department letter was appropriate, see Osorio v. INS, 99 F.3d 928, 933 (9th Cir.1996) (requiring an individualized assessment of the effect of changed country conditions), we need not rely on the changed country conditions because the petitioner has failed to provide credible support for his assertion that he is likely to be persecuted under either the old or new government. See Berroteran-Melendez, 955 F.2d at 1257.

E. Withholding of Deportation

Because the standard for withholding of deportation is higher than the standard for asylum, and because petitioner failed to meet the lower standard for a grant of asylum, the BIA’s denial of withholding of deportation is supported by substantial evidence. See Acewicz, 984 F.2d at 1062.

III.

CONCLUSION

Substantial evidence supports the conclusion that petitioner failed to present credible evidence supporting his assertions of past persecution. Consequently, his- fear of persecution upon return to Nicaragua is not well-founded.

PETITION DENIED.

1 . This does not mean that corroborative evidence is necessarily required in all cases. We have recognized that an authentic refugee is often limited in his ability to offer direct corroboration of specific incidents of persecution. Turcios v. INS, 821 F.2d 1396, 1402 (9th Cir.1987). For example, where the particularized evidentiary burden is too great, we do not require that an alien produce independent evidence of a specific threat to his life. Gomez-Saballos v. INS, 79 F.3d 912, 916 (9th Cir.1996). "Therefore, an alien's unrefuted and credible testimony may be sufficient." Turcios, 821 F.2d at 1402.

2 . The affidavit stated only that Mauricio Mejia-Paiz knew that his brother was an active member of the Jehovah’s Witnesses.