Olimpia Lazo-Majano v. Immigration & Naturalization Service

813 F.2d 1432, 1987 U.S. App. LEXIS 4132
CourtCourt of Appeals for the Ninth Circuit
DecidedApril 2, 1987
Docket85-7384
StatusPublished
Cited by85 cases

This text of 813 F.2d 1432 (Olimpia Lazo-Majano v. Immigration & Naturalization Service) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Olimpia Lazo-Majano v. Immigration & Naturalization Service, 813 F.2d 1432, 1987 U.S. App. LEXIS 4132 (9th Cir. 1987).

Opinions

NOONAN, Circuit Judge:

Olimpia Lazo-Majano appeals from orders denying her asylum under 8 U.S.C. § 1158(a) and withholding of deportation under 8 U.S.C. § 1253(h). We reverse the Board of Immigration Appeals and remand for proceedings not inconsistent with this decision.

Events. Olimpia Lazo-Majano is a thirty-four year old woman. She is the mother of three children. In 1981, when she was twenty-nine, her husband left El Salvador for political reasons: he had been in the rightist paramilitary group known as OR-DEN; when he quit he was wanted by the guerrillas and distrusted by the government. Olimpia had always lived in the same small town. For five years she had been working as a domestic for another woman, getting a day off every fifteen days. In the middle of April 1982, she received a telephone call from Sergeant Rene Zuniga who had known her since childhood. He asked her to wash his clothes. Olimpia agreed.

On her day off during the next six weeks Olimpia worked for Zuniga at Zuniga’s place. Zuniga then pointed out that Olimpia’s husband was no longer in El Salvador and raped her. In Olimpia’s words: “With a gun in his hand he made me be his.”

In the following months Olimpia accepted Zuniga’s domination. She continued to wash for him on her days off. She accepted taunts, threats, and beatings from him. He broke her identity card in pieces and forced her to eat the pieces. He dragged her by the hair about a public restaurant. He pummeled her face, causing a blood clot to form in one eye; she thought that she had lost the eye. Olimpia became nervous, preoccupied, and depressed, ate little, and became thin and frail. She wanted to escape her tormentor but saw no way of doing so.

Central to the situation was the fact that Zuniga was a sergeant in the Fuerza Armada, the Armed Force which is the Salvadoran military. Zuniga used his gun in forcing Olimpia to submit the first time. On another occasion Zuniga held two hand grenades against her forehead. On another occasion he threatened to bomb her. When he referred to her husband, Zuniga said that if he returned Zuniga himself would cut him apart, kill both Olimpia and her husband and say that they were both subversives. Zuniga told Olimpia that it was his job to kill subversives.

Zuniga said to Olimpia that if she ever told on him he would have her tongue cut off, her nails removed one by one, her eyes pulled out, and she would then be killed. As Olimpia recalls his statement, he said: “And I can just say that you are contrary to us; subversive.” When he was angry with her in the restaurant, he told a friend from the police “in front of all the other people in the restaurant” that she was a subversive and that was why her husband had left: “because she was a subversive.”

Olimpia believed the Armed Force would let Zuniga carry out his threat. She believed that in 1979 a nineteen-year old boy she knew by sight had been tied, tortured and killed by the Armed Force; that in 1981 the husband of a neighbor had been taken away in a truck at night with fifteen others and killed by the Armed Force; that the Armed Force had raped “young college girls,” as had Zuniga himself. In her view there was nobody in El Salvador that could stop the Armed Force from doing such things. In her experience when Zuniga was dragging her by the hair in the restaurant no one helped because where the Armed Force is concerned, “no one will get involved.”

In 1982 Olimpia escaped from Zuniga, left El Salvador and illegally entered the United States. In January 1983, Olimpia was ordered to show cause why she should not be deported for entry without inspection. See 8 U.S.C. § 1251(a)(2). She admit[1434]*1434ted deportability and applied for political asylum, claiming fear of persecution by Zuniga. Her request was denied by Immigration Judge William F. Nail on March 23, 1984. On May 9, 1985, The Board of Immigration Appeals upheld Judge Nail’s decision and dismissed her appeal. It found that “the evidence attests to mistreatment of an individual, not persecution” and cited In re Pierre, 15 I & N Dec. 461 (BIA 1976) (a wife threatened with death by her husband, a high Haitian official, did not show persecution for a political opinion even though the government of Haiti would not restrain her husband). The Board declared as to the plight of Olimpia that it was “not unsympathetic with this deplorable situation” but “the fact remains that such strictly personal actions do not constitute persecution within the meaning of the Act.”

Statutory Framework. Two statutory schemes are available to an alien who resists deportation:

Section 243(h) of the Immigration and Nationality Act prohibits deportation of an alien whose “life or freedom would be threatened ... on account of ... political opinion.” 8 U.S.C. 1253(h). To satisfy section 1253(h), an alien must show a “clear probability” of persecution — that is, that it is “more likely than not” that he or she will be persecuted. INS v. Stevic, 467 U.S. 407, 424, 104 S.Ct. 2489, 2498, 81 L.Ed.2d 321 (1984); Vides-Vides v. INS, 783 F.2d 1463, 1466 (9th Cir.1984). This court reviews a denial of an application for withholding of deportation under the standard that the denial is to be upheld if supported by substantial evidence. Vides-Vides, 783 F.2d at 1466.

Section 208(a) of the Refugee Act of 1980 gives the Attorney General discretion to grant asylum to refugees. 8 U.S.C. § 1158(a). A “refugee” is an alien who is unwilling or unable to return to his or her former country “because of persecution or a well-founded fear of persecution on account of ... political opinion.” 8 U.S.C. § 1101(a)(42)(A). The “well-founded” fear standard is more generous than the “clear probability” standard for withholding of deportation, and the Board has an obligation to apply the standard set by the statute. Bolanos-Hernandez v. INS, 749 F.2d 1316, 1326 (9th Cir.1985). The Board in this case has not distinguished the two standards. As will be apparent, the failure is not at issue here because this case turns on the purely legal question concerning the meaning of “political opinion,” and whichever standard is applied in this case, the petitioner should prevail. If refugee status is established, we review the denial of asylum for an abuse of discretion. Vides-Vides, 783 F.2d at 1466. Because Olimpia applied for asylum after her deportation hearing, her application is also considered a request for withholding of deportation. See 8 C.F.R. § 208.3(b).

Analysis. Neither Immigration Judge Nail nor the Board doubted Olimpia’s story.

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813 F.2d 1432, 1987 U.S. App. LEXIS 4132, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olimpia-lazo-majano-v-immigration-naturalization-service-ca9-1987.