Ubau-Marenco v. Immigration & Naturalization Service

67 F.3d 750, 95 Daily Journal DAR 11981, 95 Cal. Daily Op. Serv. 6988, 1995 U.S. App. LEXIS 24706
CourtCourt of Appeals for the Ninth Circuit
DecidedSeptember 5, 1995
DocketNo. 93-70777
StatusPublished
Cited by2 cases

This text of 67 F.3d 750 (Ubau-Marenco 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
Ubau-Marenco v. Immigration & Naturalization Service, 67 F.3d 750, 95 Daily Journal DAR 11981, 95 Cal. Daily Op. Serv. 6988, 1995 U.S. App. LEXIS 24706 (9th Cir. 1995).

Opinion

CHOY, Circuit Judge:

I.

Dr. Alfredo Cesar Ubau-Marenco, his wife Sandra Zuniga de Ubau-Zuniga, and two of their children (collectively “petitioners”) appeal a final order of the Board of Immigration Appeals (“BIA”). The BIA dismissed their appeal from the Immigration Judge’s order denying their applications for asylum and withholding of deportation. 8 U.S.C. §§ 1158(a) & 1253(h). Petitioners appeal only the denial of their asylum claims.

Petitioners are natives and citizens of Nicaragua. Petitioners claim that they left Nicaragua in February of 1988 because they were being persecuted by the Sandinista authorities on account of their anti-Communist views. Petitioners assert that because of their political views, they would be subject to persecution should they be forced to return to Nicaragua.

At the deportation hearing, Dr. Ubau-Marenco testified on behalf of the petitioners. In Nicaragua, Dr. Ubau-Marenco’s parents owned a transportation business. But, [753]*753in 1979, the Sandinista authorities seized the business’ vehicles without compensation. After the seizure, his family continued to own a farm from which it sold rice to the Nicaraguan government. Then, in 1982, Dr. Ubau-Marenco purchased a pharmacy which he profitably operated with licenses from the government. At the time of the deportation hearing, his sister was still operating the pharmacy with the requisite licenses.

Dr. Ubau-Marenco attended medical school in Mexico from 1974 to 1978 and completed his studies in Nicaragua in 1986. He then successfully completed an internship under Cuban supervisors at the government-run General Hospital in Granada, Nicaragua from February 1987 to December 1987. At the deportation hearing, Dr. Ubau-Marenco testified that throughout his internship his Cuban supervisors mistreated him because he openly disapproved of the Communist system. In particular, he was required to embalm the cadavers of slain soldiers. Like several other doctors, he was required to examine young military recruits to determine their fitness to serve in the Sandinista Army.

Dr. Ubau-Marenco claimed that his outspokenness against the Communist system led to a poor recommendation from his supervisors, and he speculated that this resulted in his being sent to fight in the northern region of the country in January of 1988. Although he was required to fulfill his compulsory military service when his internship ended, Dr. Ubau-Marenco believed that this assignment was a form of punishment for his political views. After one week at the front, Mrs. Ubau-Marenco notified him that one of their sons was ill. The army gave Dr. Ubau-Marenco a one-week pass to return home.

Dr. Ubau-Marenco did not return to his post. On February 4, 1988, he left the country with his wife and two sons, leaving behind two daughters and numerous other family members. Dr. Ubau-Marenco was able to obtain passports and travel permission from a former patient who worked at the Immigration Office. Petitioners experienced no problems leaving the country. Dr. Ubau-Marenco testified that after his departure, Sandinistas came to his father’s house looking for him, and his father told them that he had left the country. Dr. Ubau-Marenco’s parents, two daughters and several siblings still remain in Nicaragua, apparently without incident.

From 1985 until his departure in 1988, Dr. Ubau-Marenco was a spokesperson for an organization that promoted private enterprise and industry, known as the Higher Council of Private Enterprise, or COSEP.1 He contends that the Sandinistas were hostile toward COSEP. On one occasion, members of the Sandinistas Defense Committee hurled sticks and rocks at the budding in which he was attending a COSEP meeting.

Mrs. Ubau-Marenco owned a small clothing manufacturing factory. Like the pharmacy, this business was operated with a license from the government. Petitioners claim that because of Mrs. Ubau-Mareneo’s membership in COSEP, the government cut off her fabric supply. However, Dr. Ubau-Marenco also testified that material shortages existed in all parts of the country.

Petitioners claim that several members of their family have been harassed by the San-dinistas. Dr. Ubau-Marenco testified that the school attended by the Ubau-Marencos’ children was attacked twice by members of the Sandinista Youth movement because the school was private and reputed to be “bourgeois.” Dr. Ubau-Marenco also reported that one of his sons was followed home by Sandinista Youth members. Two of Dr. Ubau-Marenco’s brothers have been arrested, one for black market trafficking and the other for being a “counterrevolutionary.”

In an opinion dated May 4,1989, the Immigration Judge found that petitioners had failed to establish eligibility for asylum or withholding of deportation and granted them thirty days’ voluntary departure under section 244(e) of the Immigration and Nationality Act. 8 U.S.C. § 1254(e).

Petitioners appealed to the BIA. With their appeal, petitioners submitted new, previously unavailable, evidence. In an Order dated August 30, 1993, the BIA dismissed the appeal after independently reviewing the [754]*754record. The BIA found that petitioners failed to establish that they were either persecuted in Nicaragua or that they had a well-founded fear of persecution on account of political opinion should they return. The BIA rejected the additional evidence petitioners submitted with their appeal.

Petitioners timely appealed the BIA’s decision, arguing that the BIA erred in finding that they were not eligible for a grant of asylum. Among other things, they maintain that the BIA failed to consider adequately the new evidence that they submitted with their appeal. Petitioners ask us to reverse and remand the BIA’s Order, instructing it to grant their asylum applications.

II.

Refugee status is extended to aliens who are unable or unwilling to return to their country of origin “because of persecution or a well-founded fear of persecution on account of ... political opinion.” 8 U.S.C. § 1101(a)(42)(A). As this court has recently reiterated, there are two steps in determining whether asylum applicants merit favorable relief. Kazlauskas v. INS, 46 F.3d 902, 905 (9th Cir.1995). Applicants for asylum must establish both that they are eligible for asylum because they are “refugees” within the meaning of the statute and because they are entitled to asylum as a matter of discretion. Id.; see 8 U.S.C. § 1158(a).

This court thus reviews BIA decisions denying asylum under a two-tiered standard. First, the BIA’s determination regarding refugee status must be upheld if it is “ ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ ” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 815, 117 L.Ed.2d 38 (1992) (quoting 8 U.S.C. §

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67 F.3d 750, 95 Daily Journal DAR 11981, 95 Cal. Daily Op. Serv. 6988, 1995 U.S. App. LEXIS 24706, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ubau-marenco-v-immigration-naturalization-service-ca9-1995.