Wilfredo Mendoza Perez v. U.S. Immigration and Naturalization Service

902 F.2d 760, 1990 U.S. App. LEXIS 7163

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 7, 1990
• Docket: 89-70035
• Status: Published

Opinions

FARRIS, Circuit Judge:

Mr. Mendoza appeals the denial of his request for withholding of deportation and his application for political asylum. At issue is whether there was substantial evidence on which the Board of Immigration Appeals could affirm the Immigration Judge’s finding that Mendoza did not establish either a “clear probability of persecution” or a “well-founded fear” of persecution.

FACTS

Mendoza, an El Salvadoran, entered the United States without inspection on March 11, 1982, across the Mexican-American border. He was apprehended by the INS and deportation proceedings were started. On March 11, 1985, Mendoza conceded deporta-bility to the Immigration Judge and moved to remand for further consideration of his asylum application. This motion was denied and Mendoza appealed to the Board of Immigration Appeals, which denied the appeal and ordered voluntary deportation on October 25, 1988.

Mendoza bases his request for withholding of deportation and asylum on the fact that he was threatened with serious harm shortly before he left El Salvador. Mendoza was an accountant with the Salvadoran Communal Union for between three and five years, before he left the country. He described the Communal Union as a group that works with the American Institute for Free Labor Development to assist the formation of agricultural cooperatives among the peasants. Mendoza helped landless farmers form and manage the financial aspects of cooperatives throughout the countryside. He testified that this activity was questioned by the government, which viewed such work as encouragement to the peasants to join the guerrillas.

On February 7, 1982, Mendoza received a letter addressed to him at his home. The letter threatened that if Mendoza did not leave the country within forty-eight hours, he would suffer the consequences. Mendoza testified to knowing of others with the Institute who had received similar threats and had been killed, both before and after he fled. Mendoza’s father-in-law inquired of a friend in the local police department about the seriousness of the threat: The advice was to take the threat seriously and to leave the country. Mendoza’s employer had the same advice. There was testimony that after he fled men asked for him at his home, although no other members of his family reported being harassed or threatened in any way.

The Immigration Judge and BIA made no explicit finding on Mendoza’s credibility, therefore, for purposes of this review, we presume all of Mendoza’s statements to be credible. See Artiga Turcios v. INS, 829 F.2d 720, 723 (9th Cir.1987).

DISCUSSION

7. Withholding of Deportation: 8 U.S.C. § 1253(h)

Title 8 U.S.C. section 1253(h)(1) provides that

The Attorney General shall not deport or return any alien ... to a country if the Attorney General determines that such alien’s life or freedom would be threatened in such country on account of [1] race, [2] religion, [3] nationality, [4] membership in a particular social group, or [5] political opinion.

To qualify under this section the alien must establish “clear probability” of persecution, for one of the five reasons listed, by the government or a group the government cannot control, if the alien were to be returned to his country. See e.g., Artiga Turcios v. INS, 829 F.2d 720, 723 (9th Cir.1987). The specific evidence provided by Mendoza, if believed, is sufficient to establish the probability that persecution of him as an individual is “more likely than not.” See INS v. Stevic, 467 U.S. 407, 424, 104 S.Ct. 2489, 2498, 81 L.Ed.2d 321 (1984); Artiga Turcios, supra; Estrada v. INS, 775 F.2d 1018, 1021 (9th Cir.1985) (persecution must be directed at alien as an individual). Evidence of general violence in the alien’s home country is insufficient, although it may help support the alien’s specific claims. See Artiga Turcios, 829 F.2d at 723; Zavala-Bonilla v. INS, 730 F.2d (9th Cir.1984). We have allowed “[a]n alien’s own testimony regarding- the threats [to] establish[] a clear probability of persecution, if credible and supported by general documentary evidence that the threats should be considered seriously.” Artiga Turcios, 829 F.2d at 723; Bolanos-Hernandez v. INS, 767 F.2d 1277,1285 (9th Cir.1984).

Mendoza was directly, specifically, and immediately threatened by a group arguably tied to the government, yet not controlled by the government—a death squad. Mendoza’s threat was targeted at him individually. He failed to produce the actual letter that he allegedly received, but the fact of its receipt and content has not been contested. His wife also testified as to its existence and gave reasons for its destruction. There is testimony that others who worked for his organization were killed, which suggests that the persecutors were willing to act against individuals connected with such groups.

While there are stronger cases than Mendoza’s, involving actual beatings, assaults, and arrests of a petitioner or his family members, see, e.g., Desir v. Ilchert, 840 F.2d 723 (9th Cir.1988); Argueta v. INS, 759 F.2d 1395 (9th Cir.1985), Mendoza’s fear has a stronger evidentiary base than petitioners in other cases where we have reversed BIA’s denials for withholding deportation. For instance, in Artiga Turcios v. INS, 829 F.2d 720 (9th Cir.1987), the court concluded that “Artiga has introduced specific evidence that his life has been threatened because he is politically opposed to the anti-government guerrillas. Because he has been singled out and sought by men he reasonably believes to be guerrillas, the BIA’s conclusion that the petitioner failed to show he has been targeted for persecution is unreasonable.” 829 F.2d at 724. That he had been singled out was based on the following facts: He was former military and supposedly sought after by four unidentified men who were pointed out to him at a distance. He was sure they were guerrillas because (1) they knew his military nickname, (2) if from the military, they would have known his exact address and presumably would not have needed to “ask around” for him, (3) he did not recognize them, (4) he saw bulges in their clothing which he believed to be a new type of machine gun carried by the guerrillas, (5) he had read about former servicemen being targeted and killed by guerrillas. Artiga never had any contact with the men.

Accepting, as we do, that the threat to Mendoza was sufficiently specific and real and that persecution was “more likely than not,” Mendoza must also show that the persecution was a result of one of the five characteristics set forth in section 1253(h). In prior cases, we have considered the conduct of the victim, as well as the position and perspective of the alleged persecutor.

Section [1253(h) ] could be read as providing that only the alien’s race, religion, nationality, membership in a particular social group, or political opinion, not the persecutor’s, can be considered in determining whether oppressive conduct constitutes persecution. However, we do not believe the section may properly be given so restrictive or mechanical a construction. “Persecution” occurs only when there is a difference between the persecutor's view and that of the victim; it is oppression which is inflicted on groups or individuals because of a difference that the persecutor will not tolerate. See Sagermark [v. INS], 767 F.2d [645] at 649 [(9th Cir.1985)]; Kovac v. INS, 407 F.2d 102, 107 (9th Cir.1969). For this reason, in determining whether threats or violence constitute political persecution, it is permissible to examine the motivation of the persecutor; we may look to the political views and actions of the entity or individual responsible for the threats or violence, as well as to the victim’s, and we may examine the relationship between the two.

Hernandez-Ortiz v. INS, 777 F.2d 509 (9th Cir.1985). See also, Desir v. Ilchert, 840 F.2d 723, 727 (9th Cir.1988).

Given Mendoza’s involvement with a land reform organization and the apparent right-wing death squad, Mendoza’s testimony that his feared persecution is politically motivated finds support in the record. Cf Hernandez-Ortiz v. INS, 777 F.2d 509 (9th Cir.1985); Desir v. Ilchert, 840 F.2d 723 (9th Cir.1988); Artiga Turcios, 829 F.2d at 721.

We concluded in Artiga Turcios, that there was “no reasonable explanation on the record for any of [the four men’s] actions other than that the men sought forcibly to recruit Artiga to the guerrilla cause.” 829 F.2d at 724. Similarly, there is no reasonable basis for the threat to Mendoza except his ties to the Communal Union and its work with the peasants and land reform. See also Canjura-Flores v. INS, 784 F.2d 885 (9th Cir.1985), a second case where we reversed a BIA denial of withholding deportation.

The cases relied upon by the INS are distinguishable. For example, in Sarvia-Quintanilla v. INS, 767 F.2d 1387 (9th Cir.1985), the BIA’s denial of withholding deportation and asylum was affirmed. There were no specific threats. What was alleged as threats came from former associates in a leftist group the petitioner had dropped out of because of disagreement with its violent tactics. Affidavits relied upon by the alien failed to corroborate his testimony that specific threats had been made, nor suggest that his associates were looking for him or posed him a threat. Further, Sarvia’s credibility was very much in doubt because of an admitted history of dishonesty.

Estrada v. INS, 775 F.2d 1018 (9th Cir.1985), is another case where we affirmed the BIA’s denial of withholding of deportation and asylum. Estrada was a member of a right wing party, for which he distributed leaflets. He also worked as a farmhand and a messenger for the party’s leader, Ocampo. Estrada played soccer with a police team and learned of illegalities by the police, which he reported to Ocampo. Ocampo went public and Estrada was allegedly threatened, but he could not be at all specific as to the form, time, place, or source of the threats. Estrada left the country after he got an exit permit from the government. He never openly expressed a political opinion against the Guatemalan government because they might kill him. Ocampo was killed five years later and Estrada, because of his ties to Ocampo, feared for his life if he was returned to Guatemala. Supposedly, officials looked for him at his mother’s house. Estrada was never arrested, detained, or interrogated by any government officials. The BIA and Immigration Judge held that testimony regarding the threats was not credible. In affirming the BIA, we gave proper deference to the finding on credibility, noting that it was supported by the evidence. This is an important distinction from Mendoza, who is deemed credible.

When an alien’s testimony is credible, the BIA must point to substantial evidence in the record, that there is not a “clear probability” that the alien will be subject to persecution if the BIA denies withholding of deportation. See e.g., Sarvia-Quintanilla v. United States INS, 767 F.2d 1387, 1392-94 (9th Cir.1985) (threat speculative and lacking in detail); Quintanilla-Ticas v. INS, 783 F.2d 955, 957 (9th Cir.1986) (same). It failed to do so.

II. Political Asylum: 8 U.S.C. §§ 1101(a)m(A), 1158(a)

To qualify for political asylum the alien must show that his fear is “genuine,” Hernandez-Ortiz v. INS, 777 F.2d 509, 513 (9th Cir.1985), and, “by credible, direct, and specific evidence in the record,” Diaz-Escobar v. INS, 782 F.2d 1488, 1492 (9th Cir.1986), that persecution is a “reasonable possibility,” INS v. Cardoza-Fonseca, 480 U.S. 421, 440, 107 S.Ct. 1207, 1217, 94 L.Ed.2d 434 (1987), quoting INS v. Stevic, 467 U.S. 407, 425, 104 S.Ct. 2489, 2498, 81 L.Ed.2d 321 (1984). Past persecution alone may satisfy the requirement. See generally Desir v. Ilchert, 840 F.2d 723, 729 (9th Cir.1988).

The well-founded fear standard is easier to satisfy than the clear probability standard required for withholding deportation, see Cardoza-Fonseca v. INS, 480 U.S. 421, 449-50, 107 S.Ct. 1207, 1222-23, 94 L.Ed.2d 434 (1987), which Mendoza has satisfied. Thus Mendoza is eligible for asylum.

CONCLUSION

Mendoza’s testimony is presumed credible and evidenced a direct, specific, individual threat. There is insufficient evidence to deny Mendoza’s requests. We reverse the BIA’s denial of Mendoza’s request for withholding of deportation and his request for political asylum. Since asylum is at the discretion of the Attorney General, that portion of the case is remanded for the exercise of that discretion.

REVERSED AND REMANDED IN PART.