Unpublished Disposition, 894 F.2d 410 (9th Cir. 1990)

MEMORANDUM^** 

Antonio Recinos-Ayala petitions for review of the dismissal by the Board of Immigration Appeals (BIA) of the appeal of his deportation order. The BIA found that he was not eligible for asylum because he did not have a well-founded fear of persecution, and that his conviction for indecent liberties was a "particularly serious crime" which barred him from withholding of deportation. Recinos-Ayala argues there were errors in the legal standards applied to his claim and that the findings were not supported by substantial evidence. He also argues that indecent liberties is not a "particularly serious crime" and disputes the finding that he is ineligible for withholding of deportation.

The petition for review is denied in part and granted in part. We affirm the BIA's finding that he is ineligible for the relief of withholding of deportation under section 243(h) because he has been convicted of a particularly serious crime, reverse the determination of ineligibility for asylum under section 208(a) because it is not supported by substantial evidence, and remand for the BIA to exercise its discretion with regard to the asylum application.

Antonio Recinos-Ayala is a 31-year-old native and citizen of El Salvador. At his deportation hearing in 1985, he admitted having entered the United States in 1980 without inspection, conceded deportability, and applied for asylum and withholding of deportation. He stated that he feared he would be killed if he returned.

The petitioner's credibility was not questioned by the Immigration Judge (IJ) or the BIA. A summary of his testimony follows.

Recinos-Ayala served in the army in El Salvador from 1975 to 1977. His unit often arrested and detained people, turning them over to the national guard or police. These people were interrogated, kept in prison, and sometimes killed. There were guerrillas active in the area at the time, "striking buses" and "burning warehouses." Although the guilty parties left quickly, his unit had to make arrests anyway, detaining people who had done nothing wrong.

During this time, his mother, sister, and several residents of his village were killed when a bus turned over on them. Although the government told him this was an accident, he believes it was an attack by guerrillas, possibly caused by his position in the army.

After leaving the army, he worked as a security guard. He belonged to no groups and was "not with the government or the guerrillas." He did not want to "disturb the country." In July, 1979, he received a notice requiring him to return to military service. Based on his past experience in the military, he did not want to serve because they had "many injustices," and because his religious beliefs led him to conclude the government was "not acting right" and was "against people that are not guilty of anything of the problems they have in the country." He left El Salvador, worked briefly in Belize and Mexico, and then came to the United States because he heard there were many jobs, better wages, and freedom.

Shortly after he left, government troops came to seek him at his house and, because of his absence, took away his younger brother Leopoldo. Leopoldo was never heard from again, and Recinos-Ayala refers to him as "deceased." The military ordered his father not to look for Leopoldo. In 1983, there was more violence against the petitioner's family after his cousin became active in antigovernment revolutionary politics. Government soldiers surrounded the home of the petitioner's uncle and killed the uncle's wife, three sons, and two daughters. In 1984, petitioner's older brother Manuel was conscripted into the army. Military authorities told him that if he did not stay in the army, he would "disappear." His father was threatened with death when he protested Manuel's conscription.

In 1984, Recinos-Ayala pled guilty to the charge of indecent liberties in the state of Washington. The child involved was six years old. Indecent liberties is a felony with a sentencing range of 12 to 16 months. He served 13 months of a 14 month sentence.

At his deportation hearing, petitioner submitted documentary evidence relating to human rights violations in El Salvador and conditions in the country. The IJ ignored this evidence; the BIA found the error harmless and gave the evidence "little weight" because it was general in character.

The BIA stated that, since there is no accepted presumption than an individual can refuse military service in his own country, the petitioner's decision not to reenlist was not a stance of political neutrality; therefore, his fear of persecution was not based on political opinion. The BIA was not persuaded that innocent people were arrested merely for looking "suspicious" and indicated Recinos-Ayala had not provided sufficient evidence to support the perception of innocence. Suggesting alternative explanations for the disappearance of Recinos-Ayala's younger brother and the deaths of his mother, sister,, and the entire family of his uncle, the BIA also stated that Recinos-Ayala had not shown a well-founded fear of persecution based upon any violence against his family. Finally, the BIA stated that he was ineligible for withholding of deportation because of his conviction for a "particularly serious crime."

Under Section 243(h) of the Immigration and Nationality Act, 8 U.S.C. § 1253(h) (1), the Attorney General "shall not deport ... 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 race, religion, nationality, membership in a particular social group, or political opinion." This relief is mandatory and has been referred to as a "prohibition against deportation." Bolanos-Hernandez v. I.N.S., 767 F.2d 1277, 1282 (9th Cir. 1985). In most cases, eligibility for withholding of deportation depends on whether the alien can prove a "clear probability" of persecution. Id. at 1281. However, under paragraph (2), this provision "shall not apply to any alien" if the alien, "having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of the United States." Section 243(h), 8 U.S.C. § 1253(h) (2). If the alien has been convicted of a "particularly serious crime," no determination need be made regarding whether he would otherwise be eligible for this relief. Ramirez-Ramos v. I.N.S., 814 F.2d 1394, 1398 (9th Cir. 1987).

An alien who has a "well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion," 8 U.S.C. § 1101(a) (42) (A), is eligible for the discretionary grant of asylum under Section 208(a) of the Refugee Act, 8 U.S.C. § 1158(a). A well-founded fear has both a "subjective" component, which is satisfied if the fear is genuine, and an "objective" component, which determines whether the fear is "well-founded." Hernandez-Ortiz v. I.N.S., 777 F.2d 509, 513 (9th Cir. 1985).

We have described the contours of this standard in various ways: "The objective component is satisfied if persecution is, in fact, a 'reasonable possibility,' " id. (quoting I.N.S. v. Stevic, 467 U.S. 407), or if there is "some basis in reality or reasonable possibility that a petitioner would be persecuted," Garcia-Ramos v. I.N.S., 775 F.2d 1370, 1374 (9th Cir. 1985). "The Supreme Court has suggested that a one-in-ten chance of the feared event occurring would make the fear well-founded." Arteaga v. I.N.S., 836 F.2d 1227, 1232-33 (9th Cir. 1988) (citing I.N.S. v. Cardoza-Fonseca, 480 U.S. 421 (1987)). Cf. Rodriguez-Rivera v. I.N.S., 848 F.2d 998 (9th Cir. 1988) (quoting evidentiary standards from Diaz-Escobar v. I.N.S., 782 F.2d 1488 (9th Cir. 1986)) (objective component requires showing by credible, direct and specific evidence of facts that support reasonable fear of persecution).

WITHHOLDING OF DEPORTATION AND THE "PARTICULARLY SERIOUS

CRIME"

If indecent liberties is a "particularly serious crime," Recinos-Ayala is not eligible for withholding of deportation even if he could show a clear probability of persecution. Ramirez-Ramos, 814 F.2d at 1398. The BIA found that indecent liberties was such a crime. We review de novo but with deference to the BIA's interpretation of the statute. Id. at 1396.

Neither the statutory provision nor its legislative history makes clear the meaning of the term "particularly serious crime." See Mahini v. I.N.S., 779 F.2d 1419, 1421 (9th Cir. 1986). Prior findings that a crime was "particularly serious" have involved drug trafficking, see Ramirez-Ramos, supra, Mahini, supra; armed robbery, see Matter of Carballe, Int.Dec. 3007 (BIA 1986); and first degree (aggravated) burglary, see Matter of Garcia-Garrocho, Int.Dec. 3022 (BIA 1986). "The record in most proceedings will have to be analyzed on a case-by-case basis" to determine the seriousness of the crime. In re Frentescu, 18 I & N 244, 247 (BIA 1982) (finding burglary was not a "particularly serious crime"). The BIA found indecent liberties with a six year old child "so inherently particularly serious by [its] very nature as to preempt the need to look behind the record of conviction to examine the surrounding circumstances." We do not endorse the reasoning which declared this crime "inherently particularly serious" on its face, but we affirm the finding that this offense was indeed a "particularly serious crime."

To determine the seriousness of a crime, the BIA has looked to the nature, circumstances and underlying facts of the conviction, the type of sentence imposed, and whether the type and circumstances of the crime indicate that the alien will be a danger to the community. Frentescu, 18 I & N at 247. Other factors which have been emphasized were whether the offense was a crime against a person, id.; see also Matter of Carballe, supra, and whether aggravating circumstances existed, Matter of Garcia-Garrocho, supra.

Applied to Recinos-Ayala's conviction, these factors establish its seriousness. First, indecent liberties is a "crime against the person." "A person is guilty of indecent liberties when he knowingly causes another person who is not his spouse to have sexual contact with him or another ... (b) when the other person is less than fourteen years of age...." Wash.Rev.Code Sec. 9 A. 44.100(1) (1988).¹  Also, the extreme youth of the child involved--far younger than the fourteen years of age which brings the crime within the statute--is an aggravating circumstance. Although the sentence is not particularly long, it is not short; the petitioner served close to the maximum sentence; the offense is a felony. Therefore, "indecent liberties" is a "particularly serious crime." Recinos-Ayala's claim of factual innocence is not relevant, since he clearly meets the statutory description of an alien who has "been convicted by final judgment." He is therefore ineligible for the relief of withholding of deportation under section 243(h) (2) (B).

ASYLUM UNDER SECTION 208(a)

In order to be eligible for asylum, the petitioner must have a well-founded fear of "persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a) (42) (A). The threat must be related to one of the factors enumerated in the statute. Maldonado-Cruz v. Dept. of Imm. & Naturalization, 883 F.2d 788, 791 (9th Cir. 1989) (quoting Hernandez-Ortiz, 777 F.2d at 516). "Choosing to remain neutral is no less a political decision than is choosing to affiliate with a particular political faction." Bolanos-Hernandez, 767 F.2d at 1286. Whether the petitioner's political position constitutes political neutrality and is therefore a political opinion within the meaning of the statute is a question of law which we review de novo. Maldonado-Cruz, 883 F.2d at 791.

The BIA stated that Recinos-Ayala's refusal to serve in the Salvadoran army is not a stance of political neutrality nor an expression of a political opinion. It is true that conscription to military service is not generally considered a form of persecution. Kaveh-Haghigy v. I.N.S., 783 F.2d 1321 (9th Cir. 1986). However, the BIA has confused the questions of the petitioner's political position (is this political neutrality?) with the reasons underlying his fear (is this persecution on account of political opinion?).

We have repeatedly noted that the desire to join neither side in a civil war is a stance of political neutrality. Bolanos-Hernandez, 749 F.2d at 1324-25; Vides-Vides v. I.N.S., 783 F.2d 1463, 1466, 1467 n. 2 (9th Cir. 1986) (desire to join neither side was "political opinion"). In Rodriguez-Rivera v. I.N.S., 848 F.2d 998, 1004-1005 (9th Cir. 1988), the alien had refused induction into the Salvadoran army and refused to join the guerillas. Although he argued that the BIA had erroneously concluded that his neutrality could not constitute a political opinion, we concluded that the BIA had in fact recognized that neutrality could constitute a political opinion, id. at 1004; however, the finding that he did not have a well-founded fear of persecution was supported by substantial evidence, id. at 1005-1006. Conscription to military service was not itself a form of persecution, and the instances of persecution recounted by the alien did not concern himself or his family. Id.

In our cases finding no "political opinion," the aliens had not had relationships with either competing faction or had not made affirmative choices regarding neutrality. In Saballo-Cortez v. I.N.S., 761 F.2d 1259, 1264 & n. 3, (9th Cir. 1985), the alien had not taken any political position when he had never belonged to any organization and had simply failed to join either side. In Lopez v. I.N.S., 775 F.2d 1015, 1016 (9th Cir. 1985), the alien had left El Salvador before the civil war began. He had demonstrated only apathy and had failed to take any political position; this did not constitute a stance of political neutrality.

In contrast, Recinos-Ayala expressed moral and religious objections to participating in the injustices which he saw the government and military commit. He formed these opinions in the course of the war in his country, when he was forced to arrest innocent people. It is also clear that he has taken a position in opposition to the guerillas. Although his discussion of the fate of his mother and sister is speculative, he blames the guerrillas for their deaths. When asked if he participated in organizations other than the military, he stated that he "did not want to disturb the country." His opposition to the positions taken by both sides in the war is political neutrality and, as our prior decisions make clear, a political opinion within the meaning of the statute.

The BIA was therefore mistaken in stating that his decision to reenlist was not a stance of political neutrality. The BIA stated that the petitioner would have to show some individual motive for his conscription, implying that the order to reenlist must have been caused by his political beliefs. This is simply a mistaken interpretation of the statute, which states that the feared persecution must be on account of political opinion. The petitioner has not claimed that his reenlistment notice was a form of persecution. Instead, he described the disappearance of his brother Leopoldo in retaliation for petitioner's refusal to reenlist, threats of disappearance against his brother Manuel in the event Manuel left the army after conscription, and death threats against his father for protesting Manuel's conscription. The persecution involved, therefore, is not simply conscription, nor ordinary sanctions for refusal to serve, but abuses committed against his family members, which in his account are clearly linked to the stance of neutrality.

The petitioner claims the IJ and the BIA did not apply the proper standard to his application. It is the BIA decision which is under review here; if the Board applied the correct standard, any error by the IJ is harmless. Rodriguez-Rivera v. I.N.S., 848 F.2d 998, 1002 (9th Cir. 1988). The question of whether the BIA applied the proper legal standard in determining the asylum claim is reviewed de novo. Florez-De Solis v. I.N.S., 796 F.2d 330, 333 (9th Cir. 1986).

In order to be eligible for the discretionary grant of asylum under 8 U.S.C. § 1158(a), an alien must be a "refugee" who demonstrates a "well-founded fear of persecution." This is a lower standard than the "clear probability" of persecution required to establish eligibility for withholding of deportation. Cardoza-Fonseca v. I.N.S., 480 U.S. 421 (1987).

It is not clear exactly what standard was applied to petitioner's claim. The IJ did not distinguish the standards and appears to have applied the higher standard. The BIA did not distinguish the two standards in this case. Instead, the BIA stated that it relied on the standards set forth in one of its own decisions, Matter of Mogharrabi, Interim Dec. No. 3028 (BIA 1987). The Mogharrabi decision acknowledged that the standards of well-founded fear and clear-probability could not be equated. Therefore, the I.N.S. argues that the BIA applied the correct standard.

However, Mogharrabi rejects the standard applied in the decisions of this court and adopts a "reasonable person" standard. Id. at 9. Administrative agencies are not free to refuse to follow unappealed circuit precedent in cases within the circuit. Spraic v. U.S. R.R. Retirement Bd., 735 F.2d 1208 (9th Cir. 1984). In Cardoza-Fonseca v. I.N.S., we strongly criticized just such an approach when the Board applied a higher standard to asylum claims despite Ninth Circuit caselaw to the contrary. 767 F.2d at 1453-54.

When faced with ambiguity in the standard actually applied, we have in the past looked both to the language of BIA decisions and to the cases and decisions on which they relied. See, e.g., Sanchez-Trujillo v. I.N.S., 801 F.2d 1571 (9th Cir. 1986) (occasional use of language indicating higher standard not dispositive, id. at 1579; BIA had explicitly stated decision was controlled by Ninth Circuit caselaw, id. at 1578). Here, neither makes clear the standard applied by the BIA. Since the decision under review does not specify whether it looks to Mogharrabi for its "reasonable person" approach or simply to recognize the lower contours of the "well-founded fear" standard, on remand the standard must be clarified and the proper standard applied.

The factual findings regarding Recinos-Ayala's fear of persecution are reviewed under the substantial evidence test. Arteaga v. I.N.S., 836 F.2d 1227, 1228 (9th Cir. 1988). We have described this test as a question of whether the finding is supported by substantial evidence, Garcia-Ramos, 775 F.2d at 1373, or "substantially reasonable" based on the evidence presented, Rodriguez-Rivera, 848 F.2d at 1001. Since the Board made no finding on petitioner's credibility, review is based on the presumption of credibility. Maldonado-Cruz v. I.N.S., 883 F.2d at 792 (citing Damaize-Job v. I.N.S., 787 F.2d 1332 (9th Cir. 1986)).

The BIA stated that petitioner had not given enough detail to persuade them that he arrested innocent people, because he had not shown how he could tell that they were in fact innocent. This is not an issue of credibility, but of whether he has alleged sufficient specific facts to support his asylum claim. However, the Board overlooked both specific facts from petitioner's testimony (the guilty parties disappeared as soon as they had finished their actions, yet he was required to carry out arrests anyway) and portions of the documentary evidence which tended to support Recinos-Ayala's account.²  Although this information did not speak to petitioner's individual claim, we have repeatedly noted that such evidence of general conditions is relevant to the determination of asylum claims. See, e.g., Hernandez-Ortiz, 777 F.2d at 515 (citing several cases).

The Board stated that Recinos-Ayala had not shown a well-founded fear of persecution based either on his avoidance of military service or on the experience of his family. However, petitioner's testimony does offer evidence of persecution of members of his family. Recinos-Ayala cannot rely on speculation regarding the fate of his mother and sister, since he offers no details to support his belief that their deaths were caused by guerrillas. However, he also described an attack on his uncle's house by government troops, which resulted in the death of his uncle's entire family. This killing was in retaliation for his cousin's anti-government political involvement. In contrast to the vague description of the bus incident, here he clearly identifies who did the killings (troops) and the reason for them (political repression).

The BIA's discussion of this event is conjectural and creates some substantial distortion of the testimony. The BIA refers to his cousin as a "guerilla"--a term Recinos-Ayala does not use--and suggests the cousin caused an armed confrontation in which the family died. No evidence supports this speculation. We have previously disapproved such selective misreading: when "the BIA's conclusions ... are based upon an inaccurate reading of the record and improper inferences ... we hold that those conclusions are not supported by substantial evidence." Del Valle v. I.N.S., 776 F.2d 1407, 1412 (9th Cir. 1985).

Like aliens in other cases which found a well-founded fear, Recinos-Ayala has described " 'specific incidents in which members of [his] family--a small, readily identifiable group--have been the victims of threats and acts of violence.' " Corado-Rodriguez, 828 F.2d at 629 (quoting Hernandez-Ortiz, 777 F.2d at 516). This incident shows at least that his family has been "particularly affected" by conditions in their country, and therefore helps support the claim for asylum. Del Valle, 776 F.2d at 1413 (9th Cir. 1985).

The petitioner's fear of persecution because of his refusal to reenlist is discussed supra. The BIA offers only conjecture to explain the disappearance of petitioner's brother Leopoldo: the suggestion that he may have been killed by "guerrillas." However, their father was ordered not to seek him in the army. The BIA offers no explanation of why military authorities would repress inquiries in the case of a military man killed by guerrillas.

The BIA's speculations in this case are in contrast to the evidence in other cases. In Rodriguez-Rivera, supra, the alien feared persecution by guerrillas and had refused induction into military service. He had been detained for conscription but escaped. "The application recounted no incident of persecution of Rodriguez-Rivera or anyone known to him...." Id. at 999. He had not been forced to participate in military detention of innocent people. In Matter of A-G, Int.Dec. 3040 (BIA 1987), cited by the BIA in the decision under review, the Board found no evidence that "the respondent would be required to engage in such actions as a member of the armed forces." Here, Leopoldo's disappearance is evidence of the possibility of persecution in response to the refusal to rejoin the military. Recinos-Ayala's own experience provides evidence on the human rights violations. Speculation about alternative explanations for the events described by the petitioner are not "substantial evidence" sufficient to support the BIA's decision.

The petition for review is denied in part and granted in part. We affirm the finding that indecent liberties is a "particularly serious crime" and bars the alien from the relief of withholding of deportation. The BIA's finding on the asylum claim is not supported by substantial evidence; we reverse this finding. The BIA correctly noted that the discretionary relief of asylum is not barred by the petitioner's conviction for indecent liberties, but no discretionary decision has yet been made on this application. Therefore, we remand for the BIA to exercise its discretion with regard to the application for asylum.

PETITION DENIED IN PART, GRANTED IN PART. REMANDED.