Unpublished Disposition, 911 F.2d 737 (9th Cir. 1990)

MEMORANDUM^** 

Victor Manuel Acosta Perez ("Acosta") petitions for review of a decision of the Board of Immigration Appeals ("BIA" or "the Board"). The BIA dismissed Acosta's appeal and upheld the immigration judge's denial of his requests for political asylum and withholding of deportation under sections 208 and 243(h) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 1253(h). The Board also upheld the immigration judge's denial of Acosta's motions for remand of his case to the Bureau of Human Rights and Humanitarian Affairs ("BHRHA") and for discovery of the basis of the BHRHA advisory opinion on Acosta's case. We have jurisdiction over the BIA's final order of deportation under 8 U.S.C. § 1105a. We grant the petition, reverse the BIA decision, and remand for further proceedings.

BACKGROUND

Acosta is a 30-year-old single man from the town of Metapan in the department of Santa Ana, El Salvador. He knew many members of the death squad unit in Metapan, and has personal knowledge of death squad practices. In 1977, a group of approximately 20 members of the Salvadoran Civil Patrol detained Acosta because he was not enlisted in military service. The Patrol held Acosta for two days. They beat him and deprived him of water, then released him after he convinced them that he was not old enough for military service. Sometime near June 1981, Acosta's aunt and uncle were murdered. Acosta testified that a death squad executed them during or after a military raid on El Cube, a small town near Metapan.

In late 1981, a member of the local death squad unit who was Acosta's friend told Acosta that Raul Perra, the commander of the death squad unit, had ordered Acosta to serve in the death squad. Acosta "refused to serve in the death squad." Acosta was then told that he was to serve "whether [he] liked it or not." He was told to present himself at the death squad unit headquarters within three days or leave El Salvador. Otherwise, he was told, he would receive a "surprise." Acosta "refused the offer." He testified that he did so because the death squads kill women and children.

Acosta left Metapan immediately after he was threatened. He remained in El Salvador for approximately four months, but never stayed in one place for long because, he testified, he believed that staying in one place increased his chances of being discovered by the death squad. Acosta carried a valid identification card, which he showed to Salvadoran authorities when stopped at government checkpoints.

In May 1982, Acosta left El Salvador and went to Belize, where he worked for approximately five months. In November 1982, Acosta went to Mexico, where he worked for approximately another five months. Acosta testified that he worked to make money for travel expenses. He entered the United States on April 23, 1983, and turned himself in to the Immigration and Naturalization Service ("INS" or "Service"), but did not request political asylum, apparently because he was not told that he could get a lawyer. He was either deported or voluntarily departed to El Salvador.

Acosta returned to Santa Ana¹  to visit friends for one day, then left Santa Ana and remained in El Salvador for ten days. He then went to Belize, where he stayed and worked for five or six months, again, he testified, to make money for travel expenses. On his way to the United States from Belize, Acosta was apprehended by Mexican immigration authorities in Nogales, Mexico, and was taken to Guatemala, where he was detained for five days. Acosta entered the United States for a second time on February 22, 1984. He again turned himself in to the INS. This time, he requested political asylum and withholding of deportation.

Acosta conceded deportability and an asylum hearing was held on June 19, 1984, before Immigration Judge William F. Nail, Jr. Acosta made two preliminary motions regarding the advisory opinion on his case issued by the BHRHA.²  He moved for remand of his case to the BHRHA for "further consideration of his asylum application" and for discovery of the basis of the advisory opinion. The immigration judge did not grant the motions, and admitted the advisory opinion into evidence.

In support of his political asylum and withholding of deportation requests, Acosta testified about the events leading to his departure from El Salvador, and stated that he feared that if returned to El Salvador he would be killed by the death squad for refusing to join. He also submitted background documentation on Salvadoran death squad activities and affidavits attesting to the dangers faced by young men in El Salvador.

The immigration judge denied Acosta's requests for political asylum and withholding of deportation. The BIA dismissed Acosta's appeal.

DISCUSSION

Acosta first contends that, by failing to grant his motions for remand of his application to the BHRHA and for discovery of the basis of the opinion letter, the immigration judge violated his right to "inspect, explain, and rebut" the advisory opinion under 8 C.F.R. Sec. 208.10(b) (1990). Acosta argues that the advisory opinion could be neither explained nor rebutted, because it contained no information specific to his application and because it did not explain the basis of its conclusion that he failed to establish a well-founded fear of persecution.³ 

The Fifth Amendment guarantees due process in deportation proceedings. Rios-Berrios v. INS, 776 F.2d 859, 862 (9th Cir. 1985). Aliens are also entitled by statute and regulation to certain specified legal protections--for example, a reasonable opportunity to present testimony in their own behalf, 8 U.S.C. § 1252(b); 8 C.F.R. Sec. 242.16(a) (1990), and the opportunity to inspect, explain, and rebut an advisory opinion from the BHRHA, 8 C.F.R. 208.10(b) (1990). Denial of statutory and regulatory rights "may constitute an abuse of discretion requiring remand," and if the prejudice to the alien is sufficiently great, denial of these rights may violate the constitutional guarantee of due process. Baires v. INS, 856 F.2d 89, 91 (9th Cir. 1988)

The immigration judge abused his discretion by denying Acosta's motions if his decision both violated Acosta's statutory or regulatory rights and caused Acosta prejudice. Castro-O'Ryan v. United States Dept. of Immigration & Naturalization, 847 F.2d 1307, 1313 (9th Cir. 1988). Here, because we hold that the immigration judge's failure to remand Acosta's application to the BHRHA or allow discovery against the BHRHA did not prejudice Acosta, we need not decide whether the regulations give Acosta a right to a more detailed advisory opinion. See Vides-Vides v. INS, 783 F.2d 1463, 1469 (9th Cir. 1986); Pereira-Diaz v. INS, 551 F.2d 1149, 1154 (9th Cir. 1977).

An alien in deportation proceedings is prejudiced when his or her rights are violated "in a manner so as potentially to affect the outcome of the proceedings." United States v. Cerda-Pena, 799 F.2d 1374, 1379 (9th Cir. 1986). We have rejected a procedural due process challenge similar to Acosta's on the ground that a petitioner failed to establish prejudice where the immigration judge ruling on the asylum application did not rely on an advisory opinion. Pereira-Diaz v. INS, 551 F.2d at 1153-54. In this case, there is no indication on the record that the immigration judge relied in any way on the advisory opinion in deciding Acosta's case. The BHRHA letter states that the BHRHA had no specific information on Acosta's case and indicates that the BHRHA based its opinion on the facts presented in Acosta's application. Acosta presented the same facts to the immigration judge and argued those facts through counsel at his asylum hearing.

Under these circumstances, remand to the BHRHA and discovery against the State Department would not have affected the outcome of the proceedings. If the immigration judge erred, then, Acosta was not prejudiced by the error.

II. Political Asylum and Withholding of Deportation

Acosta testified that he was approached by a member of a death squad in late 1981 and told that he had to join the death squad. He refused to join, and, as a result, his life was threatened. He was warned by the death squad member--his friend--that if he refused to join the death squad he should leave the country. Acosta contends that his refusal to join the death squad constituted a political choice to remain neutral, that the threat to his life constituted a threat of persecution on account of political opinion, and that he established both a well-founded fear and a clear probability that the threat would be carried out, i.e., that he would be persecuted by the death squad on account of his choice to remain neutral if forced to return to El Salvador.

The BIA concluded, and the INS now argues, that Acosta failed to show a well-founded fear of persecution and, a fortiori, a clear probability of persecution. We must determine whether the Board erred by finding that Acosta did not establish a genuine and objectively reasonable fear of persecution by the death squad based on his refusal to become a death squad member.

To be eligible for political asylum, an alien must first establish that he or she is a "refugee" under 8 U.S.C. § 1101(a) (42) (A). A "refugee" is one who is unable or unwilling to return to his or her country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Id. If the alien establishes statutory eligibility, the Attorney General may, as a matter of discretion, grant asylum. See Diaz-Escobar v. INS, 782 F.2d 1488, 1492 (9th Cir. 1986).

The well-founded fear standard has a subjective and an objective component. See Vides-Vides v. INS, 783 F.2d at 1469. A showing of "genuine fear" satisfies the subjective component. Diaz-Escobar v. INS, 782 F.2d at 1492. The objective component is satisfied by "a showing, by credible, direct, and specific evidence in the record, of facts that would support a reasonable fear that the petitioner faces persecution." Id. There must be some reasonable possibility of persecution. INS v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987); Hernandez-Ortiz v. INS, 777 F.2d 509, 513 (9th Cir. 1985).

Withholding of deportation is a second form of relief for aliens who fear persecution in their home countries. The Attorney General cannot return any alien to a country where his or her "life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group or political opinion." 8 U.S.C. § 1253(h). To be entitled to mandatory withholding of deportation relief, the alien must show a "clear probability of persecution," or that it is "more likely than not" that he or she will be persecuted if deported. See INS v. Stevic, 467 U.S. 407, 429-30 (1984). The "clear probability" standard that applies to withholding of deportation is less generous than the "well-founded fear" standard that applies to asylum requests. INS v. Cardoza-Fonseca, 480 U.S. at 421.⁴ 

The choice to remain neutral in a civil war constitutes "political opinion" under the Immigration and Nationality Act, Rodriguez-Rivera v. United States INS, 848 F.2d at 1004, and, further, refusal to join a death squad may constitute a political choice of neutrality, see Del Valle v. INS, 776 F.2d 1407, 1413-14 (9th Cir. 1985); Bolanos-Hernandez v. INS, 749 F.2d 1316, 1324-26 (9th Cir. 1984). The death squad threat in this case, aimed specifically at Acosta, thus constitutes a threat of persecution on account of political opinion, and may be grounds for relief.

The key question is whether "there is reason to take the threat seriously." Bolanos-Hernandez, 767 F.2d at 1285. If it is "more likely than not" that the threat will be carried out, the petitioner is entitled to withholding of deportation. If there is a "reasonable possibility" that it will be carried out, the petitioner is eligible for asylum. In determining the likelihood that the alien will be persecuted, "we examine the [persecutors'] will or ability to carry out the threat, not simply whether threats were made." Rodriguez-Rivera [ ], 848 F.2d [at 1006]; Arteaga, 832 F.2d 1232-33.

Elias Zacarias v. INS, No. 88-7507, slip op. 7719, 7726-27 (9th Cir.July 23, 1990).

We review factual findings underlying the BIA's denial of asylum and withholding of deportation under the substantial evidence standard. Canas-Segovia v. INS, 902 F.2d 717, 721 (9th Cir. 1990); see also Arteaga v. INS, 836 F.2d 1227, 1228 (9th Cir. 1988); Argueta v. INS, 759 F.2d 1395, 1396 (9th Cir. 1985).

The Board based its decision to uphold the immigration judge's denial of Acosta's political asylum and withholding of deportation requests on its findings that: (1) Acosta did not show that El Salvador's death squads forcibly recruit members; (2) Acosta's delay in leaving El Salvador in 1982 and his return to Santa Ana in 1983 undermined his claim of genuine and reasonable fear; and (3) Acosta failed to show that the death squad threat was serious because he did not "articulate" his decision to refuse to serve in the death squad and because he did not demonstrate that the death squad had the will or ability to carry out the threat against him. For the reasons stated below, we hold that these findings do not support the Board's conclusion that Acosta failed to establish eligibility for political asylum, and that Acosta established a reasonable possibility of persecution based on his refusal to serve in the death squad and, therefore, is eligible for political asylum. We conclude, however, that the Board's finding that Acosta was not entitled to withholding of deportation is supported by substantial evidence.

Acosta's case rests in large part on his own testimony. An alien's credible and persuasive testimony, standing alone, may establish eligibility for political asylum and withholding of deportation. Cardoza-Fonseca v. United States INS, 767 F.2d 1448, 1453 (9th Cir. 1985), aff'd, INS v. Cardoza-Fonseca, 480 U.S. at 421. We "consider the alien's testimony carefully because an alien seeking asylum is often limited in the evidence he can obtain to show proof of potential persecution." Platero-Cortez v. INS, 804 F.2d 1127, 1130 (9th Cir. 1986); see also Bolanos-Hernandez v. INS, 767 F.2d at 1285; Zavala-Bonilla v. INS, 730 F.2d 562, 565 (9th Cir. 1984). The Service argues that the BIA found that Acosta's testimony was not persuasive, and that, therefore, the testimony should be discounted. We have held that a specific, cogent reason must be given for rejection of testimony as not credible. See Vilorio-Lopez v. INS, 852 F.2d 1137, 1141 (9th Cir. 1988). The record reveals no specific finding, by either the BIA or the immigration judge, that Acosta's testimony was not credible or not persuasive.⁵  We, therefore, accept as credible Acosta's testimony. Damaize-Job v. INS, 787 F.2d 1332, 1338 (9th Cir. 1986).

The BIA first found that Acosta's testimony that a member of the death squad threatened him was not supported by evidence establishing that this was the method by which the death squads recruited new members. But Acosta's testimony amply demonstrated both that he had substantial knowledge of certain aspects of death squad activities and that the death squads at times forcibly recruit new members. Acosta testified that there is a death squad unit in his town, that many of his childhood friends are death squad members, and that he received information about the death squads from those friends. Acosta identified by name the commander of the death squad unit in his town. He then testified directly as to the death squad's recruitment techniques:

The law does not force a person to serve to an institution like the death squadron. But they force you, especially in the rural zones. They have patrol, and they make ... force the citizens because of their (indiscernible) through threats. Whoever does not serve will have to abandon his country. If not he will have to die.

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... Messages are always transmitted through the members of the institution.

While the background materials submitted by Acosta contain no specific information on death squad recruiting methods, Acosta was not required to provide independent corroborative evidence in support of his credible testimony. See Blanco-Lopez v. INS, 858 F.2d 531, 533 (9th Cir. 1988); Bolanos-Hernandez v. INS, 767 F.2d at 1285. The BIA incorrectly ignored Acosta's extensive testimony regarding death squad methods when it rejected his recruitment account.

The BIA next found that the fact that Acosta remained in El Salvador for four months before leaving, and the fact that, upon his return to El Salvador in 1983, he returned to his home town, undermined his claim of genuine and reasonable fear. We disagree.

First, we have discredited heavy reliance on the fact that an alien remains in his or her home country and travels with identification as a basis for finding that the alien has failed to show a well-founded fear of persecution. See Ramirez-Rivas v. INS, 899 F.2d 864, 871 (9th Cir. 1990); Turcios v. INS, 821 F.2d 1396, 1401-02 (9th Cir. 1987); Damaize-Job v. INS, 787 F.2d at 1336. In this case, the fact that Acosta remained in El Salvador for four months before leaving "has only marginal probative value." Ramirez-Rivas v. INS, 899 F.2d at 871. Acosta left his home town immediately after receiving the death squad threat and went to the other side of the country. During the four-month period he never stayed in one place for long, out of fear that he would be discovered. Under these circumstances, the fact that Acosta was in El Salvador for four months after being threatened is not substantial evidence that Acosta was not reasonably afraid of persecution.

Second, the BIA's finding that Acosta returned to his home town after reentering El Salvador in 1983 is barely relevant. Acosta returned to Metapan for just one day, to visit friends, and then left. That one-day visit is not substantial evidence that Acosta did not reasonably fear persecution.

Finally, the BIA found that Acosta failed to show that he faced a serious threat of persecution based on his decision to remain neutral because Acosta did not "articulate" his neutrality and because he failed to show that the death squad had the will to carry out the threat. The first finding is simply wrong. Acosta testified that, after receiving the message from the death squad commander, he sent back the message that he would not serve in the death squad. See Administrative Record at 117 ("I refused to serve the death squadron"); id. at 119 ("I refused the offer"). In fact, the INS concedes that Acosta refused to serve in the death squad. See Respondent's Brief at 4. The BIA's finding that Acosta did not articulate his neutrality is not supported by substantial evidence.

Nor is the BIA's finding that Acosta failed to show that the death squad had the will to carry out the threat supported by substantial evidence. We note, first, that the Board did not explain the basis of this finding. The INS now contends that the threat was not serious because it was a vague threat from an alleged member of the death squad who was Acosta's friend, and asserts that there is "no evidence in the record" to support the proposition that the death squads killed or harmed people who refused to join their ranks. Yet Acosta, who has knowledge of death squad practices, testified that " [w]hoever does not serve will have to abandon his country. If not he will have to die." He also testified that the death squad is "an institution that keeps its word, whatever," and that even his friends in the death squads would kill him if ordered to do so. In addition, members of Acosta's family were killed, apparently by the death squad, just months prior to the threat he received. All this testimony was corroborated by general accounts of extremely violent death squad activity. The death squads clearly are willing and able to kill those who do not follow their orders.

Acosta established a reasonable possibility that the threat against him, based on his decision not to serve in the death squad, would be carried out if he returned to El Salvador. The record strongly supports his contention that he genuinely fears such persecution. Under these circumstances, Acosta is eligible for political asylum, and the Board erred by upholding the immigration judge's denial of Acosta's asylum request.

While we conclude that Acosta has shown a well-founded fear of persecution by the death squad, we hold that the BIA was substantially reasonable in finding that Acosta failed to show a "clear probability" of persecution necessary to obtain withholding of deportation and, therefore, correctly denied his withholding of deportation claim. Acosta, according to the Board's findings, did not show that it was "more likely than not" or probable that he would be killed by the death squad for refusing to join. The evidence of the threat from the death squad member supports Acosta's claim of a well-founded fear of persecution. We conclude, however, that the BIA finding that this evidence does not rise to the degree of probability of persecution sufficient for withholding of deportation relief is supported by substantial evidence. See Garcia-Ramos v. INS, 775 F.2d 1370, 1373 (9th Cir. 1985); Arteaga v. INS, 836 F.2d at

CONCLUSION

The petition is granted. Acosta is eligible for political asylum. We, therefore, remand the case to the BIA to exercise its discretion under the Immigration and Nationality Act.

REVERSED and REMANDED.