Unpublished Disposition, 912 F.2d 468 (9th Cir. 1984)

MEMORANDUM^* 

Jose Caceres-Cuadras petitions for review of the decision of the Board of Immigration Appeals denying his application for asylum and for withholding of deportation. This court has jurisdiction of Caceres' timely petition pursuant to 8 U.S.C. § 1105(a). We review the BIA's interpretations of law de novo and the factual findings underlying its decision under the "substantial evidence" standard. Ramirez Rivas v. INS, 899 F.2d 864, 866 (9th Cir. 1990). Damaize-Job v. INS, 787 F.2d 1332, 1335 (9th Cir. 1986); Argueta v. INS, 759 F.2d 1395, 1396 (9th Cir. 1985). We find that the BIA's decision to deny Caceres eligibility for asylum is not supported by substantial evidence.

FACTS

Caceres-Cuadras, a 38 year old native of El Salvador, entered the United States without inspection in May 1983. The government initiated deportation proceedings against him on January 24, 1984. Caceres, through his pro bono counsel, filed an application for asylum. At his deportation hearing on March 29, 1984, Caceres conceded deportability, but requested three forms of relief: withholding of deportation, asylum, or voluntary departure.

According to his testimony, Mr. Caceres, who can neither read nor write, grew up in a rural community, Canton El Nino, near San Miguel, El Salvador. He lived with his mother next door to his grandparents, his Uncle Raul, and some first cousins. He was "always together" with his cousins when they were growing up. He worked on his grandparents' farm and also helped his cousins and his uncle in their herbicide business. Uncle Raul and some of his sons belonged to a guerrilla organization called the "PCR" or "BPR." Caceres never joined the BPR and declined other invitations to join the guerrillas. In 1976, Raul and his sons moved to San Miguel, and Caceres visited them every weekend. According to Caceres, he moved to Guatemala in May 1982 to look for work after the sugar cane had been burned as a result of fighting between guerrillas and army troops. He took work in a cotton processing plant, but returned to El Salvador in March or May 1983 because the work in the cotton plant ended and he wanted to be with his mother and children.

Upon returning, Caceres learned that during his absence his family had encountered many political problems. These apparently stemmed from a government investigation initiated after one of Raul's daughters was shot to death as she walked to church. After the family claimed the body for burial, the government began an investigation and determined that the family was subversive. Caceres' uncle had been arrested in November and put into a jail for political prisoners. The youngest son, a member of a "mercy aid organization," the "Green Cross," also was put into a political prison. He later escaped and went to Washington, D.C. Caceres' grandparents, mother, brother and sister had left their home in El Nino and moved to San Miguel. His other cousins fled to the United States after their father's arrest. In addition, two other relatives had been tortured and killed by the death squad for providing food and water to guerrillas.

When Caceres returned to San Miguel, his mother met him at the bus station crying. She explained to him that it was not safe for him to return to El Nino because members of the Salvadoran Army and the death squads had come looking for him three times. She reported that once the soldiers had tied up Caceres' grandparents to force them to disclose his whereabouts. Caceres godfather similarly warned him. Caceres then went into hiding at the home of his aunt, too afraid to leave the house. Although he failed to mention this in his application for asylum, Caceres testified at his deportation hearing that during this period of hiding, a cousin who was a corporal in the Salvadoran military and who had served on the death squads came to visit him. Caceres' cousin told him that he was on a Salvadoran death squad list and showed Caceres a copy of the list. He told Caceres that the death squads believed a rumor that Caceres had participated with the guerrillas and warned him that he should leave the country. In May 1983, using false travel documents, Caceres left El Salvador hidden in a cousin's truck and came to the United States via Guatemala.¹ 

The Immigration Judge (IJ) denied Caceres' application for asylum and withholding of deportation, granting only his request for voluntary departure. The IJ, who rejected Caceres' testimony because of perceived inconsistencies, found that he had not met his burden of proof to qualify for either form of relief. Caceres appealed to the Board of Immigration Appeals (BIA), which dismissed his appeal on the grounds that his testimony was not sufficiently believable to support a favorable action and that there was no evidence of persecution because the government's actions against Caceres' relatives and its threatened actions against him were legitimate investigations rather than political persecution. Caceres appeals from that order.

DISCUSSION

To qualify for withholding of deportation under the Immigration and Nationality Act, a person must establish that it is more likely than not that if he is returned to his home country his life or freedom would be threatened because of his race, religion, nationality, political opinion, or membership in a particular social group. 8 U.S.C. § 1253(h) (1990). The petitioner must establish a "clear probability" of persecution by the government or a group that the government is unwilling or unable to control. INS v. Stevic, 467 U.S. 407 (1984); Artiga-Turcios v. INS, 829 F.2d 720 (9th Cir. 1987). The alien must provide some specific evidence; general evidence of violent conditions in the home country, while probative, is not sufficient. Artiga-Turcios v. INS 829 F.2d 720, 723 (9th Cir. 1987); Canjura-Flores, 784 F.2d 885, 888 (9th Cir. 1985). The alien need not, however, provide independent corroborative evidence of threats; credible testimony of specific threats supported by documentary evidence is sufficient to establish a clear probability of persecution. Artiga-Turcios, 829 F.2d at 723. In 1980, Congress amended the statute to remove the Attorney General's discretion in withholding of deportation proceedings; if the alien meets his burden of proof and he is not a security risk to the United States, the Attorney General is prohibited from deporting him. INS v. Cardoza-Fonseca, 480 U.S. 421, 429 (1987); INS v. Stevic, 457 U.S. at 422 n. 15; Canjura-Flores, 784 F.2d at 888.

To establish eligibility for political asylum under the Act, an applicant must show that he has a well-founded fear of persecution on account of one of the same five enumerated grounds. 8 U.S.C. § 1101(a) (42) (A) (1990). To establish a well-founded fear of persecution, the alien must establish that he has a genuine subjective fear, and that his fear has an objectively reasonable basis, i.e., there must be some reasonable possibility of persecution. This is a less demanding test than the "clear probability" test for withholding of deportation. See INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); Rodriguez v. INS, 841 F.2d 865 (9th Cir. 1987). However, unlike in the case of withholding of deportation, if the alien makes the required showing for asylum, relief is not mandatory but may be granted as matter of the Attorney General's discretion. 8 U.S.C. § 1158(a); INA Sec. 208(a).

Caceres argues that there is a clear probability, or at least a well-founded fear, that he faces persecution by the military and death squads by virtue of his association with his uncle and cousins, and that he presented ample specific evidence to justify granting him relief from deportation. Specifically, he claims that his family is his social group and that their political opinions are being imputed to him--that he is being singled out for persecution because the government suspects that he was involved in the BPR guerilla organization.²  As specific evidence of his danger, Caceres testified that members of his immediate family were killed because of their relationship with the guerrillas, that the authorities had come looking for Caceres at least three times and had tortured his grandparents in an attempt to locate him, that he was specifically warned that the death squad wanted to kill him, that his name was on a death list, and that the death squads had his picture.

The BIA, however, discounted Caceres' testimony as incredible because of what it viewed as the many inconsistencies in his testimony. First, the BIA concluded that Caceres made material misrepresentations concerning the chronology of his movements between countries. The government argues that if the alien makes material misrepresentations, corroborative evidence is necessary in order to establish a clear probability of persecution. It is true that testimony may be discredited by inconsistent statements as well as by the witness's demeanor. Saballo-Cortez v. INS, 761 F.2d 1259 (9th Cir. 1985). And it is true that Caceres presented inconsistent statements regarding the dates he left El Salvador and entered the United States. However, these dates are not relevant to his claim. Caceres' misstatements may or may not be misrepresentations rather than simple mistakes, but nowhere does the government indicate that they are in any way material, nor does the government indicate what Caceres could have believed he had to gain by providing this inaccurate information. See Damaize-Job v. INS, 787 F.2d 1332, 1335 n. 3 (9th Cir. 1986). As in Platero-Cortez v. INS, 804 F.2d 1127, 1131 (9th Cir. 1986), where the court discredited the BIA's reliance on the fact that the alien's testimony contained inconsistencies regarding dates of relocation and location of deaths, the cited inconsistencies in Caceres' chronology have no relevance to the merits of his claim and do not controvert his contention that he is subject to persecution if he is returned to El Salvador.

The BIA also relied on the fact that Caceres failed to mention in his application that he had lived in Guatemala, information that did not surface until the deportation hearing. The BIA points out that it is inconsistent with his statement in the asylum application that when he left El Salvador the final time, he only intended to go to Guatemala, but that he changed his mind when he realized how bad the situation was there. The BIA reasoned that since he previously lived in Guatemala, he would have known what the conditions were. Though the BIA probably is correct, this smacks of searching for excuses to discredit Caceres' story. Like the erroneous information regarding dates of relocation, this omission is irrelevant to the merits of Caceres' claim of persecution. As in Damaize-Job, 787 F.2d 1332, these errors are minor and "merely provide an excuse upon which to predicate a finding of no credibility." Id. at 1337.

Finally, the BIA found Caceres not credible because he failed to mention in his asylum application that his name had been placed on a death list. The BIA stated that they found it difficult to imagine how, in spite of nervousness, such a startling fact would not appear on an asylum application. The BIA found that Caceres' introduction of the death list information was an attempt to embellish his claim. While the BIA's conclusion is not implausible, Caceres' omission is not, as the BIA alleges, an inconsistency. It is simply a failure to be complete; an oversight does not constitute a misrepresentation. Although this court previously has noted that the failure to mention information in an asylum application is probative and may be considered by the Immigration Service when evaluating claims for relief, Rodriguez-Rivera v. INS, 848 F.2d 998, 1006 (9th Cir. 1988), credibility does not necessarily depend upon the time of an applicant's disclosure of information. Rather, it must be considered along with all other relevant factors. Here, the petitioner is illiterate, the application form was completed in English by someone other than the alien, and the omissions and inaccuracies do not refute the persecutory nature of the other actions taken by the Salvadoran government against members of Caceres' family.

The second ground relied on by the BIA in denying Caceres relief from deportation is that even if all his testimony were accepted, he nevertheless failed to demonstrate that he would be persecuted. Caceres claims that he is entitled to relief because his life and liberty in El Salvador were and would be seriously threatened because of his suspected involvement in guerrilla activities and his imputed pro-guerrilla sympathies. The government argues on appeal, and the BIA found below, that this does not constitute persecution under the Immigration and Nationality Act. The military's search for Caceres, the INS argues, is consistent with the right of a government to investigate individuals who may be in combat against it.

It is true that not all bad treatment by a government against its citizens constitutes political persecution as it is statutorily defined. And a government undoubtedly has the right to investigate guerrilla associates as well as to punish guerrillas. As the BIA's concurring opinion states, "Many persons engage in acts of violence against a state for political reasons. It happens in this country, it is happening in Northern Ireland, in Spain in the Basque Provinces, in Italy. In every case, the persons who carry out acts of violence in furtherance of political ends are subject to often severe punishment. This punishment is not normally labeled persecution. If a group were to seek the overthrow of the United States Government and plant bombs in federal court houses, the political objective would be clear and immediate. And every effort would be made to seek those 'terrorists' out and punish them." Administrative Record, at 10-11. However, if in the process of investigating political terrorism, the United States police force tortured suspects' grandparents and placed suspects on death lists, then those suspects should be entitled to protection by other countries.

In Blanco-Lopez v. INS, 858 F.2d 531 (9th Cir. 1988), we rejected an argument essentially the same as that urged by the INS here. The government, acting on a false tip that Blanco-Lopez was a guerrilla involved in gun-running, arrested, tied up, and threatened to kill him. In urging the court to affirm the BIA's refusal to grant relief from deportation, the INS argued that the Salvadoran police merely apprehended Blanco-Lopez in order to investigate criminal charges and that such investigations do not constitute persecution. This court squarely rejected that argument, holding that when a government harms or punishes someone without undertaking "any formal prosecutorial measures," the police activity is not an example of legitimate criminal investigation and prosecution, but rather is one of governmental persecution based on perceived political beliefs. Id. at 534. The government's effort to distinguish this case from Blanco-Lopez is unpersuasive. In its brief, the INS states that Blanco-Lopez is distinguishable because there the court found that instead of legitimately investigating a charge of gun-running, the police were actually persecuting Blanco-Lopez. This "explanation," however, merely restates the Blanco-Lopez court's conclusion.

More recently, in Ramirez Rivas v. INS, 899 F.2d 864 (9th Cir. 1990), we granted relief from deportation to a politically neutral applicant who feared persecution because of the government falsely imputing to her the political beliefs of relatives engaged in guerilla activity. The INS claimed that because the victims of most of the incidents cited by the applicant did in fact actively oppose the government, those persons were not persecuted, but rather were punished legitimately. In rejecting the INS' position, we relied on Blanco-Lopez, 858 F.2d 531, and the United Nation Handbook's statement at p 85 that punishment, even of those actually guilty of criminal acts, amounts to persecution on the basis of political opinion if the punishment is excessive or arbitrary and is inflicted with a political motive. As in these previous cases, the government activity that Caceres describes and that the documentary evidence corroborates simply is not a legitimate criminal investigation.

The INS also argues that the Immigration and Nationality Act protects only political opinion and not political activity. Again, this court already has considered and rejected the INS' position; we apply the Act to instances of political activity and imputed political activity as well as to simply verbal expressions of opinions. Blanco-Lopez, 858 F.2d at 533-34.

The INS argues that the BIA's finding that Caceres failed to establish that the dangers which he professed to fear constitute "persecution," is an interpretation of a statute which the agency has been charged by Congress with administering. Since, according to the INS, the Act contains no definition of either "persecution" or "political opinion," and there is no additional indication of legislative intent, the court should grant considerable deference to the executive department's construction. The INS, however, ignores the fact that neither it nor this court is writing on a clean slate. Although the statute does not define the relevant terms, and even assuming the INS may be correct in its assertion that there is no controlling legislative history, courts have given shape to the meaning of "persecution for political opinion" through the regular process of case by case adjudication. In any event, meaning of words is not the issue here. No one disagrees with the INS's claim that persecution does not include legitimate criminal investigations. The point of disagreement is whether or not the activity by the military that took place here constitutes a legitimate criminal investigation. This is a fact-bound inquiry and not the sort of question that is beyond ordinary knowledge or that depends upon the expertise of an agency.

CONCLUSION

The BIA's conclusion that the petitioner failed to establish a well-founded fear of persecution is not supported by substantial evidence. There is no dispute that Caceres presented candid and sincere testimony that he is genuinely afraid. Even if Caceres' testimony regarding his appearance on the death squad list is disregarded, his undisputed testimony that "authorities" came looking for him three times, on one occasion tying up his grandparents in an effort to locate him, because of his suspected involvement in guerrilla activity establishes that he has been "singled out." Documentary evidence that the military and the death squads kill and torture people who they suspect to be guerrillas further establishes that he has good reason to be afraid.

Accordingly, we reverse the BIA's denial of eligibility for political asylum under Sec. 208(a) of the Immigration and Nationality Act and remand the case for the Board to exercise its discretion in granting asylum.