Unpublished Disposition, 914 F.2d 262 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 914 F.2d 262 (9th Cir. 1989)

Jose Mauricio DOMINGUEZ-RIVERA, Petitioner,v.IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 89-70211.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 17, 1990.Decided Sept. 20, 1990.

Before ALARCON and POOLE, Circuit Judges, and WILLIAMS, District Judge.** 

MEMORANDUM* 

Jose Mauricio Dominguez-Rivera, a native of El Salvador, petitions for review of a decision of the Board of Immigration Appeals dismissing his appeal from an immigration judge's denial of his applications for asylum and withholding of deportation.

FACTS1 

Dominguez is a thirty-year-old citizen of El Salvador who entered the United States illegally in 1984. He grew up on a large farm called Santa Elena, four kilometers from the town of Zacatecoluca. The farm employed 150-500 workers depending on the season. Dominguez's father was the supervisor of the farm, overseeing the work in the fields, contracting and paying the workers. From ages 14-23, Dominguez was his father's helper and supervised about a hundred people when his father was unavailable.

At an unspecified time, some of the workers began to organize into "guerrilla groups," "something similar to a union." They held meetings with some members of guerrilla organizations outside the farm; these other people "gave them orders." They also held meetings on the farm, about seven of which Dominguez attended in place of his father who could not attend because of his alcoholism. At the meetings the workers discussed the treatment given to the people, the food, salary and conditions. Dominguez was expected to take messages to the employer. He also took messages from the employer to the workers. The workers, some of whom were guerrillas, demanded that Dominguez get a favorable response to their demands. Some of the demands he met; others he did not, explaining that only the boss had authority. The workers would then say that he, like his father, had a good life and that, contrary to his assertions, he did have power to make their lives better. They accused him and his father of supporting the landlord's ideas. When the landlord refused their demands, they burned crops and put signs on the farm walls reading, "Better salaries, better food, a better life condition, death to capitalism, death to the landlords." Several armed men came to Dominguez's home in October 1978, forced the door open, tied up his father, ordered the family to lie face down on the floor, and demanded arms and money. Another night they came looking for food and took all they found.

In August 1979 the workers threatened Dominguez and his father: "If you don't collaborate with our cause you and your father will pay the consequences." Dominguez refused to collaborate, explaining that he owed a duty to the property and the owner. Dominguez and his father then obtained a house in the city of Santa Tecla and spent a week there. After another meeting with the workers they returned to the farm, but they spent nights in Santa Tecla. The workers had told them they could return if they obeyed their demands. Even so, they continued to receive threats. Dominguez once saw a sign which said, "Death to the Dominguez family." Between 1979 and 1982, some nine bombs were placed near the door of his house; one permanently injured his little sister. On the walls and door of the house were put signs saying, "Traitors." On about three occasions, when government agents came to investigate the attacks, Dominguez gave names of guerrillas to the government.

The workers had said that the family had until 1983 to "integrate with them or they would kill us." In 1983, the workers again came to the house searching for arms and food. They told the family that they wanted the farm. Dominguez's parents then decided to leave the farm and move to Zacatecoluca. Dominguez stopped working at the farm and, after unsuccessfully looking for a job, began a carpentry and mechanics apprenticeship in Santa Tecla, which was farther from the farm than Zacatecoluca and where he felt a little bit safer. The apprenticeship paid a small salary. Later in 1983, his father, who had for a while worked at the farm during the day and spent nights in Zacatecoluca, stopped working at the farm as well and went to live in Santa Tecla. The father visits his family in Zacatecoluca once or twice a month. The supervisor who replaced his father on the farm is connected with the guerrillas, and guerrillas control the farm now. Dominguez's father still processes the payroll and delivers messages from the new supervisor to the owner; for this work he receives the same salary as when he supervised at the farm.

In May 1984, "unknown persons" tried to recruit Dominguez. They said, "You are the son of Miguel Dominguez who is working at the farm and he didn't want to help us with our cause.... Take care of yourself because you'll pay for the consequences, because you are a young man. What you can do is you can join our forces because you know a lot about our lives." Dominguez said he would join them because he was too frightened to say no. He did not, however, join them. In July 1984, some other persons, related to the previous recruiters, detained him briefly and asked him why he would not paint signs against the army; they later released him without harm. At the end of July they asked him again why he would not paint signs.

While Dominguez was living with his grandmother in Santa Tecla, the army took him to its headquarters to recruit him. His grandmother intervened on his behalf, and he was released. In August 1984 he received a telegram ordering him to report for military service. He ignored it. Dominguez has known people who were killed for failing to respond to such telegrams. He didn't respond because he felt that to do so would place his family in even greater danger from the guerrillas.

Dominguez left El Salvador soon after receiving this telegram. On direct examination, Dominguez testified that he obtained a passport at the beginning of 1984, before the army tried to recruit him. When confronted on cross with a copy of his passport dated August 1984, however, he testified that he obtained it then and left the country the same month; "I don't remember very well the date I obtained it, but I did obtain it that year."

Since Dominguez left El Salvador, his family has received phone calls from unidentified persons asking about him. Since his father left Zacatecoluca in 1983, people have tried to burn the house and posted signs reading "Traitors." Some guerrillas believe that Dominguez has given information about them to the government; threats have been made that he will have to pay the consequences for the deaths of some guerrillas. Dominguez has learned that a supervisor's helper on another farm was killed for refusing to collaborate with the guerrillas. Dominguez's father and a friend have sent letters advising that the danger to Dominguez's life is great, and he should not return. The friend wrote that the guerrillas had put signs on the wall of his house saying that "the sons of the Administrator of the Santa Elena farm will die." Dominguez's brothers have been sent to Santa Tecla because it is considered too dangerous for them in Zacatecoluca.

INS PROCEEDINGS

Dominguez was apprehended while trying to enter the United States without inspection. He was charged with deportability under 8 U.S.C. § 1251(a) (2). An order to show cause why he should not be deported and a warrant for his arrest were issued. Through counsel, Dominguez admitted all the allegations in the order and conceded deportability. He made a request for asylum under 8 U.S.C. § 1158, which is also construed as a request to withhold deportation under 8 U.S.C. § 1253(h). 8 C.F.R. Sec. 208.3(b). After a hearing, the Immigration Judge issued an oral decision denying both requests. Finding that Dominguez had not shown a well founded fear of persecution, the IJ denied the application for asylum. The IJ also found that Dominguez had not shown that if he did fear persecution, he feared persecution for one of the reasons listed in the statute. The IJ also indicated that he had reason to question Dominguez's credibility, but even assuming him credible and taking all facts as true, Dominguez had failed in his burden of proof for both asylum and withholding of deportation.

In an opinion dated March 31, 1989, the Board of Immigration Appeals dismissed his appeal. Dominguez timely petitioned this court pursuant to 8 U.S.C. § 1105(a).

STANDARD OF REVIEW

This court reviews for substantial evidence BIA's finding of whether the alien has established a well founded fear of persecution making him a "refugee" under 8 U.S.C. § 1101(a) (42) and thus eligible for asylum. Arteaga v. INS, 836 F.2d 1227, 1228 (9th Cir. 1988). Questions of law, such as whether BIA applied the correct legal standard, are reviewed de novo. Id.

The substantial evidence test "is essentially a case-by-case analysis requiring review of the whole record." Turcios v. INS, 821 F.2d 1396, 1398 (9th Cir. 1987). The court must consider the record as a whole, weighing both the evidence that supports and the evidence that detracts from the agency's decision. Desrosiers v. Secretary, 846 F.2d 573, 576 (9th Cir. 1988). The court must affirm where there is such relevant evidence as reasonable minds might accept as adequate to support a conclusion, even if it is possible to draw two inconsistent conclusions from the evidence. St. Elizabeth Community Hosp. v. Heckler, 745 F.2d 587, 592 (9th Cir. 1984). A reviewing court may not reverse BIA simply because it disagrees with the Board's evaluation of the facts. Diaz-Escobar v. INS, 782 F.2d 1488, 1493 (9th Cir. 1986).

Credibility findings are reviewed for substantial evidence. Turcios, 821 F.2d at 1399. Although this court grants substantial deference to credibility determinations made by immigration judges, Sarvia-Quintanilla v. INS, 767 F.2d 1387, 1395 (9th Cir. 1985), an IJ "who rejects a witness's positive testimony because in his or her judgment it lacks credibility should offer a specific, cogent reason for [his] disbelief." Turcios, 821 F.2d at 1399 (internal quotations omitted). " [N]o special deference is given to the derivative inferences the IJ draws from the findings of fact." Laipenieks v. INS, 750 F.2d 1427, 1438 (9th Cir. 1985) (Boochever, J. dissenting) (citing Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074, 1079 (9th Cir. 1977)).


DISCUSSION

The IJ found that he had reason to question Dominguez's credibility as to the threats against him (especially those that occurred after he had stopped working at the farm) and "some other points of record." The IJ held that even if he were to accept Dominguez's testimony as fully credible, he would still find that Dominguez had failed to meet his burden of proof.

Specifically, the IJ questioned the letter from Dominguez's friend which stated that guerrillas were looking for him and had threatened him, thinking it possibly manufactured. He also questioned whether "the bombings of the house and other threats and persecutions" occurred. His reasoning was not that he had a basis for considering Dominguez a liar or that Dominguez's demeanor as a witness made him suspicious; rather, he felt that the threats and bombings were not logically consistent with other elements of his story, especially the facts that the guerrillas had let him go and that his father had not been harmed.

BIA has the power to review the record de novo and to make its own findings of fact, including credibility determinations. Damaize-Job v. INS, 787 F.2d 1332, 1334 (9th Cir. 1986). Here, the Board interpreted the IJ's credibility finding as a plausibility finding; it held that Dominguez had not met his burden of showing a plausible fear of persecution. In Matter of Mogharrabi, Interim Decision 3028 (BIA 1987), BIA held that an alien's own testimony may alone be sufficient to meet his burden of proof "where the testimony is believable, consistent, and sufficiently detailed to provide a plausible and coherent account of the basis for his fear.... [T]he allowance for lack of corroborative evidence does not mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant." Id. at 10. Apparently BIA believed that the IJ had applied this rationale to disbelieve the threats and the friend's letter.

BIA's finding that Dominguez's story is not a plausible and coherent account is supported by substantial evidence. His self-proclaimed fear of political persecution by the guerrillas does not seem plausible in light of his father's continuing safety and the fact that the guerrillas three times released him without harm. We therefore find support in the record for the IJ's conclusion that some of the later threats, especially those mentioned with little surrounding detail in Dominguez's testimony about phone calls received after he left El Salvador, and in the father's and the friend's letters, might not have actually occurred. In addition, Dominguez's credibility is seriously undercut by the discrepancy in his testimony as to when he obtained his passport.

Even if we were fully to believe all of Dominguez's testimony, however, we would still find that he has not met his burden of showing eligibility for asylum.

An alien is eligible for a discretionary grant of asylum by the Attorney General under 8 U.S.C. § 1158(a) if he is a "refugee," that is, if he is unable or unwilling to return to his country of nationality "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." 8 U.S.C. § 1101(a) (42) (A) (1982).

Dominguez claims that he will be subject to persecution from both the government and the guerrillas. To justify his fear of the government, he points to the army's attempt to recruit him in July 1984, the telegram ordering him to report for duty which he received in August 1984, and his acquaintance with people who have been killed for failing to report for military duty. The IJ and BIA rejected this claim on the ground that when a sovereign government drafts its citizens in order to protect the country, it is not engaging in persecution. Kaveh-Haghigy v. INS, 783 F.2d 1321, 1323 (9th Cir. 1986). BIA's finding is supported by substantial evidence.

Dominguez also argues that he has actually suffered persecution in the past. Persecution for asylum purposes has been defined in this circuit as involving " 'the infliction of suffering or harm upon those who differ (in race, religion or political opinion) in a way regarded as offensive.' " Cardoza-Fonseca, 767 F.2d 1448, 1452 (9th Cir. 1985) (quoting Kovac v. INS, 407 F.2d 102, 107 (9th Cir. 1969)), aff'd, 480 U.S. 421 (1987). "Persecution does not require an arrest." Turcios, 821 F.2d at 1402. While it is true that some serious incidents occurred when the family was living on the farm, events since then cannot be characterized as past persecution. The guerrillas have not harmed Dominguez nor detained him for any significant period of time. Cf. Desir v. Ilchert, 840 F.2d 723, 729 (9th Cir. 1988) (alien who had been beaten, arrested, and shot at was held to have been subjected to past persecution for asylum purposes).

In addition, the threats and bombings that the family suffered while living on the farm do not appear to have been politically motivated. Dominguez became embroiled in a violent labor dispute because he was associated with the landlord. The workers criticized and threatened him because he was not able to obtain for them the wages and working conditions they desired, not because of any political views he held on land reform or the redistribution of wealth in El Salvador.

The test for whether an alien has a well founded fear of future persecution includes both a subjective and an objective component. Desir, 840 F.2d at 726. The subjective component is met if the fear is "genuine." Id. (quoting Hernandez-Ortiz v. INS, 777 F.2d 509, 513 (9th Cir. 1985)). "The objective component requires a showing, '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. at 440...." Id. The Cardoza-Fonseca Court offered a hypothetical situation in which a one-in-ten possibility of persecution could be sufficient to establish a well founded fear. 480 U.S. at 431.

" ' [C]onditions in the [alien's] country of origin, its laws, and the experiences of others' are relevant." Hernandez-Ortiz, 777 F.2d at 513 (quoting Bolanos-Hernandez v. INS, 767 F.2d 1277, 1283 n. 11 (9th Cir. 1984)). However, "the evidence should be specific enough to indicate that the alien's predicament is appreciably different from the dangers faced by the alien's predicament is appreciably different from the dangers faced by the alien's fellow citizens." Vides-Vides v. INS, 783 F.2d 1463, 1469 (9th Cir. 1986). "The evidentiary facts necessary to support a finding of persecution on one of the statutory grounds may be established by the production of specific documentary evidence or by the credible and persuasive testimony of the applicant." Id.

BIA and the IJ found that Dominguez would not face a "reasonable possibility" of persecution were he to be returned to El Salvador. They reasoned that it was unlikely he would be harmed since his father has not been, since he has always been released by the guerrillas unharmed, and since he no longer works on the farm.

This finding is supported by substantial evidence. Once the family moved away from the farm, the bombings and most of the threats ceased. Dominguez's father has been living safely in Santa Tecla, and Dominguez has not presented any convincing reasons why the guerrillas would have more interest in harming him. His claim that they seek revenge for his having given some of their names to the government does not seem plausible in light of the fact that although he was three times accosted by guerrillas after he had moved to Santa Tecla, he was merely questioned and never harmed. While they do appear on one occasion to have used rather forceful language, the "threat," if it can even be called that, was ambiguous and unspecific. Thus, we must find BIA's conclusions that the guerrillas did not indicate any "motive of revenge or hatred" of Dominguez and that they had no special interest in him to be supported by substantial evidence.

So long as Dominguez stays away from the farm and remains disassociated from the labor dispute, it does not appear that he faces a reasonable possibility of harm. Thus, the decision of the BIA finding ineligibility for political asylum is supported by substantial evidence. Since the standard for withholding of deportation is stricter than that for eligibility for asylum, Bolanos-Hernandez, 767 F.2d at 1282, Dominguez has also failed to qualify for withholding of deportation.

AFFIRMED.

 *

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3

 **

The Honorable Spencer M. Williams, Senior United States District Judge for the Northern District of California, sitting by designation

 1

The facts are as presented by Dominguez in his application for asylum and in his testimony at trial