Unpublished Disposition, 927 F.2d 608 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 927 F.2d 608 (9th Cir. 1990)


Nos. 89-70218, 89-70534.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 11, 1990.Decided March 4, 1991.

Appeal from the Board of Immigration Appeals, No. A-27-116-595.



Before SNEED, SCHROEDER and CANBY, Circuit Judges.


The petitioner, Carlos Arriola-Godinez, is a native of Guatemala who first entered the United States in 1982 as a temporary visitor. In December 1983, the INS began deportation proceedings against Arriola-Godinez and he conceded deportability. He applied for political asylum pursuant to 8 U.S.C. § 1158(a) and for withholding of deportation pursuant to 8 U.S.C. § 1253(h), as well as for suspension of deportation due to extreme hardship pursuant to 8 U.S.C. § 1254(a) (1). He now seeks review of the BIA's decision upholding the Immigration Judge's denial of all of his requests for relief from deportation.

The testimony upon which Arriola-Godinez relies is not controverted. Neither the Immigration Judge nor the Board questioned Arriola-Godinez's credibility, and thus we may assume his testimony is credible. Maldonado-Cruz v. U.S. Dept. of Immigration & Naturalization, 883 F.2d 788, 792 (9th Cir. 1989); Damaize-Job v. INS, 787 F.2d 1332, 1338 (9th Cir. 1986).

Arriola-Godinez became politically active in anti-government student groups in Guatemala in the late 1970's. He participated in student protests and strikes and distributed anti-government propaganda until approximately 1979, when he ceased open political participation in response to family concerns for his safety.

In January 1981, he was the victim of a brutal beating from men who he testified were members of Guatemalan "death squads." Arriola-Godinez presented documentary evidence demonstrating that the death squads are government-supported patrols who use violence to silence and punish citizens who oppose the Guatemalan government. Arriola-Godinez and several friends were detained and interrogated about guerrilla activities. The death squad kidnapped Arriola-Godinez and threatened to kill him when he could not provide them with information about guerillas, then beat him brutally and dumped him, unconscious, in an isolated area. When Arriola-Godinez came to, he could not find his identification card because his attackers had taken it. Arriola-Godinez testified that he was attacked because he was suspected of guerrilla activity. It was after this episode that Arriola-Godinez began planning to leave Guatemala permanently because he feared that his life was in danger.

The BIA concluded that the attack was a "random stop by unidentified men who were seeking information on the guerrillas." Pointing to the facts that the petitioner had been released after being severely beaten, and that the petitioner had not left Guatemala for approximately a year after the attack, the Board concluded that the petitioner had shown neither a well-founded fear nor a clear probability of persecution should he return to Guatemala. We disagree.

The record clearly shows that Arriola-Godinez has demonstrated a "well-founded fear of persecution on account of ... membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a) (42). A well-founded fear of persecution has two elements: subjective and objective. INS v. Cardoza-Fonseca, 480 U.S. 421, ----, 107 S. Ct. 1207, 1212-1213 (1987). The alien must demonstrate a subjective fear, that is, the alien must genuinely fear persecution, and that fear must have a reasonable, objective basis, supported by credible, direct and specific evidence in the record. Rodriguez-Rivera v. U.S. Dept. of Immigration & Naturalization, 848 F.2d 998, 1002 (9th Cir. 1988).

The "subjectively genuine" prong of this test is satisfied by an alien's credible testimony of a genuine fear of persecution. Cuadras v. INS, 910 F.2d 567, 571 (9th Cir. 1990). The petitioner's evidence in this record clearly satisfies that standard.

The BIA in evaluating the objective component of the test determined that the petitioner's fears were "based on the general level of violence in his native country" and that he had been a "random victim of that violence." Yet the record contains no evidence suggesting this was a random attack. Rather, the attack had a anti-guerrilla, political motivation. Moreover, in rejecting petitioner's claims, the Board made no reference to the evidence that Arriola-Godinez's attackers had kept his identification card. This evidence clearly supports the inference that the petitioner faces a greater threat of violence on his return than he faced at the time of the original attack. The Board's conclusions thus ignore the evidence that Arriola-Godinez was the victim of an act of violence with political overtones and that he has at the very least demonstrated a reasonable basis for his fear of future reprisals. This is particularly so in view of the Supreme Court's Cardoza-Fonseca decision, indicating that a well-founded fear may exist even where there is only a one in ten probability of persecution, so long as there is some reasonable possibility of persecution. Cardoza-Fonseca, 107 S. Ct. at 1213.

We turn to the issue of whether the petitioner has demonstrated not merely that he was entitled to consideration for political asylum pursuant to section 208, but also that he was entitled to withholding of deportation pursuant to section 243. See 8 U.S.C. § 1253(h) (1). To meet this burden, an alien must demonstrate "a clear probability of persecution"; this requires a showing that it is more likely than not that the alien would be subject to persecution on return to the home country. INS v. Stevic, 467 U.S. 407, 424 (1984).

We find that Arriola-Godinez has satisfied this standard as well. The BIA did not make any meaningful distinction between the "clear probability" and the "well-founded fear" standards. This is erroneous in light of the Supreme Court's Cardoza-Fonseca decision. Cardoza-Fonseca, 107 S. Ct. at 1212-13. Moreover, the justifications for rejecting the petitioner's claim are no more valid in the withholding context than in the asylum context. There is no substantial evidence to support the findings below that Arriola-Godinez was simply a random victim of violence or that his fears of persecution on return are speculative and conjectural. The evidence indisputably shows that the petitioner openly participated in anti-government political activity as a student; that he was the victim of a brutal kidnapping, beating and interrogation about guerrilla activity; and that he received a death threat similar to that received by his companion at the time of the beating who was subsequently shot and killed. The evidence also shows that Arriola-Godinez's attackers kept his identification card, increasing the likelihood that he would be singled out later for further persecution. Contrast Zacarias v. INS, No. 88-7507, slip op. at 15437 (9th Cir. Dec. 19, 1990). We therefore conclude that Arriola-Godinez has established a clear probability of persecution pursuant to 8 U.S.C. § 1253(h) (1).

The petitioner also seeks suspension of deportation for reasons of extreme hardship pursuant to 8 U.S.C. § 1254(a) (1). The petitioner seeks to reopen his claim, contending that the BIA did not properly consider the effects deportation would have upon himself and his family. The standard for granting such a reopening is high and the deference we must pay to the BIA is great. See Villanueva-Franco v. INS, 802 F.2d 327, 330 (9th Cir. 1986). We cannot say that the INS abused its discretion in denying the reopening in this case.

In view of our determination on the merits of petitioner's other claims, we need not consider the evidentiary issues raised.

The decision of the Board is REVERSED so that the petitioner's application for withholding of deportation may be granted and the application for asylum given due consideration.


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