Manuel Diaz Arteaga v. Immigration and Naturalization Service
Docket: 86-7124
Court: Court of Appeals for the Ninth Circuit; April 6, 1988; Federal Appellate Court
Manuel Diaz Arteaga, a 24-year-old native of El Salvador, sought political asylum in the United States after entering without inspection in February 1984, acknowledging his deportability under 8 U.S.C. Sec. 1251(a)(2). His claim for asylum was primarily based on threats made by guerrillas in August 1983, who, after he refused to join their movement, stated, "Even if you don't come, we'll get you." Following his testimony, the immigration judge denied his requests for asylum and withholding of deportation, reasoning that the guerrillas did not attempt to forcibly recruit him but sought to persuade him.
The Board of Immigration Appeals (BIA) upheld the immigration judge's decision. The Ninth Circuit Court of Appeals reviewed the BIA's decision under the substantial evidence standard for factual findings and de novo for legal questions, particularly the application of withholding of deportation under Sec. 243(h) and political asylum under Sec. 208(a). Arteaga argued that the BIA did not adequately differentiate between the legal standards for these forms of relief. For mandatory withholding of deportation, Arteaga must show that his life or freedom would be threatened on specific grounds, and the standard applied is a "clear probability of persecution." For asylum, Arteaga must demonstrate a "well-founded fear of persecution," which is a more lenient standard than that for withholding.
In Cardoza-Fonseca, the Supreme Court determined that an alien does not need to demonstrate a greater than 50% likelihood of persecution to establish a "well-founded fear of persecution." The Court clarified that even a one-in-ten chance of persecution can suffice for such a fear. The distinction between "clear probability" and "well-founded fear" must be upheld, as indicated in Rebollo-Jovel v. INS, which emphasizes that the Board of Immigration Appeals (BIA) must apply separate standards for asylum and withholding relief.
The BIA has often issued generalized statements about meeting asylum standards without clearly differentiating between these standards, which can obscure whether it has applied the appropriate criteria. In Matter of Acosta, the BIA suggested that the standards for "well-founded fear" and "clear probability" are effectively the same, complicating the analysis. However, in Vides-Vides, the court indicated that a BIA decision could still be valid if it implicitly recognized the differing standards, although it left open whether a more explicit statement was necessary following Acosta.
Corado Rodriguez v. INS resolved that in cases post-Acosta, the BIA must explicitly confirm that it is applying the more lenient asylum standard. The BIA's use of catchall language that does not clarify adherence to the well-founded fear standard was found inadequate by the court, especially when the BIA referenced Acosta while using terminology associated with the more stringent clear probability standard.
The analysis references the Ninth Circuit's decision in Sanchez-Trujillo v. INS, which upheld the BIA's application of the "well-founded fear" standard despite some ambiguous language. The court clarified that the BIA's use of terms like "would be" or "will be" did not indicate a misapplication of the law, as the overall context demonstrated adherence to established precedents, particularly Cardoza-Fonseca. In the current case, the BIA similarly cited Ninth Circuit precedent and Cardoza-Fonseca but ultimately determined that the petitioner failed to establish a clear probability of persecution or a well-founded fear, suggesting the application of the stricter standard. The BIA's language indicated a lack of evidence for past persecution or likelihood of future persecution, which further aligned with a stricter interpretation.
The current case differs from Corado Rodriguez primarily in the absence of specific boilerplate language and the inclusion of citations to Cardoza-Fonseca. The court emphasized that decisions must be assessed based on the BIA's actual application of law rather than the wording used. Despite citing relevant authority, the BIA's decision did not convincingly apply the more lenient "well-founded fear" standard, leading the court to conclude that the case should be remanded for a clearer application of that standard.
The Board of Immigration Appeals (BIA) incorrectly determined that Arteaga was ineligible for asylum based on a misapplication of the "well-founded fear" standard. Arteaga's case involved a direct threat from guerrillas in El Salvador who approached him in August 1983, asking him to join their cause. He left the country in January 1984 due to fears of being forcibly conscripted, as he had been explicitly warned by the guerrillas that they would "get" him if he did not comply. This threat constituted a specific danger of persecution, as defined under section 208(a) of the asylum law, which includes harm inflicted due to political opinion or other enumerated grounds.
Arteaga’s fear was substantiated by his testimony that he opposed the guerrillas' cause, reflecting a neutral political stance, which is considered a political opinion under the law. The BIA's assertion that Arteaga provided no objective evidence of being targeted for persecution overlooked the significance of the specific threat he faced. The fact that he was not physically seized by the guerrillas does not negate the legitimacy of his fear, as persecution does not require an arrest. Furthermore, the existence of general violence in El Salvador does not diminish the significance of a targeted threat against an individual. As a result, the BIA's conclusion was erroneous, failing to recognize the specific nature of the threat against Arteaga, which distinguishes his claim from those based solely on general violence in the country.
Arteaga's claim for asylum is mischaracterized by the government as stemming from a desire to avoid military service. His reluctance to join the Salvadoran army reflects his neutrality rather than the basis for his persecution claim. The court has previously rejected claims of persecution based solely on the threat of conscription, distinguishing these from cases involving conscientious objection to military service. The actions of non-governmental groups, such as forced recruitment by revolutionary armies, are considered persecution akin to kidnapping.
The Board of Immigration Appeals (BIA) failed to recognize the individualized nature of the threats against Arteaga, neglecting to assess whether the guerrillas had the intent or capability to carry out their threats. A specific threat against an identifiable individual can create a well-founded fear of persecution. The Supreme Court has suggested that even a low probability of harm can support a well-founded fear. As the BIA did not apply the correct standard for assessing fear of persecution, the case is remanded for proper evaluation using the more lenient standard applicable to asylum claims.
The BIA's error in distinguishing between standards for withholding deportation and political asylum is evident. While the BIA concluded that Arteaga did not demonstrate a likelihood of future persecution, this decision was based on substantial evidence. Since no credibility findings were made regarding Arteaga's testimony, it must be presumed credible in review. The excerpt concludes with references to specific instances of threats and violence Arteaga experienced, which underscore the need for reevaluation of his case under the correct legal standards.
Lack of consent distinguishes a voluntary traveler from a kidnapping victim. Arteaga's refusal to join the guerrillas stems from his political beliefs, and the potential for coercion by the guerrillas constitutes a threat of persecution based on political opinion. The guerrillas’ interest in conscripting Arteaga, rather than punishing him for neutrality, does not negate the political nature of the threat. The key inquiry is whether the guerrillas’ motive is political, which it clearly is, as forced recruitment against the government aligns with political motives.
The government references cases that dismiss claims based solely on membership in a social group of young males of military age, noting these claims lacked individualized threats. However, Arteaga's situation is distinct, as it involves specific political persecution. The Board of Immigration Appeals (BIA) diminished the perceived threat by highlighting a lack of subsequent contact from the guerrillas after an August 1983 threat until Arteaga's departure in January. However, this observation is weakened by the documented surge in forced recruitment by the guerrillas in early 1984, indicating that Arteaga’s fear was reasonable and that he may have left just in time to avoid conscription.
