Jorge Perez-Alvarez v. Immigration and Naturalization Service
Docket: 88-1105
Court: Court of Appeals for the First Circuit; September 19, 1988; Federal Appellate Court
Jorge Perez-Alvarez applied for asylum under the Refugee Act of 1980, but his application was denied by the Immigration Judge, who instead granted him voluntary departure. The Board of Immigration Appeals affirmed the denial of asylum but reversed the grant of voluntary departure. Perez appealed both decisions. Born in El Salvador, Perez was involved in a farmers' union and later fled to the U.S. in 1984. During his hearing, his counsel attempted to present evidence regarding his union activities, which was objected to by the Immigration Service on the grounds that the information was outdated, a ruling upheld by the Immigration Judge. The Judge concluded that Perez had not proven a likelihood of individual persecution, thus denying his asylum claim without properly applying the standard of proof established in INS v. Cardoza-Fonseca. The Board acknowledged the Immigration Judge's failure to apply the correct standards but did not connect this to the exclusion of evidence about Perez's union involvement. A dissenting opinion from Board member Michael J. Heilman criticized the exclusion of evidence, emphasizing that it hindered a proper evaluation of the persecution claim and questioned the Immigration Judge's assumption regarding the relevance of the decade-old union membership. The dissent expressed concern about the implications of excluding evidence based on assumptions rather than factual support. The court ultimately reversed the Board's decision and remanded the case for further proceedings. Avoiding assumptions about how foreign societies operate is crucial in assessing claims of persecution, as prior cases have shown that such assumptions can be incorrect until a full hearing is conducted. The case originally misidentified the petitioner as Jose Perez-Alvarez instead of Jorge Perez-Alvarez, a mistake recognized and corrected by the Immigration Judge but perpetuated by the Board. The court has directed the Clerk and the Board to amend the records accordingly. The question of whether to mask the identity of petitioners fearing persecution is raised, with the court suggesting it be considered by the Board. The court notes that confusion regarding the applicable standard of proof can negatively impact rulings on evidence. In this case, the Immigration Judge applied an incorrect standard, requiring a petitioner to show a "more likely than not" chance of persecution, contrary to established precedent. To establish a "well-founded fear of persecution," an alien does not need to demonstrate a greater than 50% likelihood of persecution; even a 10% chance of severe consequences suffices. While objective factors are pertinent, the statute emphasizes the subjective fears of the individual. Due to the Immigration Judge's confusion about the standard of proof, an erroneous exclusion of testimony occurred, warranting a reversal of the decision. The court chose not to address the Board's decision regarding voluntary departure but emphasized that the Board must exercise its discretionary authority judiciously and consider all relevant factors. The case is reversed and remanded for further proceedings.