Rolando Hernandez v. INS , 258 F.3d 806 ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 00-3721
___________
Rolando Hernandez, *
*
Petitioner, *
*
v. *
*
1
Janet Reno, Attorney General, *
U.S. Department of Justice; Doris * On Petition for Review
2
Meissner, Commissioner, U.S. * From the Decision of the
Immigration and Naturalization * Board of Immigration Appeals.
Service; Curtis Aljets, District *
Director, St. Paul, Minnesota *
District, U.S. Immigration and *
Naturalization Service, *
*
Respondents. *
___________
Submitted: June 14, 2001
Filed: August 15, 2001
___________
Before MURPHY, HEANEY, and BEAM, Circuit Judges.
1
On the court's own motion, United States Attorney General John Ashcroft is
substituted for his predecessor Janet Reno. See Fed. R. App. P. 43(c)(2).
2
On the court's own motion, Commissioner of the United States Immigration and
Naturalization Service James W. Ziglar is substituted for his predecessor Doris
Meissner. See Fed. R. App. P. 43(c)(2).
___________
MURPHY, Circuit Judge.
Petitioner Rolando Hernandez entered the United States without inspection in
1992 after fleeing Guatemala to escape from the Organization for People in Arms
(ORPA), which had impressed him into its service. The Immigration and
Naturalization Service (INS) initiated deportation proceedings against him in 1993.
Hernandez conceded deportability, but requested asylum and withholding of
deportation. He was given an individual merits hearing before an immigration judge
in June 1994. His testimony at the hearing forms the factual record in this matter, and
the judge specifically found his testimony to be credible before granting his requested
relief. The Board of Immigration Appeals (Board) issued its decision in October 2000,
that Hernandez was statutorily ineligible for asylum. After carefully reviewing the
record, we remand to the Board for its further consideration.
I.
Hernandez was born in Quezaltenango, Guatemala on August 20, 1965. Insofar
as this case is concerned, his troubles began when two ORPA members approached
him on a bus in April 1992 and initiated a conversation. The two men did not identify
themselves as members of a guerrilla organization. At that time Hernandez had never
heard of ORPA and did not know that it was a guerrilla group which used violent
means in pursuit of its goals. During the conversation Hernandez told the two men
where he lived and worked.
The two men began visiting him at his workplace and at the restaurant where he
usually ate. They also began to pressure him to join their organization, but they
misrepresented the nature of ORPA. They said that the group was dedicated to
improving the lives of Guatemalans by undertaking non violent activities and protesting
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government injustices. Although Hernandez was generally sympathetic with the stated
goals, he was reluctant to join the organization. He eventually did so only after the two
men threatened to kill him if he did not. He believed that he would be expected to be
involved in organizing strikes, work stoppages, or demonstrations against the
government. He had no idea that he would be asked to participate in violent activities.
About a month after their first meeting, the two men came to a restaurant where
Hernandez was eating, forced him into a car, and drove him to a guerrilla camp in a
remote mountain location. Hernandez found approximately fifty ORPA soldiers at this
camp, as well as two other individuals who had also been forcibly recruited and
kidnapped. The three newcomers were then oriented to the group and given weapons
training. Hernandez objected and informed the leaders that he did not want to be
involved with weapons. They told him that the training was necessary and that ORPA
had to take extreme measures in order to obtain its goals.
The next day Hernandez was taken by the guerrillas to a small village outside of
Retalhuleu, where they engaged government forces in battle. Hernandez objected to
taking part, but the leaders said the action was necessary. After the battle, the
commander ordered Hernandez and others to dynamite a bridge and to stop cars and
loot them. No one was injured by the dynamiting, but some of the drivers were beaten.
Hernandez testified that he had not wanted to join in any of these acts, and only did so
because he feared that the guerrillas would otherwise harm or kill him.
Several days later after the commander had received reports that some villagers
in Playa Grande were giving information to the army, he ordered a group to go there
to retaliate. About fifty people went to Playa Grande, and Hernandez and several others
were ordered to remove villagers from their homes and to ransack their houses. They
herded approximately 100 villagers to the town center. The commander identified
about fifteen in this group as government informants, and ordered Hernandez and ten
other guerrillas to open fire on them. All of the suspected informants were killed.
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Hernandez did not want to be part of this firing squad, but he knew he was being
tested and understood he would be killed if he did not follow the commander's order.
He would rather "have turned the fire on [his] own companions," but he knew that
"with one machine gun [he] wasn't going to be able" to take care of all of the guerrillas.
The commander stood right behind Hernandez during the shooting and examined the
magazine of his rifle immediately afterwards to check whether he had followed orders.
Hernandez testified that he attempted to aim away from the villagers and tried not to
hit anyone, and that he shot approximately 10 to 12 rounds of a 30 round magazine to
the left of where he thought the villagers were standing. He indicated that he did not
believe that he had hit anyone.
After the shootings in Playa Grande, Hernandez went to the ORPA commander
and asked to be set free. He told the commander that he disagreed with the group's
violent tactics and that he thought ORPA was doing more harm in Guatemala than
good. The commander replied that Hernandez could not leave the group and that he
would send him "to hell" if he ever asked to leave again. The commander then ordered
two guerrillas to keep guard over him to prevent any escape attempt. Hernandez also
went to the two men who had first sought him out and told them that he wanted to leave
the group, but they warned him that he would be killed if he continued to talk that way.
He considered trying to turn himself over to the government forces, but he feared they
would shoot him as a guerrilla.
Several days later the guerrillas engaged in battle with government forces near
the Mexican border. Hernandez recognized that this could be the best opportunity for
escape, and he ran towards the border. His two guards ordered him to stop, but he shot
at them and continued to run. The guerrillas turned their fire on Hernandez and hit him
in the lower leg, but he ran on and eventually escaped into Mexico. He had been with
ORPA approximately 20 days before he was able to escape.
-4-
Hernandez lived and worked in Mexico City for about two months before he
learned that two men had been questioning his former employer in Guatemala,
Guillermo Cruz, about "Rolando." Hernandez was aware that ORPA had found a
previous escapee who had fled to Costa Rica; he had been taken back to Guatemala
and killed. Hernandez feared that he would meet a similar fate if ORPA guerrillas
succeeded in finding him. He borrowed money from Cruz and attempted to flee into
the United States. After several unsuccessful attempts, Hernandez entered the United
States on September 5, 1992. He maintained contact with his mother and with Cruz.
His mother warned him to stay in hiding because three armed men had been looking for
him, and Cruz sent word that "they" were looking for him.
II.
In May 1993, the INS issued an order to show cause against Hernandez, alleging
that he was deportable for having entered the United States without inspection under
§ 241(a)(1)(B) of the Immigration and Naturalization Act (Act).3 Hernandez conceded
deportability, but applied for asylum and withholding of deportation under §§ 208 and
243(h)(1) of the Act. He contended that he was unable to return to Guatemala where
he faced persecution by ORPA members because of his political opinion that their
actions were harmful to Guatemala, an opinion that he had publicly expressed to his
guerrilla commander and other group members.
A hearing was held before an immigration judge in June 1994. Hernandez
testified through a translator. The immigration judge found that Hernandez credibly
established that he had been forcibly recruited into ORPA by coercion and
3
The Illegal Immigration Reform and Immigrant Responsibility Act of 1996
("IIRIRA"), Pub. L. No. 104-208, 110 Stat. 3009, repealed and renumbered portions
of the Immigration and Naturalization Act. Because Hernandez's case was brought
before the effective date of the IIRIRA, our references are to pre-amendment law.
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misrepresentations, that he had not supported the guerrillas, and that as soon as he
became aware of their goals he informed the leaders of his disagreement with them and
attempted to leave the group. The judge concluded that Hernandez was entitled to
asylum because his credible testimony established a well founded fear of persecution
by guerrilla leaders who knew that he had deserted their forces after announcing his
opposition to them and also that Hernandez had established that it would be more likely
than not that he would be persecuted if he returned to Guatemala. The judge then
granted Hernandez's application for asylum and withholding of deportation.
The INS appealed, and the Board of Immigration Appeals (Board) sustained that
appeal in October 2000. The Board held that Hernandez was statutorily ineligible for
relief because he had "assisted or otherwise participated in the persecution of [a] person
on account of . . . political opinion" within the meaning of §§ 101(a)(42) and
243(h)(2)(A) of the Act. It focused its attention on the action in Playa Grande which
was the basis for its conclusion that Hernandez had assisted in persecution. Although
the Board did not overturn the findings of the immigration judge who had found
Hernandez's testimony entirely credible, it indicated that the record was "inconclusive"
as to whether he had aimed at or shot any villagers.4 It concluded that it need not
4
The Board noted that under direct examination Hernandez testified:
Q: Did you shoot?
A: Yes.
Q: Did you kill anybody?
A: No. I tried to aim off to the side.
Q: Did you try to stop them from killing them?
A: No.
Q: Why not?
A: For fear.
Under cross-examination, Hernandez testified:
Q: [When the command was given to shoot] [d]id you aim at anybody?
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decide whether Hernandez had aimed or shot at anyone, because his testimony
indicated that he had assisted in persecution on account of political opinion since the
villagers had been targeted for suspected aid to the Guatemalan government. The
Board found that Hernandez did not meet his burden of proving otherwise, and cited
Matter of Rodriquez-Majano, 19 I&N Dec. 811 (BIA 1988), and Fedorenko v. United
States, 449 U.S. 490 (1981), for the proposition that "the participation or assistance of
an alien in persecution need not be of his own volition to bar him from the relief of
withholding of deportation and asylum." The Board ordered Hernandez deported on
the basis that he was statutorily ineligible for asylum or withholding of deportation, and
it did not therefore reach the issue of whether he was otherwise entitled to asylum.5
A: Yes.
The following colloquy occurred on redirect:
Q: When you . . . when you . . . again at Playa Grande when you shot
your rifle did you aim particularly at anybody?
[Objection, overruled by Immigration Judge.]
A: Yes. Yes. Not everyone just chose one person or certain persons to
shoot at.
Q: Do you know if you shot anybody?
A: It's possible, but I did as much as possible to not hit anyone.
5
To be eligible for asylum, Hernandez would have to show that he is unable to
return to Guatemala because of past persecution or a "well-founded fear" of future
persecution by the government, or a group that the government cannot control, on
account of his race, religion, nationality, membership in a particular social group, or
political opinion. See 8 U.S.C. § 1101(a)(42)(A). Facts in his favor include evidence
that he had informed ORPA members of his political opinion about opposing their
violent tactics, that his mother and his former employer had warned him that men had
been questioning his whereabouts after his escape, and that he knew ORPA had found
a previous escapee who was taken back to Guatemala and killed. There is incidentally
nothing in the record apart from his immigration status to suggest that Hernandez has
been anything other than a law abiding resident of this country since his entry in
September 1992.
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Hernandez argues on his petition for review that the Board erred in holding that
he assisted in persecution and in ruling him ineligible for asylum and withholding of
deportation. Hernandez contends that the legal standard applied by the Board in
determining whether he assisted in the persecution of others is inconsistent with
Fedorenko v. United States, 449 U.S. 490 (1981), and the Board's decision must
therefore be reversed. Hernandez argues that Fedorenko requires an evaluation of the
particular conduct of the petitioner. He maintains that the evidence, when evaluated
in accordance with Fedorenko, shows that he never assisted or participated in the
persecution of others. The INS maintains that the Board correctly analyzed the case
and that Hernandez did not meet his burden of proving that he did not assist or
otherwise participate in the persecution of others.
III.
The Board's conclusion that Hernandez is ineligible for asylum or withholding
relief is a legal determination which we review de novo. See Escudero-Corona v. INS,
244 F.3d 608, 613 (8th Cir. 2001). Factual findings underlying its conclusion are
reviewed under a substantial evidence standard of review. Id.An individual like Hernandez who is otherwise deportable may remain in the
United States if he can show that he is eligible either for asylum or withholding of
deportation under §§ 208 or 243(h) of the Immigration and Naturalization Act. Neither
type of statutory relief is available to an individual who participates in certain types of
persecution. The definition of a refugee eligible for asylum specifically excludes "any
person who ordered, incited, assisted, or otherwise participated in the persecution of
any person on account of race, religion, nationality, membership in a particular social
group, or political opinion." INA § 101(a)(42). Identical language prohibits
withholding of deportation for such an individual. See INA § 243(h)(2)(A). If there
is any evidence that an applicant for either kind of relief has assisted or participated in
persecution, that individual has the burden of demonstrating by a preponderance of the
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evidence that he has not been involved in such conduct. See 8 C.F.R. § 208.13(asylum); 8 C.F.R. § 208.16 (withholding of deportation).
Fedorenko v. United States, 449 U.S. 490 (1981), is the leading case to have
examined the question of whether an individual assisted or participated in persecution.
Fedorenko was a Ukranian who became a guard at a Nazi extermination camp in
Treblinka, Poland during World War II. After the war he entered the United States in
1949 with a visa issued under the Displaced Persons Act (DPA) and later obtained
citizenship. In 1979 the government brought an action to revoke his citizenship on the
grounds that he had obtained his naturalization by willfully misrepresenting material
facts on his visa and citizenship applications. He had not disclosed his work at
Treblinka, and the government contended that that omission was material because it
would have made him ineligible for a visa under §§ 2(a) and 2(b) of the DPA. Those
provisions specifically excluded individuals who had "assisted the enemy in persecuting
civil[ians]" or who had "voluntarily assisted the enemy forces . . . in their operations."
Id. at 495.
Fedorenko admitted at trial that he had served as an armed guard at Treblinka
during 1942 and 1943 and that he had been aware that thousands of Jews were being
murdered there. He testified that he had been issued a uniform and two guns, that he
had been paid for his service, and that he had received a merit stripe for good service.
He had also been permitted to leave the camp regularly and had not attempted to
escape. He admitted that he had shot at escaping inmates during a 1943 uprising, but
contended that he had been forced to serve as a guard, had not shared the persecutory
motives of the Nazis, and had shot at escapees under orders. He acknowledged,
however, that he and other Ukranian guards had significantly outnumbered the
Germans at the camp. The district court declined to revoke Fedorenko's citizenship
because it found that his service at Treblinka was not voluntary; it reasoned that
involuntary acts should not exclude someone from immigration. See United Staets v.
Fedorenko, 455 F.Supp. 893, 913 (S.D.Fla. 1978). The law would otherwise keep out
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relatively innocent persons such as camp inmates forced to perform jobs which assisted
the extermination process in some way. Id.The Fifth Circuit reversed, see United States v. Fedorenko, 597 F.2d 946 (1979),
and the Supreme Court upheld its position. The Court criticized the district court's
attempt to read a voluntariness requirement into § 2(a) because courts "are not at liberty
to imply a condition which is opposed to the explicit terms of the statute." Fedorenko,
449 U.S. at 512-13. Although it ruled that there was no condition of voluntariness in
the provision, the Court indicated that all aspects relevant to an individual's conduct
must be examined in order to determine whether he assisted in persecution. In a much
cited footnote, the Supreme Court stated that "[t]he solution to the problem perceived
by the District Court [] lies, not in 'interpreting' the Act to include a voluntariness
requirement that the statute itself does not impose, but in focusing on whether particular
conduct can be considered assisting in persecution of civilians." Id. at 512-13, n. 34(emphasis supplied). The Court provided contrasting examples of conduct which
would or would not amount to assisting persecution under the Act:
. . . an individual who did no more than cut the hair of female
inmates before they were executed cannot be found to have assisted
in the persecution of civilians. On the other hand, there can be no
question that a guard who was issued a uniform and armed with a
rifle and a pistol, who was paid a stipend and was regularly allowed
to leave the concentration camp to visit a nearby village, and who
admitted to shooting at escaping inmates on orders from the commandant
of the camp, fits within the statutory language about persons who
assisted in the persecution of civilians.
Id. The court acknowledged that "[o]ther cases may present more difficult line-drawing
problems, but we need decide only this case." Id.Under Fedorenko, a court faced with difficult "line-drawing problems" should
engage in a particularized evaluation in order to determine whether an individual's
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behavior was culpable to such a degree that he could be fairly deemed to have assisted
or participated in persecution. Id. See also Riad v. INS, 1998 WL 559348 (9th Cir.
1998). Although Fedorenko dealt with a different statutory provision than that at issue
here, courts interpreting the "assistance to persecution" language in §§ 101(a)(42) and
243(h)(2)(A) have followed the type of analysis outlined by the Supreme Court in
footnote 34. See Riad v. INS, No. 96-70898, 1998 WL 559348, at *3 (9th Cir. Sept.
1, 1998); Ofosu v. McElroy, 933 F.Supp. 237, 243 (S.D.N.Y. 1995). See also Ofosu
v. McElroy, 98 F.3d 694, 701 (2d Cir. 1996) (noting dearth of cases interpreting §§
101(a)(42) or 243(h)(2)(A) but citing Fedorenko as authority). Courts interpreting
these provisions "have evaluated the individual's personal culpability in the atrocities
committed to determine if the individual has assisted or participated in persecution."
Riad, 1998 WL 559348, at *2 (9th Cir. 1998). As the Ninth Circuit has said in
following Fedorenko, an individual's responsibility for such behavior "must be assessed
along a continuum of conduct." Id.After thoroughly going over the record, we conclude that the Board did not apply
the correct legal standard in deciding whether Hernandez had assisted or participated
in persecution. Although the Board cited Fedorenko in passing, its opinion does not
reflect the type of analysis required. The Board should have analyzed all the pertinent
evidence related to Hernandez's conduct to determine whether, for purposes of §§
101(a)(42) and 243(h)(2)(A), he should be held culpable for assisting persecution at
Playa Grande. See Fedorenko, 449 U.S. at 512-13, n. 34; Riad, 1998 WL 559348, at
*2. The fact that Hernandez had been involved in the shooting in Playa Grande was
held by the Board to be "adequate to indicate" that he had assisted in persecution.
Without mentioning or analyzing other significant evidence that was relevant to
Hernandez's culpability, it concluded that he had not met his burden of proving that he
had not participated in persecution and that he was therefore ineligible for asylum and
withholding of deportation.
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As the Board noted, the burden of proof shifts to an asylum applicant once
evidence is presented to show a mandatory ground for denial. This does not mean,
however, that a petitioner will necessarily be held responsible for any involvement with
a persecutory group. Rather, a court must evaluate the entire record in order to
determine whether the individual should be held personally culpable for his conduct for
purposes of §§ 101(a)(42) and 243(h)(2)(A). See Fedorenko, 449 U.S. at 512-13, n.
34. In this case, the Board omitted most of the facts in the record from its legal
analysis. It did not consider Hernandez's uncontroverted testimony that his involvement
with ORPA was at all times involuntary and compelled by threats of death and that he
shared no persecutory motives with the guerrillas. Nor did it discuss Hernandez's
testimony that he participated in the Playa Grande action in fear for his life, that the
commander stood behind him during the shooting and checked the magazine of his rifle
afterwards, that immediately after the incident he expressed his disagreement with
ORPA's actions to his commander, and that at the first available opportunity he risked
his life to escape the guerrillas. It focused only on his being part of the group that shot
at the villagers.
The facts here are very different from those in Fedorenko. Although Fedorenko
was free to leave Treblinka from time to time, he never tried to escape. Hernandez was
never given any leave, and he escaped at his first opportunity. Fedorenko served at
Treblinka for over a year, but Hernandez spent only 20 days as a prisoner of ORPA.
Unlike Fedorenko, Hernandez never received any payment or reward from ORPA.
Heranandez risked his life by articulating his disagreement with ORPA's violent tactics,
by disobeying his commander's orders to shoot directly at the villagers, and by fleeing
from his captors into Mexico. While Fedorenko and his fellow Ukranians far
outnumbered the Germans at Treblinka, Hernandez and two other forced recruits were
isolated within a group of fifty guerrillas. And significantly, Hernandez himself
revealed his involvement with ORPA to United States officials whereas Fedorenko
omitted important information on his entry documents and covered up his connection
with Treblinka.
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The case against Hernandez is built upon his own description of the action at
Playa Grande and his involvement in it. There is nothing in the record to suggest that
the government had any other source of information than his own voluntary testimony.
It was Hernandez himself who revealed the facts, both the good and the bad. The
immigration judge found his entire testimony completely credible – including his
statements that he participated in brutal and violent acts only because of real fear that
he would otherwise be killed. The Board did not attempt to discredit the hearing
judge's credibility findings, but it chose to look at only part of the story. There is no
evidence that Hernandez's participation with ORPA was not at all times compelled by
fear of death, to indicate that Hernandez shared any persecutory motives, or to show
that he did not escape as soon as possible. The Board should have examined all
aspects of Hernandez's testimony when determining whether his conduct constituted
assistance in persecution.
If the record is analyzed in accordance with the Fedorenko legal standard,
Hernandez may be seen to have met his burden of proving that he did not assist or
participate in the persecution of others. Hernandez presented credible and
uncontroverted testimony that he was unaware that ORPA was a violent guerrilla
organization and that he was forcibly recruited and compelled to join it under threats
of death. He testified that he only participated in the action at Playa Grande because
he knew he would be killed if he did not. Despite the presence of the commander and
other guerrilla soldiers, Hernandez risked his life by disobeying orders and attempting
to shoot away from the civilians. The evidence also indicated that Hernandez
repeatedly articulated his disagreement with ORPA's violent tactics to the commander
and other guerrillas and asked to be set free. The commander responded that
Hernandez could not leave, that he would be killed if he asked to leave again, and
ordered two armed guerrillas to guard him and prevent him from escaping. Despite
these explicit threats, Hernandez escaped at his first available opportunity by placing
himself in great danger. He was shot while fleeing and had to leave his family and
homeland behind. He had only been with ORPA for approximately twenty days after
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his abduction before he fled. It was his misfortune that the group was actively involved
in violence in that short time and that he was forced to participate in it.
Since the Board erred as a matter of law by failing fully to analyze the record in
accordance with Fedorenko, we remand for its full consideration of the issue of
eligibility for the type of relief requested by Hernandez.
IV.
In conclusion, we vacate the order of the Board of Immigration Appeals and
remand to the Board for it to conduct a full Fedorenko analysis to determine whether
Hernandez can be held to have "assisted or participated in persecution" within the
meaning of §§ 101(a)(42) and 243(h)(2)(A) and for any other proceedings that the
Board may find necessary.
BEAM, Circuit Judge, dissenting.
It is my view that the Board of Immigration Appeals (BIA) properly applied the
law in this case and fully analyzed the record in accordance with Fedorenko v. United
States, 449 U.S. 490 (1981). Thus, I would affirm the decision of the BIA.
Accordingly, I dissent.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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