Efrain Antonio Rebollo-Jovel v. Immigration and Naturalization Service , 794 F.2d 441 ( 1986 )

CANBY, Circuit Judge,

concurring in part and dissenting in part:

I agree with that portion of Judge Wallace’s opinion that upholds the Board’s determination that Rebollo-Jovel is not entitled to withholding of deportation pursuant to 8 U.S.C. § 1253(h). I dissent, however, from the denial of review of Rebollo-Jovel’s claim for asylum under 8 U.S.C. § 1158(a). I would grant the petition for review of that issue, and would reverse the Board’s decision and remand the case to the Board for reconsideration.

This court has made it abundantly clear that the “well-founded fear of persecution” standard for asylum claims is “more generous” than the “clear probability” standard for withholding of deportation because of threat to life or freedom. E.g., Cardoza-Fonseca v. INS, 767 F.2d 1448, 1451 (9th Cir.1985), cert. granted, — U.S. —, 106 S.Ct. 1181, 89 L.Ed.2d 298 (1986); Bolanos-Hernandez v. INS, 767 F.2d 1277, 1281-83 (9th Cir.1984). The difference between the standards is an important one.

The term “clear probability” requires a showing that there is a greater-than-fifty-percent chance of persecution. In contrast, the term “well-founded fear” requires that (1) the alien have a subjective fear, and (2) that this fear have enough of a basis that it can be considered well-founded.

Cardoza-Fonseca, 767 F.2d at 1452-53. Because of the difference in standards, some aliens who cannot qualify for mandatory withholding of deportation because of their inability to show a clear probability that their lives or freedom would be threatened by return to their countries, may nevertheless be able to qualify for discretionary grants of asylum by showing a well-founded fear of persecution.

As the majority opinion recognizes, the Board has never accepted the view that the standards of “clear probability” and “well-founded fear” are different. On the contrary, it has consistently equated the two standards, see Cardoza-Fonseca, 767 F.2d at 1451, and has most recently and thoroughly reiterated its position in Matter of Acosta, Interim Dec. 2986 (BIA March 1, 1985). There the Board concluded, after lengthy discussion, that “the standards for asylum and withholding of deportation are not meaningfully different and, in practical application, converge.” Acosta, slip op. at 25.

Because of this consistent position of the Board, it has been difficult for this court to evaluate the catchall phrase the Board often inserts in its asylum decisions and has inserted in this one:

We also find that [Rebollo-Jovel] has failed adequately to substantiate his asylum claim regardless of whether such claim is assessed in terms of demonstrating a “clear probability,” a “realistic likelihood,” a “reasonable possibility” or a “good reason to fear” persecution.

Normally such a recitation would be sufficient to assure us that the Board has assessed the claim in question by several different standards of greater and less severity, and has found the claim wanting under all. No such assurance is possible, however, in light of the consistent position of the Board that, in practical application, standards as different as “clear probability” and “well-founded fear” are equivalent. If “well-founded fear” does not mean to the Board what it means to this court, we cannot rest on the Board’s use of the term, or what the Board considers its equivalents. The crucial point for purposes of review is that the Board apply the correct standard, not that it utter the correct words.

This problem is not a new one for us. In reviewing Board decisions containing such disclaimers, we have adopted a case-by-case approach, pointing out that “[t]he utterance of certain magic words by the BIA is not the focus of our inquiry. Rather our concern is with the analysis actually applied by the BIA.” Vides-Vides v. INS, 783 F.2d 1463, 1468 (9th Cir.1986).

The majority opinion here purports to accept the proposition that “[njothing in our case law suggests that the use of certain words should lead either to automatic affirmance, or to automatic reversal.” Supra, p. 444. It then largely undermines that position by giving effect to the Board’s catchall disclaimer, and suggesting that “[w]e ought not to impute uncommon meanings to the Board’s words, unless the Board has given us a clear indication that it is using words in either a technical or somehow incorrect sense.”

In my view, the Board has given us, many times over many years, a clear indication that it uses “well-founded fear” to mean something other than the standard of asylum established for this circuit by Bola-nos-Hemandez and Cardoza-Fonseca. The majority gives presumptive effect to the Board’s disclaimer. Because the Board has consistently merged the standards of “well-founded fear” of persecution and “clear probability” of threat to life or freedom, I would give no presumptive effect, one way or the other, to the Board’s catchall language.

The presumption aside, I look to the record to determine the “analysis actually applied by the BIA.” Vides-Vides, 783 F.2d at 1468. I can find nothing there to indicate that the Board has evaluated Re-bollo-Jovel’s claim by a standard more generous than that required for withholding of deportation. The claim is at least a color-able one on its facts. Accordingly, I would reverse the Board’s decision and would remand the case to the Board for reconsideration of Rebollo-Jovel’s asylum claim explicitly by the standards adopted for this circuit in Bolanos-Hemandez and Cardo-za-Fonseca.