DocketNumber： 94-1385A
Filed Date： 11/23/1994
Status： Precedential
Modified Date： 9/21/2015
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1385
JUAN FRANCISCO CORDERO-TREJO,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
____________________
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
____________________
Before
Boudin, Circuit Judge, _____________
Aldrich, Senior Circuit Judge, ____________________
Young,* District Judge. ______________
____________________
Maureen O'Sullivan with whom Harvey Kaplan, Jeremiah Friedman and __________________ _____________ _________________
Kaplan, O'Sullivan & Friedman were on brief for petitioner. _____________________________
Iris Gomez with whom Massachusetts Law Reform Institute was on __________ __________________________________
brief for Guatemaltecos Unidos En Accion of Rhode Island and
Massachusetts Immigrant and Refugee Advocacy Coalition, amici curiae.
Donald E. Keener, Office of Immigration Litigation, with whom ________________
Frank W. Hunger, Assistant Attorney General, and Philemina McNeill _______________ _________________
Jones, Office of Immigration Litigation, were on brief for respondent. _____
____________________
November 23, 1994
____________________
____________________
*Of the District of Massachusetts, sitting by designation.
ALDRICH, Senior Circuit Judge. Petitioner Juan _____________________
Francisco Cordero Trejo claims the Board of Immigration
Appeals ("Board") erred in dismissing his appeal from a
denial of asylum and withholding of deportation by the
immigration judge. Cordero's principal contention is that
the Board, in summarily adopting the IJ's conclusions,
ignored substantial portions of the evidence and accepted
inappropriate assumptions about how Guatemalan society
operates in concluding that his claim to have a well-founded
fear of persecution if returned to Guatemala contains fatal
"inconsistencies" and "implausibilities," and that he is
statutorily ineligible for either asylum or withholding. See ___
8 U.S.C. 1158(a) and 1253(h) (1988 & Supp. IV 1992).
After full review, we hold that the findings
underlying the Board's conclusion that Cordero is ineligible
for asylum are not supported by substantial evidence. The
Board's adoption of the IJ's findings and conclusions is
unreasonable when evaluated in light of the record as a
whole. Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951). ______________________ ____
The Board's initial basis for denying Cordero's bid for
asylum, i.e., the IJ's extensive negative credibility
findings, are without foundation in the record. The Board's
alternative holding that Cordero is statutorily ineligible
-2- 2
for asylum based upon, inter alia,1 its conclusion that no __________
one in Guatemala "is interested in him for any of the five
statutory grounds for asylum," In re Cordero, No. A70438773, __ __ _______
slip op. at 2 (BIA Mar. 22, 1994), can only be derived from
reliance on those unreasoned findings to discredit a
substantial portion of Cordero's evidence. Finally, the
Board did not evaluate the record "in light of general
conditions" in Guatemala and failed to consider evidence
concerning the pattern and practice of persecution of
similarly situated persons in Guatemala, as required by INS
regulations. 8 C.F.R. 208.13(a) and (b)(2)(i). See Osorio ___ ______
v. INS, 18 F.3d 1017, 1031 (2nd Cir. 1994). Accordingly, we ___
vacate the Board's eligibility determination and remand for
new proceedings in accordance with this opinion.
I. I. __
BACKGROUND2 BACKGROUND __________
Cordero is a native and citizen of Guatemala. He
was born in 1948, and completed high school and attended
medical school there. He was a 42 year-old married father of
four daughters, a small property owner, and owner and
____________________
1. The Board also based this alternative holding on
Cordero's failure to show past harm and the fact that his
family remains in Guatemala unharmed. These are statutorily
insufficient grounds for a denial of asylum, as discussed
infra. _____
2. Except where expressly indicated, the facts stated herein
were not contradicted.
-3- 3
operator of a successful construction business that employed
dozens of workers when he fled his country in November of
1990. He enjoyed a good standard of living, had savings, and
sent his daughters to private school. His wife and daughters
remain in Guatemala.
From 1976 to 1990 Cordero also worked as a
volunteer with "Laicos Comprometidos" (the committed laymen),
a religious organization dedicated to promoting the Catholic
faith, to providing medical care, food and clothing to needy
Guatemalans and to helping them "rise above their poverty."
He travelled on these missions approximately three times a
year to remote areas which had been hard hit by conflicts
between guerrillas and the Guatemalan military. Cordero
testified to having been stopped many times on these missions
by armed groups who accused him and his fellow missionaries
of inciting rebellion among the rural people.
In 1985 Cordero began to receive anonymous
threatening phone calls warning him to stop his activities
with Laicos. Then, in 1986, Cordero's younger brother was
attacked by armed men who stabbed him multiple times, stating
that this was a warning for Cordero. Several months later,
Cordero's older brother was attacked by armed men who threw
him off a cliff, stating that it was on account of his
brother's (Cordero's) failure to heed their warnings. Both
brothers survived, and remain in Guatemala. Cordero
-4- 4
testified that both before and after these attacks he and
members of his family were followed on the street and his
house was being watched. He reported the threatening phone
calls and surveillance, but was unable to obtain any
assistance from the National Police.
In November of 1987 Cordero was stopped by the
army3 while on a mission in a region plagued by guerilla
unrest. He was interrogated at length about his motives for
coming to the region, and when he explained he was with
"Laicos Comprometidos" he was accused of inciting rebellion
among the people. Several priests with whom Cordero was
intimate were killed in the course of their work in the
countryside. In 1989 Cordero suspended the activities of a
group of lay social workers that he and some friends had
founded to help troubled teens because of a telephone threat
they received.4
____________________
3. In his affidavit in support of his asylum application,
Cordero states that he was "arrested" by the army. Later, in
response to questioning before the immigration judge, Cordero
stated that he had never been arrested in Guatemala. The IJ
in his opinion and the INS in its brief ignore this incident,
whereas Cordero's brief maintains he was in fact arrested.
Because the record offers no reason to believe the incident
described here did not occur, we feel it is safe to assume
that Cordero probably understood the word "arrest" as he used
it in his affidavit to mean "stop," rather than its more
specialized criminal law meaning. We believe the discrepancy
can therefore be simply explained by inadequacies of
translation.
4. This incident too, although not contradicted anywhere in
the record, is not acknowledged by either the immigration
judge or the INS.
-5- 5
In June of 1990, after twelve years of service,
Cordero resigned from Laicos because he believed this might
put a stop to the campaign against him and his activities
that was terrorizing his family. However, in October of 1990
he was accosted on a city street by armed men who identified
themselves as belonging to the "death squads." They warned
him to abandon the country and that this would be his final
warning. They robbed him, but did not harm him physically.
Cordero claims that his family was terrorized and
that his own fears of persecution crystallized at this point.
He believes that if he returns to Guatemala he will be killed
by those who continuously threatened him. He was tempted to
leave Guatemala that night, but decided instead to try to
leave legally. He obtained a passport without difficulty,
but was turned down by the United States Consulate for a
visa. He then left Guatemala on November 21, 1990,
travelling by bus and on foot through Mexico. He entered the
United States near Brownsville, Texas on or about February 2,
1991 without inspection and was apprehended by the
Immigration Service shortly thereafter.
In deportation hearings held in March and June of
1991 Cordero conceded deportability and applied for asylum
and withholding of deportation, and in the alternative,
voluntary departure. Immigration and Nationality Act 208,
243(h) and 244(e), 8 U.S.C. 1158(a), 1253(h) and 1254(e)
-6- 6
(1988 and Supp. IV 1992). The IJ denied Cordero's
applications for asylum and withholding, but granted his
request for voluntary departure. Cordero appealed to the
Board. On March 22, 1994 the Board dismissed the appeal.
The Board relied on adverse credibility findings by the IJ in
reaching its decision that Cordero did not meet the statutory
definition of a "refugee." INA 101 et seq.,
101(a)(42)(A), 208(a), as amended, 8 U.S.C. 1101 et seq.,
1101(a)(42)(A), 1158(a). The Board reasoned that
"inconsistencies and implausibilities" in Cordero's
application rendered him unworthy of credibility, and that
even if credible, he had failed to establish statutory
eligibility for asylum because he had not shown that he was
ever harmed in Guatemala, or that his family remaining in
Guatemala had been harmed, or that "anyone in Guatemala is
interested in him for any of the five statutory grounds for
asylum." In re Cordero, slip. op. at 2. The Board noted __ __ _______
that suffering from civil disturbances and fleeing general
conditions of violence do not qualify an applicant for
asylum.
Cordero now appeals.
II. II. ___
EXHAUSTION OF ADMINISTRATIVE REMEDIES EXHAUSTION OF ADMINISTRATIVE REMEDIES _____________________________________
The INS charges that Cordero did not exhaust his
administrative remedies because until now he has claimed only
-7- 7
religious persecution, and failed to claim persecution on
imputed political opinion and/or social group grounds, as he
now seeks to do on appeal to this court. This contention is
without merit. See generally the United Nations High
Commissioner for Refugees, Handbook on Procedures and ______________________________
Criteria for Determining Refugee Status (Geneva, 1979), 66 _______________________________________
and 67. Not only did Cordero check the social group box on
his I-589 application for asylum, the immigration judge
framed the discussion in his order and opinion principally in
terms of the social group ground. Moreover, the language of
the Board's decision reveals that it considered Cordero's
application lacking with respect to "any one of the five
statutory grounds."5 In re Cordero, slip. op. at 2. __ __ _______
III. III. ____
STANDARD OF REVIEW STANDARD OF REVIEW __________________
We review findings of fact and credibility by the
Board "under a deferential 'substantial' evidence standard."
Alvarez-Flores v. INS, 909 F.2d 1, 3 (1st Cir. 1990); Novoa- ______________ ___ ______
Umania v. INS, 896 F.2d 1, 2 (1st Cir. 1990) ("we must uphold ______ ___
any finding of fact that is supported by 'substantial
evidence'"). Board determinations of statutory eligibility
____________________
5. Petitioner stated his fear to be "on account of his
membership in the social group of religious layworkers
(catechists) and on account of the political opinion which is
imputed to such people, and to the Petitioner in particular."
We regard Cordero's application for asylum as justiciable
under any one or several of the statutory grounds that the
record as a whole supports.
-8- 8
for relief from deportation, whether via asylum or
withholding, are conclusive if "supported by reasonable,
substantial, and probative evidence on the record considered
as a whole." 8 U.S.C. 1105a(a)(4) (1988). Gebremichael v. ____________
INS, 10 F.3d 28, 31 (1st Cir. 1993). ___
Under normal principles of administrative law
governing the role of courts of appeals when reviewing agency
decisions for substantial evidence,
[t]he Board's findings must . . . be set
aside when the record before a Court of
Appeals clearly precludes the Board's
decision from being justified by a fair
estimate of the worth of the testimony of
witnesses or its informed judgment on
matters within its special competence or
both.
Universal Camera, 340 U.S. at 490. This is to ensure that an ________________
agency "keeps within reasonable grounds." Id. See, ___ ___
Ghebllawi v. INS, 28 F.3d 83, 85 (9th Cir. 1994) (invoking _________ ___
Universal Camera standard to emphasize that Board of _________________
Immigration Appeals is not "a unique kind of administrative
agency entitled to extreme deference"). We will not
"supplant the agency's findings merely by identifying
alternative findings that could be supported by substantial
evidence." Arkansas v. Oklahoma, 112 S. Ct. at 1060. ________ ________
However, though we defer to reasonable inferences drawn by
the Board from conflicting evidence, see, Martinez v. INS, ___ ________ ___
970 F.2d 973, 975 (1st Cir. 1992), Consolo v. Federal _______ _______
Maritime Commission, 383 U.S. 607, 619-20 (1966), deference ___________________
-9- 9
is not due where findings and conclusions are based on
inferences or presumptions that are not reasonably grounded
in the record, viewed as a whole, Universal Camera, 340 U.S. ________________
at 491; Radio Officers' Union v. NLRB, 347 U.S. 17, 49 _______________________ ____
(1954), or are merely personal views of the immigration
judge. See Damaize-Job v. INS, 787 F.2d 1332, 1337 (9th Cir. ___ ___________ ___
1986). In any case, credibility findings resting on analysis
of testimony rather than on demeanor may "deserve less than
usual deference." Consolidation Coal v. NLRB, 669 F.2d 482, __________________ ____
488 (7th Cir. 1982).
IV. IV. ___
DISCUSSION DISCUSSION __________
Of the issues Cordero raises on appeal with respect
to the denial of his application for asylum, two merit
serious discussion: (1) the Board erred in relying on adverse
credibility and other factual findings which are not
supported by substantial evidence in the record; and (2) the
Board's decision is not supported by substantial evidence
because it ignores significant documentary evidence pertinent
both to the credibility of Cordero's claimed fear of
persecution on account of one or several statutory grounds,
and to the persecution of similarly situated persons in
Guatemala. We address each argument in turn.
A. Credibility and Other Factual Findings A. Credibility and Other Factual Findings ________________________________________________
-10- 10
The Board's denial of asylum adopted the IJ's
findings that Cordero's application and testimony (1) was
rife with inconsistencies and implausibilities, and (2)
failed to show either that he had suffered past harm in
Guatemala, or that his family had been harmed since his
departure, or "that anyone in Guatemala is interested in him
for any of the five statutory grounds for asylum." In re __ __
Cordero, slip. op. at 2. _______
As to the Board's second holding, it is well-
established that the first two reasons are not prerequisites
to qualify for asylum under the statute. INA
101(a)(42)(A), 8 U.S.C. 1101(a)(42)(A), 8 C.F.R.
208.13(b) and (b)(2)(i). INS v. Cardoza-Fonseca, 480 U.S. ___ _______________
421 (1987). Matter of Mogharrabi, 19 I&N Dec. 439 (BIA _____________________
1987). See also, Sotelo-Aquije v. Slattery, 17 F.3d 33, 37 ___ ____ _____________ ________
(2nd Cir. 1994) (fact that petitioner had not yet been
physically harmed "is not determinative of whether he has a
well-founded fear of persecution"); Turcios v. INS, 821 F.2d _______ ___
1396, 1402 (9th Cir. 1987) (petitioner's "freedom was
threatened when he was watched continuously and felt
compelled to restrict his activities"). And the third reason
is a conclusion that the Board could only have reached by
relying on the IJ's adverse credibility findings to discredit
the bulk of Cordero's evidence.
-11- 11
Because the Board adopted these credibility
findings as the initial basis for its denial of asylum, and
relied on them in formulating its alternative holding that
Cordero had in any event not established statutory
eligibility for asylum, the sufficiency of the evidence
supporting these findings remains an issue on appeal. We
evaluate each IJ finding for substantial evidence:
1. Because Cordero's affidavit does not identify the
"unknown armed men" who attacked him and two of his
brothers as members of "death squads," nor mentions
that the attackers identified themselves as such,
the judge found his testimony to that effect
inconsistent, and his characterization of these
attacks therefore not deserving of credibility.
The record establishes that, far from being "a
significant fact that one . . . would be expected to state
in the asylum application or supporting affidavit," as the IJ
asserted, accounts of political attacks and killings in
Guatemala refer to "unknown attackers," "unidentified men,"
"armed assailants" and members of "death squads"
interchangeably. Cordero's descriptions of his and his
family's attackers are thus consistent with how similar
incidents are described in Cordero's supporting evidence.
The record reveals that precisely because these groups are
unofficial and "clandestine" they are by definition
-12- 12
"unknown." In fact, the record suggests that in most
instances the only way they are knowable, i.e.,
distinguishable from mere bandits and criminals, is by the
threats and indications of motive that typically precede or
accompany their violence. Both Cordero's testimony and his
affidavit refer repeatedly to the attackers' demands that he
discontinue his activities with Laicos, and to warnings of
future violence should he disregard them.
Viewing Cordero's affidavit and testimony "in light
of the record as a whole," it is difficult to perceive how a
reasonable factfinder could find an inconsistency between the
labels "death squad" and "unknown armed men" sufficient to
impugn the applicant's credibility. Similarly, Cordero's
testimony concerning "strongly armed men with vehicles
without number plates" is consistent with both labels.
2. "One must question why [Cordero] would report these
threats to national police of the Guatemalan
government."
The record shows that in Guatemala it is, among
other things, a lack of response by authorities with the ____
power to halt these sorts of attacks that suggests that a
particular incident was no ordinary crime or random violence.
Viewed in this context, it makes perfect sense that victims
would report violent incidents to the authorities. In fact,
given that the record contains several examples of victims or
-13- 13
relatives reporting such incidents to police, it does not
support the assumption that Guatemalans would not attempt to
exercise their legal rights in order to prevent, redress or
simply record incidents of persecution.
3. Given that Cordero testified that the death squads
always carry rifles and use them with impunity,
"one must wonder why [neither he nor his] two
brothers who were allegedly attacked by death squad
members were not shot or apparently attacked with
firearms and were not killed."
The record documents numerous politically motivated
attacks upon social activists and religious lay workers,
many, if not most, of which are characterized by acts of
violence accompanied by warnings and threats of future
violence that do not result in the death of the victim(s).
The record suggests that the use of violence as a vehicle for
intimidation is widespread in Guatemala. Understood in this
context, a reasonable interpretation of Cordero's testimony
that the death squads use their weapons with impunity would
encompass their use for purposes of intimidation, and not
merely for killing.
It is difficult to see how a reasonable factfinder
could view Cordero's off-hand comment regarding his
attackers' fondness for weaponry in the context of this
record, and conclude that his credibility has been
-14- 14
compromised. Moreover, to infer that an asylum applicant is
unlikely to be persecuted because he and his relatives were
not killed during attempts to terrorize them "lead[s] to the
absurd result of denying asylum to those who have actually
experienced persecution and were fortunate enough to survive
. . . ". Del Valle v. INS, 776 F.2d 1407, 1413 (9th Cir. _________ ___
1985).
4. The IJ found it "not particularly credible" that
Cordero "would not tell his alleged attackers in
October of 1990 that he was no longer a member of
or active in the Laicos religious movement if in
fact he was threatened . . . for his religious
activities."
There is perhaps a superficial basis for the IJ's
question. How much credit, however, would his attackers give
to a protestation that, after so many years, he had resigned
or retired? It is to be noted that this confrontation
occurred in an urban area, without the attackers waiting to
find him in the countryside. Could he reasonably expect to
end these threats by talk?
5. The IJ found it "not particularly credible that
[Cordero's] attackers, if they were truly
interested in his religious activities, would rob
him as opposed to physically harming him as they
had allegedly threatened to do. . . .".
-15- 15
The record, documenting a wide variety of
exploitation, including thefts of documents, robberies, and
ransacking of artwork, religious and other valuable property
by those seeking to terrorize or intimidate the populace, is
to the contrary, and contains no evidence to support this
assumption.
6. "One must wonder why the Guatemalan government
would place its seal on a document . . . extolling
[Cordero's] virtues in a movement allegedly
targeted by government death squads or would
provide information purporting to corroborate the
death squad atrocities."
Referring to the letter from the Laicos leadership
commemorating Cordero's service and resignation, and to
certain hospital documents, it appears that the IJ assumed
the government puts its stamp of approval on documents
executed upon paper bearing government "seals" after their _____
completion in concluding that they therefore deserve "little
weight." This assumption is not only unsupported by any
discernible evidence, but is contradicted by Cordero's
testimony that these documents were never submitted to any
arm of the Guatemalan government. In fact, examination of
the documents belies the IJ's conclusion: paper preprinted
with such seals appears to be obtainable from the government
merely by payment of fifty "centavos de quetzal" for the
-16- 16
purpose of executing "official" documents of any sort, thus
the government never sees, let alone approves their contents,
as Cordero himself testified.
7. The IJ found that Cordero's supporting documents
"are not under oath, are conclusory in nature,
provide no foundation for the stated conclusions
and . . . are suspect at best."
An examination of the letters, hospital reports and
other documents submitted in support of Cordero's claim
reveals that they were executed on official paper, signed by
the affiant, sealed with, e.g., "Laicos Comprometidos,"
"Hospital General San Juan de Dios" or "Hospital Roosevelt"
insignia, and included the language "giving faith to what was
previously said" or "CERTIFIES." There is no evidence that
this is insufficient to be considered a sworn statement in
Guatemala. Both medical statements are signed by hospital
officials and the heads of the examining departments; both
detail the injuries, and their causes, sustained by Cordero's
brothers, as contained in their medical records. The Laicos
Comprometidos document is signed by both the President and
Secretary of the organization and describes Cordero's work in
detail. No reasonable interpretation of these documents
supports the immigration judge's conclusions as to their
authenticity or worth. Cf., Dawood-Haio v. INS, 800 F.2d 90, ___ ___________ ___
96 (6th Cir. 1986) (observation that petitioner's sworn
-17- 17
statements "are not documented" to conclude he is not telling
the truth "is a non-sequitur").
8. The IJ found the fact that Cordero's wife signed
her full name on letters to him, and that the
letters "are addressed to respondent's formal name"
suspect because "one would normally expect the
spouse to use the more familiar form."
The record reveals that Cordero's wife opened her
letters to her husband with either "Dear Paco," "My Beloved
Husband," or "My dear one," while addressing the envelopes to _________
"Senor Juan Francisco Cordero Trejo." It is impossible to
see how this is contrary to what "one would normally expect"
anywhere. Nor is there any evidence in the record to suggest
that signing a letter to a spouse residing in a foreign
country by using one's full name is contrary to the common
practice of someone of Mrs. Cordero's cultural background.
9. If Cordero "were truly targeted by the government,"
it is "not particularly plausible" that he obtained
a passport.
This court has acknowledged that ability to obtain
a passport does not necessarily indicate absence of
persecution. Ipina v. INS, 868 F.2d 511, 515 n.9 (1st Cir. _____ ___
1989). The "mere possession of a valid national passport is
no bar to refugee status." United Nations High Commissioner
for Refugees, Handbook on Procedures and Criteria for ____________________________________________
-18- 18
Determining Refugee Status, 48, at 14 (Geneva 1979); See, __________________________ ___
Turcios v. INS, 821 F.2d 1396, 1402 (9th Cir. 1987) _______ ___
(incorrect for IJ to assume government that allows a person
to leave will not persecute him upon return). Furthermore,
Cordero is not claiming to have been targeted and threatened
by the civilian government, but by a shadowy, extra-legal
entity associated with the Guatemalan military.
10. The IJ assumed that because Cordero never held
office in Laicos, and led only two or three
missions per year, his involvement in this
religious movement was "relatively limited," and
that since officers of Laicos "suffered no apparent
harm . . . for the past several years," Cordero had
"embellished" his alleged fear: "Certainly the
leading officers . . . are more visible and
susceptible to potential persecution than are the
rank and file members such as respondent."
The record is replete with references to incidents
of politically, socially or religiously motivated persecution
of precisely the sort of non-prominent lay or volunteer
workers, like Cordero, who carried out the missions for
social change to which they or their organizations are
committed. The IJ's conclusion about who would have a
legitimate fear under these circumstances in Guatemala thus
-19- 19
cannot be derived from a reasonable appraisal of the evidence
presented in the record.
* * *
Each "inconsistency" or "implausibility" that the
IJ identified either appears to be based upon "expectations"
without support in the record, or inexplicably refutes
uncontroverted testimony, or is flatly contradicted by
relevant background and country conditions evidence. It is
apparent that the IJ did not consider Cordero's testimony and
evidence "in light of general conditions" in Guatemala, as
required by law. 8 C.F.R. 208.13(a). The IJ never
referred to the significant country conditions evidence in
the record.
This court, in reversing the Board in Perez-Alvarez _____________
v. INS, adopted the analysis of a dissenting Board member: ___
As a general rule, in considering claims
of persecution I think it highly
advisable to avoid assumptions regarding
the way other societies operate. Time
and again this Board has considered
appeals in which assumptions of this
nature have been proven to be totally
wrong . . . .
857 F.2d 23, 24 (1st Cir. 1988) (nothing in record sustains
IJ's assumptions, "except perhaps his general perception of
life or political conditions in El Salvador which may or may
not be grounded in fact").
Here, the IJ's conclusions are not drawn from any
perspectives offered by the unique vantage point of the
-20- 20
factfinder, such as witness demeanor, conflicting or confused
testimony, etc., from which credibility is typically
assessed. In fact, it is difficult to ascertain from what
sort of evidence the IJ drew his credibility conclusions.
The opinion states no more than "one must question why . . .
" or "one must wonder why . . . ." As the record contains no
evidence that supports these findings, we find that they
unreasonably eviscerate Cordero's attempt to establish both
the objective and the subjective elements of his asylum
claim--that he has been, and fears being again, targeted for
persecution in Guatemala.
-21- 21
B. Background and "Country Conditions" Evidence B. Background and "Country Conditions" Evidence ______________________________________________________
1. Credibility and Context 1. Credibility and Context _________________________________
A "well-founded fear of persecution" contains both
a subjective and an objective element. Cardoza-Fonseca, 480 _______________
U.S. at 430-31, 440. Alvarez-Flores v. INS, 909 F.2d 1, 5 ______________ ___
(1st Cir. 1990). The former is established via the
applicant's credible testimony that his fear is genuine;
while the latter is largely dependent upon the context and
believability he can establish for his claims through
presentation of reliable, specific, objective supporting
evidence. Id. (collecting cases). In addition, the Code of ___
Federal Regulations provides that
[t]he testimony of the applicant, if __
credible in light of general conditions _________________________________________
in the applicant's country of nationality __________________________
or last habitual residence, may be
sufficient to sustain [his] burden of
proof without corroboration.
8 C.F.R. 208.13(a) (emphasis added).
The Board recognizes the importance of documentary
evidence both in providing a plausible context for an asylum
applicant's claim, and in making credibility assessments:
Without background information against
which to judge the alien's testimony, it
may well be difficult to evaluate the
credibility of the testimony. . . . The
applicant's statements cannot . . . be
considered in the abstract, and must be
viewed in the context of the relevant
background situation. A knowledge of
conditions in the applicant's country of
origin . . . is an important element in
assessing the applicant's credibility.
-22- 22
Matter of Dass, Int. Dec. 3122, 1989 WL 331876, at *10 _______________
(citation omitted). "[T]he general rule regarding the
consideration of asylum applications by immigration judges
and the Board . . . is that they must be evaluated based on
matters of record (i.e., based on the evidence introduced by
the parties to the case under consideration). Id. at LEXIS ___
*9.
Cordero submitted ample documentary evidence
confirming persecution of religious, community, and social
activists, religious lay workers and members of the clergy.6
This evidence suggests that all such activists tend to be
viewed by the shadowy, quasi-military "death squads" Cordero
claims were hounding him and others as responsible for
inciting rebellion among poor peasants in the countryside,
simply for helping to improve their quality of life. It is
thus extremely important for contextualizing, in the absence
of direct corroboration, the events which Cordero claims
constitute persecution or the threat of persecution on
account of activities similar to those of other victims in
Guatemala.
Both the judge and the Board failed to address much
of Cordero's evidence. With all deference, it is far too
____________________
6. The Board nowhere suggests that this evidence is
unreliable, and we note that it comes from sources, such as
the State Department and internationally recognized non-
governmental organizations, generally regarded by courts of
law as reliable.
-23- 23
extensive and significant to be dismissed with a general
statement. This failure unreasonably eviscerates the
applicant's attempt to establish the objective element of his
asylum claim.
2. Pattern and Practice 2. Pattern and Practice ______________________________
The "Immigration Judge shall not require the
applicant to provide evidence that he would be singled out
individually for persecution" if he establishes his inclusion
in and identification with "similarly situated" groups of
persons against which there is a "pattern or practice" of
persecution in his country on account of any of the five
statutory grounds for asylum. 8 C.F.R. 208.13(b)(2)(i).
Cordero supports his fear of persecution on account of one or
several statutory grounds with considerable documentation
concerning the treatment of persons in Guatemala engaged in
similar activities and motivated by similar religious and
social concerns as himself. There are some 150 pages of news
items, reports from the State Department, and from
international human rights and non-governmental
organizations.
Again, the Board makes no mention of this evidence,
and no effort to engage in the inquiry necessitated by
regulation. Id. The record contains upwards of sixty ___
specific incidents of threats, kidnapping, disappearances,
murder and other infliction of harm upon the clergy, lay
-24- 24
church workers and others connected to church-related
activities. It also contains information regarding similar
violenceagainsthundredsof othersinvolvedincomparableactivities.
V. V. __
CONCLUSION CONCLUSION __________
Although, for the reasons stated, we believe the
present decision denying eligibility cannot stand, we are not
sufficiently moved to depart from the usual practice and rule
as matter of law. We remand for further consideration by the
Board. At the same time, in all fairness, we apprise the
Board that we have grave doubts whether a reasonable fact-
finder making the full study this record calls for could deny
refugee status to Cordero. The question whether asylum
should be granted to Cordero, assuming him to be a
statutorily eligible refugee, is a matter for administrative
determination.
Remanded. ________
-25- 25
Francisca Sophia Ipina v. Immigration and Naturalization ... , 868 F.2d 511 ( 1989 )
William Alexander Alvarez-Flores v. Immigration and ... , 909 F.2d 1 ( 1990 )
Jorge Perez-Alvarez v. Immigration and Naturalization ... , 857 F.2d 23 ( 1988 )
Samuel Novoa-Umania v. Immigration and Naturalization ... , 896 F.2d 1 ( 1990 )
Tesfaye Aberra Gebremichael v. Immigration and ... , 10 F.3d 28 ( 1993 )
Javier A. Martinez v. Immigration and Naturalization Service , 970 F.2d 973 ( 1992 )
Tarek Ghebllawi v. Immigration & Naturalization Service , 28 F.3d 83 ( 1994 )
Salvador Del Valle v. Immigration and Naturalization Service , 776 F.2d 1407 ( 1985 )
Hugo Turcios v. Immigration & Naturalization Service , 821 F.2d 1396 ( 1987 )
Consolidation Coal Company v. National Labor Relations Board , 669 F.2d 482 ( 1982 )
Alberto Damaize-Job v. Immigration and Naturalization ... , 787 F.2d 1332 ( 1986 )
Munaim J. Dawood-Haio v. Immigration & Naturalization ... , 800 F.2d 90 ( 1986 )
luis-alberto-sotelo-aquije-v-william-s-slattery-district-director-of-the , 17 F.3d 33 ( 1994 )
Vicente Osorio v. Immigration and Naturalization Service, ... , 18 F.3d 1017 ( 1994 )
Universal Camera Corp. v. National Labor Relations Board , 71 S. Ct. 456 ( 1951 )
Radio Officers' Union of the Commercial Telegraphers Union ... , 74 S. Ct. 323 ( 1954 )
Consolo v. Federal Maritime Commission , 86 S. Ct. 1018 ( 1966 )
Immigration & Naturalization Service v. Cardoza-Fonseca , 107 S. Ct. 1207 ( 1987 )