OpenJurist

917 F2d 27 Chicas-Padilla v. US Immigration and Naturalization Service

917 F.2d 27

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Dagoberto CHICAS-PADILLA, Petitioner,
v.
U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 89-70092.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 19, 1990.
Decided Oct. 29, 1990.

Before FLETCHER, REINHARDT AND LIVELY*, Circuit Judges.

1

MEMORANDUM**

2

Dagoberto Chicas-Padilla petitions for review of the decision of the Board of Immigration Appeals (the "BIA") holding him ineligible for asylum and denying his request for voluntary departure. We grant the petition for review and reverse and remand the BIA's decision.

FACTS

3

Chicas is a 30 year old male who fled El Salvador in January of 1983. While in El Salvador, he attended community college at the Technological Institute in Santa Ana and also took classes at the University of Santa Ana. He worked part time as a traffic court clerk/process server in the municipal traffic court for the City of Santa Ana.

4

Since Chicas was a student, his closest friends were college and university students in El Salvador or individuals who worked in these institutions. He was friendly with and frequently associated with those in the academic community who were members of the Revolutionary Movement of Secondary Students ("MERS") and/or members of the National Teachers Union ("ANDES"). Although he was not a card carrying member of these political organizations, he sympathized with the goals of MERS and supported many other political organizations. The petitioner believed that he needed to do something about social injustice in El Salvador. To further this objective, he engaged in the following political activities: (1) he encouraged Salvadoran citizens to join and participate in political demonstrations; (2) he participated in and encouraged discussion groups on political issues; (3) he collected money to support the political organizations with which he sympathized; and (4) he made others aware that he too supported the goals of these political groups. As a result of his political involvement, Chicas feared that he would be kidnapped by the government as a suspected subversive.

5

His anxiety was reenforced by many events, including the murder of his friend, Rene Perez, an officer of MERS, by a Salvadoran "death squad." Another longtime friend and member of MERS, Nemecio Lemos-Castillo, was also murdered. Chicas believes that he was killed because of his affiliation with MERS. A third friend, Dagoberto Lopez, a secretary at the National University, was kidnapped by masked men, killed by gun shots, and dumped nearby. The petitioner testified that he personally knew at least nine other students or university workers who had been killed by the military. In addition, he and his wife discovered three human heads exhibited on a pile of rocks at a vacant site near his home. Since the features were distorted, he could not identify the victims, but he was convinced that these people were killed because "they were members of an organization, a revolutionary organization."

6

In 1981, military authorities visited his mother's home at least five times, making inquiries concerning his status as a student. Chicas testified that he knew that the authorities were inquiring about him because they described him to his mother. In a letter to the Immigration Judge ("IJ"), his mother attests to the fact that these inquiries continued even after the petitioner fled the country.

7

In February 1982, while the petitioner was riding a bus, the bus was stopped by a contingent of soldiers. Chicas and a female passenger were ordered off the bus. While the woman was released after a few hours, Chicas was detained for further questioning. For seven hours, he was tied to a lamp post with his hands secured behind his back, and repeatedly kicked and beaten by soldiers with their rifle butts. He was interrogated concerning people he did not know, but whom the soldiers suspected of guerrilla activity. He believed that the soldiers were suspicious of him because he was a student. He testified that "This caused me many questions, many worried questions because of the fact that they had chosen me out specifically." Eventually, he was released and sent home.

8

In June 1982, during another bus ride, the bus was stopped by soldiers. Chicas was the only passenger ordered off the bus. The soldiers repeatedly pushed him around, but would not give an explanation for their actions. Before the bus departed, his brother, an ex-soldier, persuaded the soldiers to release him, thus preventing any further harm to him.

9

As a result of all these experiences, Chicas believed that his life was in danger. He fled El Salvador, with his wife, and entered the United States on or about January 24, 1983, without inspection.

10

Chicas appeals the BIA's decision which denied his application for asylum and withholding of deportation to El Salvador. He also claims that he was deprived of procedural due process of law due to the ineffective assistance of counsel. Chicas asserts that his prior counsel failed to appeal the IJ's denial of his voluntary departure application and thus, the BIA was denied the opportunity to rule on this issue. Should the court affirm the BIA's decision, the petitioner requests that the case be remanded to the BIA on the ineffective assistance of counsel claim.

DISCUSSION

I. THE STANDARD OF REVIEW

11

We review the BIA's factual findings under the "substantial evidence" standard. Rivas v. INS, 899 F.2d 864, 866 (9th Cir.1990) (citing Dias-Escobar v. INS, 782 F.2d 1488, 1492 (9th Cir.1986)). "Questions of law, such as whether the BIA applied the appropriate legal standard, are reviewed de novo." Arteaga v. INS, 836 F.2d 1227, 1228 (9th Cir.1988).

12

II. THE APPLICATION FOR ASYLUM AND WITHHOLDING OF DEPORTATION

13

The Refugee Act of 1980 (the "Act") established the current statutory framework for the granting of asylum to refugees. Under section 208 of the Act, 8 U.S.C. Sec. 1158(a) (1990), the Attorney General may, at his discretion, grant asylum to an alien who qualifies as a "refugee."1 Refugees are persons who cannot return to their native land because of "a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. Sec. 1101(a)(42)(A)(1990). The BIA committed a legal error in concluding that petitioner's case did not fall within any of the aforementioned categories. This error may also have affected its analysis with respect to the conduct that, according to the petitioner, constituted persecution.

14

Chicas' fear of persecution is based on several factors: (1) his association with individuals active in MERS, many of whom have already been assassinated, and his friendship with members or those active in other reformist political organizations; (2) the visits to his home by the military, which continued even after his departure from El Salvador; and (3) the two incidents in which he was taken off buses, and subjected to questioning and beatings by the soldiers.

15

The BIA erred in relying on the fact that the petitioner "did not belong to any organization which might bring him to the attention of the Government," and by discounting the significance of his relationships with those who had already been assassinated. As a result, the BIA failed to discuss the question of whether the petitioner qualified under the political opinion provision of the statute.2 8 U.S.C. Sec. 1101(a)(42)(A)(1990).

16

The BIA made two important legal errors in denying petitioner's claim. First, it held that the incident in which soldiers tied Chicas to a lamp post and beat him for seven hours while interrogating him did not constitute an act of persecution. Although the BIA may have been correct that roadblocks and brief detentions for questioning are "commonplace" occurrences during a civil war and are not persecution, it erred when it held that "abuses by the military of its authority do not constitute persecution within the meaning of the act." The excessive use of force against Chicas turned what might otherwise have been a routine, for El Salvador, "interrogation" into persecution. See Blanco-Lopez v. INS, 858 F.2d 531, 534 (9th Cir.1988) (drawing distinction between legitimate prosecution and unlawful persecution).

17

The BIA committed its second legal error in holding that the military did not detain and beat Chicas "on account of political opinion." The BIA noted that Chicas testified that he was beaten because of his "appearance" and not because of any political activities he engaged in that were known to the soldiers who beat him. But Chicas also testified that certain students, because of their general appearance, were presumed to have opinions hostile to the government. As we held in our recent opinion in Beltran-Zavala v. INS, No. 89-70086, slip op. 10285, 10292 (9th Cir. August 31, 1990), "what is determinative is not that [the petitioner] holds a political opinion, but rather that the Salvadoran government ... has imputed an opinion to [the petitioner] and persecuted him for that reason." See also Desir v. Ilchert, 840 F.2d 723, 728 (9th Cir.1988). The premise of the BIA's decision in this case is that persecution based on appearance and persecution based on political opinion are mutually exclusive. As our cases demonstrate, that premise is erroneous. We have held that "when a government exerts its military strength against an individual ... within its population and there is no reason to believe that the individual ... has engaged in any criminal activity or other conduct that would provide a legitimate basis for government action, the most reasonable inference is that the government's actions are politically motivated." Hernandez-Ortiz v. INS, 777 F.2d 509, 516-517 (9th Cir.1985). There is no evidence in the record which rebuts the presumption that the soldiers' motive for detaining and beating Chicas was political. The BIA therefore erred in holding that the seven-hour beating was not an act of political persecution within the meaning of the Act.32

18

Since the seven-hour beating itself was a significant act of political persecution, we need not consider whether Chicas would likely suffer another such incident upon returning. "[P]ast persecution, without more, satisfies the requirement of Sec. 101(a)(42)(A), even independent of establishing a well-founded fear of future persecution." Desir, 840 F.2d at 729. Thus, had the BIA applied the correct legal principles, it could not have found substantial evidence to support its conclusion that Chicas was not eligible for asylum. We are less certain whether, applying the proper legal standards, the BIA would have been unable to conclude that Chicas had not proved the "clear probability" of persecution necessary to establish entitlement to withholding of deportation. We therefore remand that issue to the BIA. Cf. Rivas, 899 F.2d at 873 (remand futile where evidence is overwhelming that petitioner entitled to relief). On remand, the BIA should re-evaluate the evidence in this case, not just that relevant to the beating, under the proper legal principles and should determine whether Chicas established entitlement to withholding of deportation.4

III. THE PROCEDURAL DUE PROCESS CLAIM

19

Although Chicas was denied voluntary departure by the IJ, the petitioner's former counsel did not raise this issue before the BIA and incorrectly stated that he had been granted thirty days voluntary departure. Chicas asserts that if his denial of asylum is upheld, the voluntary departure issue should be remanded to the BIA due to the ineffective assistance of his former counsel.

20

While we have previously stated that "[i]neffective assistance of counsel in a deportation proceeding is a denial of due process only 'if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case.' " Ramirez-Durazo v. INS, 794 F.2d 491, 499 (9th Cir.1986) (citing Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir.1985)), we do not reach this issue here since the case is to be remanded to the BIA. We note, however, that had the petitioner presented new evidence on appeal which had not been previously proffered because of ineffective assistance of counsel, the proper remedy would have been a motion to the BIA to reopen deportation proceedings. Id. at 500 n. 7 (citing Roque-Carranza v. INS, 778 F.2d 1373, 1374 (9th Cir.1985)).

CONCLUSION

21

The BIA made factual and legal errors in denying Chicas eligibility for asylum. Had it applied the correct legal principles, it would have been compelled to conclude that Chicas was eligible for asylum. The Board's legal errors may have tainted its analysis of the withholding of deportation claim as well. We remand for the BIA to exercise its discretion with respect to the asylum claim and to reconsider its decision on the withholding of deportation claim in light of this memorandum disposition.

22

PETITION GRANTED. REVERSED AND REMANDED.

*

The Honorable Pierce Lively, Chief Judge of the Sixth Circuit Court of Appeals, sitting by designation

**

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Circuit R. 36-3

1

The request for asylum under Sec. 208 and for withholding of deportation under Sec. 243(h), 8 U.S.C. Sec. 1253(h) (1990), are generally treated as one request even though the requests are based on different standards and provide different benefits. While the government in its brief raised both Sec. 208(a) and Sec. 243(h) forms of relief, in its analysis it merged the two issues. The petitioner only discussed his claim for asylum under Sec. 208(a). Thus, we focus on the Sec. 208(a) claim. However, on remand, the BIA should reconsider both possible forms of relief available to the petitioner

2

Unlike the BIA, the IJ discussed the question of Chicas' political opinion. However, he said only that the fact that Chicas is young, is a former student, and is of military age, does not mean that he has the type of political opinion to qualify for protection under the Act. The IJ, like the BIA, failed to consider the significance of the petitioner's actual political conduct and his extensive association with political activists

3

We note that Chicas' assumption that the soldiers did not know who he was may or may not have been correct. Chicas was actively involved in anti-government activities. He encouraged Salvadoran citizens to join and participate in political demonstrations, he participated in and encouraged discussion groups on political issues, he collected money to support political organizations with which he sympathized, and he made others aware that he too supported the goals of these political groups. His activism may well have exceeded that of many actual card carrying members of MERS or of any of the other political organizations which he supported. Chicas was known to have associated with many of those who played a prominent role in the political organizations involved, and who had already been assassinated because of their political views. His activities and associations may have placed him in a position in which he could have been viewed as an enemy of the government. Under these circumstances, while the soldiers may have conducted the seven-hour beating simply because Chicas appeared to be one of those student revolutionaries who was hostile to the government, it is also possible that the soldiers recognized him but did not wish to acknowledge that fact

4

We note that the BIA erred in relying on the alleged "inconsistency" between the fact that Chicas-Padilla believed himself to be a target for government persecution and his part-time job with the municipal traffic court of Santa Ana. The BIA reasoned that if the military wanted to persecute him, they knew where to find him, and would have already done the terrible deed. We have previously rejected this line of reasoning. In Rivas, 899 F.2d at 870, the INS argued that the petitioner could not reasonably fear persecution because the authorities had the opportunity to persecute her since she frequently visited her relatives in prison, but they did not harm her. We held that although she remained safe for a period of time, this fact did not defeat her claim that she faced a clear probability of persecution. See also Damaize-Job v. INS, 787 F.2d 1332, 1333 (9th Cir.1986) (the petitioner's ability to remain unharmed for two years in the country from which he fled did not defeat his claim for asylum and withholding of deportation). Clearly, the government's failure to persecute an individual at a particular moment in time does not mean that the authorities will not attempt to do so in the future; there was no "inconsistency" which needed to be resolved