Interim Decision #3063
MATTER OF AMICO
In Deportation Proceedings
A-30164305
Decided by Board April 21, 1.988
(1) "Administrative closing" is merely an administrative convenience which allows
the removal of cases from the calendar in certain situations, without the entry of
a final order.
(2) Where, after several hearings and continuances, the respondent failed to appear
at a rescheduled hearing to pursue an application for relief from deportation, the
immigration judge should not have administratively closed the case, but rather
should have held a hearing in absentia and entered a final order in the case.
CHARGE:
Other. Act of 1952—Sac 941(04 [R TT _S 6 1251(a)(4)]—Crime invnlving moral
turpitude
ON BEHALF OF RESPONDENT: ON BEHALF OF SERVICE:
Pro as Richard G. Buyniski
General Attorney
BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members
In a decision and order dated July 17, 1986, an immigration
judge administratively closed the respondent's case because the respondent failed to appear for a scheduled hearing and could not be
located. The Immigration and Naturalization Service appealed. The
appeal will hie sustained and the record will be remanded to the immigration judge for further action.
The decision which the Service seeks to have reviewed is interlocutory in nature. This Board does not ordinarily entertain interlocutory appeals. See Matter of Ruiz Campuzano, 17 I&N Dec. 108
-
(BIA 1979); Matter of Ku, 15 I&N Dec. 712 (BIA 1976); Matter of
Sacco,
15 I&N Dec. 109 (BIA 1974). However, we have on occasion
ruled on the merits of interlocutory appeals where we deemed it
necessary to address important jurisdictional questions regarding
the administration of the immigration laws, or to correct recurring
problems in the handling of cases by immigration judges. See
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Interim Decision #3063
Matter of Correa, 19 I&N Dec. 130 (BIA 1984); Matter of Victorino,
18 I&N Dee. 259 (BIA 1982); Matter of Alphonse,
18 I&N Dec. 178
(BIA 1981); Matter of Wadas,
17 I&N Dec. 346 (BIA 1980); Matter of
Seren,
15 I&N Dec. 590 (BIA 1976); Matter of Fong,
14 I&N Dec. 670
(BIA 1974). In. the present case, we have decided to accept this interlocutory appeal in order to insure proper use of the administrative closing procedure.
The respondent is a 28 year old native and citizen of Italy. He
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was admitted to the United States on May 21, 1971, as a lawful
permanent resident. On January 13, 1981, an Order to Show Cause
and Notice of Hearing (Form 1-221) was issued against him, alleging that he had been convicted of armed robbery on two separate
occasions. He was charged with deportability under section
241(a)(4) of the Immigration and Nationality Act, 8 U.S.C.
§ 1251(aX4) (1982), as an alien who, at any time after entry, is convicted of two crimes involving moral turpitude, not arising out of a
single scheme of criminal misconduct.
A deportation hearing was commenced on February 14, 1985, but
was continued to enable the respondent to obtain counsel. On June
4, 1985, the respondent appeared without counseL He admitted to
all the allegations in the Order to Show Cause, although he appeared to deny deportability. The respondent's conviction records
were offered by the Immigration and Naturalization Service and
were placed into evidence. The case was then continued so that the
respondent could complete and file an application for a waiver
under section. 212(c) of the Act,
8 U.S.C. § 1182(c) (1982). The section
212(c) application was filed on April 22, 1986. On May 2, 1986, the
respondent appeared for his scheduled hearing. He indicated that
he wished to be represented by counsel but that he had been
unable to find an attorney to represent him without fee. The respondent also informed the immigration judge that his parole had
been revoked because he had been arrested and charged with assault and battery with a deadly weapon. He claimed to be a victim
of mistaken identity and asserted that he would be cleared of the
charges. He requested a continuance until such time as the criminal proceedings were completed. The Service objected to another
continuance, but the immigration judge granted the respondent's
request. At that time a written notice was hand-delivered to the respondent stating that his next hearing was scheduled for July 17,
1986, at 9:00 a.m. The respondent did not appear at that time. The
Service was prepared to go forward with the hearing and objected
to the immigration judge's administratively closing the case, but
the immigration judge nevertheless issued the decision and order
which are the subject of this appeal_
Interim Decision #3063
The Service argues in its appeal that the immigration judge
acted incorrectly in administratively closing this case instead of
holding a hearing in absentia and issuing a final decision. Under
section 242(b) of the Act,
8 U.S.C. § 1252(b) (1982), a hearing may be
held in absentia if an alien "has been given a reasonable opportunity to be present . . . and without reasonable cause fails or refuses to attend." See Matter of Marallag,
13 I&N Dec. 775 (MA
1971); see also Matter of Perez,
19 I&N Dec. 433 (BIA 1987). In the
present case, the respondent has offered no explanation for his failure to appear for the hearing.
We agree with the Service That the immigration judge should not
have administratively closed this case but rather should have held
an in absentia hearing and issued a final order. 1 The respondent
had appeared for earlier hearings at which evidence and testimony
were taken and deportability established. An application for a section 212(c) waiver was duly filed. A number of continuances were
granted to give the respondent every opportunity to fully present
his case. The respondent personally received written notice of the
July 17, 1986, hearing. Under the circumstances of this case, there
is no reason why an in absentia hearing should not have been held,
and, in fact, administrative closing was inappropriate. Holding a
hearing allows the entry of an order which can then be executed
upon the next contact with the respondent. When a case is administratively closed, the respondent is allowed, by simply failing to
appear, to avoid an order regarding his deportability, and the consequences an order of deportation could bring. We shall therefore
remand this case to the immigration judge with the direction that
he enter a final order in this case in absentia.
ORDER: The appeal is sustained and the record is remanded
to the immigration judge for further action in accordance with the
foregoing decision.
The administrative closing of a case does not result in a final order. It is merely
an administrative convenience which allows the removal of cases from the calendar
in appropriate situations.
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Interim Decision #3065
In a decision dated August 14, 1984, the immigration judge found
the respondent deportable as charged, denied his applications for
asylum and withholding of deportation, but granted him voluntary
departure. The respondent has appealed from that decision. The
appeal will be dismissed.
The respondent is a 33-year-old native and citizen of El Salvador
who entered the United States in 1982 without inspection. He conceded deportability at his hearing. The sole issue on appeal concerns his eligibility for asylum. and for withholding of deportation.
The respondent maintains that he will be persecuted and harmed
by leftist insurgents in El Salvador on account of his association
with the Goverment of El Salvador. He testified. that he was a
member of the national police in El Salvador from 1967 to 1980 and
a guard at the United States Embassy from 1980 until 1982. In
both capacities, the respondent and his fellow officers were attacked by guerrillas on several occasions. In one incident, for example, while checking the highways, guerrillas assaulted his police
group and killed one of his fellow officers. On another occasion,
four guerrillas in an automobile machine-gunned the Embassy
while he was standing guard. When the guerrillas returned for a
second attach, they were captured.
The respondent further testified that many inhabitants of his
hometown had joined the guerrillas and they were very active in
that area. The guerrillas there knew him by name, knew he was a
member of the police, and had threatened him personally while he
was a member of the national police. He stated that the government was unable to protect him in El Salvador and he had fled to
avoid being killed. The respondent additionally testified that two of
his relatives, who had been 'local commanders," had committed
suicide because of their fear of the guerrillas.
In addition to his own testimony, the respondent presented two
witnesses who had known him in El Salvador. They testified that
the situation in his hometown was very dangerous; that it was an
area of ongoing fighting between the military and the guerrillas;
that the guerrillas there killed people for "having been" in the
military; that the guerrillas knew of the respondent's past service;
that he would be punished or "disappear" if he returned to his
hometown even if he was no longer in service; and that the government could not protect him. One of the two witnesses also stated
that the guerrillas had the names of the people who had been in
the service and would. immediately find out if the respondent returned to his hometown.
An alien who is seeking -withholding of deportation from any
country must show that his "life or freedom would be threatened
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Interim Decision #3065
in such country on account of race, religion, nationality, membership in a particular social group, or political opinion." Section
243(h)(1) of the Immigration and Nationality Act, 8 U.S.C.
§ 1253(h)(1) (1982). In order to make this showing, the alien must
establish a "clear probability" of persecution on account of one of
the enumerated grounds. INS v. Stevie,
467 U.S. 407 (1984). This
clear probability standard requires a showing that it is more likely
than not that an alien would be subject to persecution.
Id. at 429-
30.
In order to establish eligibility for a grant of asylum, an alien
must demonstrate that he is unwilling or unable to return to his
country because of persecution or a "well founded fear" of persecu-
-
tion on account of race, religion, nationality, membership in a particular social group, or political opinion. Section 208 of the Act, 8
U.S.C. § 1158 (1982). The Board previously took the position that, as
a practical matter, the showing required to establish a well-founded fear of persecution for asylum purposes was the same as that
required to establish a clear prol3shility of persecution for purposes
of withholding of deportation. Matter of Acosta,
19 I&N Dec. 211
(BIA 1985). The Supreme Court has rejected this approach in INS
v. Cardoza-Fonseca,
480 U.S. 421 (1987). In that case, the Court
found it reasonable to assume that Congress intended to make it
more difficult to establish absolute entitlement to withholding of
deportation tinder section 243(h) than to establish mere eligibility
for asylum under section 208 of the Act.
Id. at 443-44. In Matter of
Mogharrabi,
19 I&N Dec. 439 (BIA 1987), the Board reexamined the
burden of proof in asylum cases in light of the Supreme Court's
holding. In that case, it was held that an applicant for asylum has
established a well-founded fear if a reasonable person in his circumstances would fear persecution on account of one of the
grounds specified in the Act. We noted that a reasonable person
may fear persecution even where its likelihood is significantly less
than clearly probable. In considering asylum claims, an alien's own
testimony may be sufficient, without corroborative evidence, to
prove a well founded fear of persecution where that testimony is
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believable, consistent, and sufficiently detailed to provide a plausible and coherent account of the basis for his fear.
Based upon. our review of the record, we find that the respondent
has failed to demonstrate his eligibility for asylum and, consequently, also has not satisfied the higher burden of proof necessary
to establish eligibility for withholding of deportation.
There are two related, but distinct, bases underlying this respondent's asylum claim. The first is his fear arising from the
events that occurred while he was a policeman and guard in El Sal-
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Interim Decision # 3065
vador prior to his departure in 1982. The second aspect of his c aim
former national police-isthefar wlcpseutiona
man if he returns to El Salvador.
We do not find that the respondent can demonstrate a well-founded fear of persecution "on account of orie of the grounds
specified in the Act based. on the events that occurred while he was
a policeman and guard in El Salvador from 1947 to 1982. In so
holding, we find that dangers faced by policemen as a result of that
status alone are not ones faced on account of race, religion, nationality, membership in a particular social group, or political opinion.
There is presently a political struggle ongoing in El Salvador, the
ultimate objective of which is supremacy of one side over the other.
The guerrilla s, whom the respondent fears, appear intent on overthrowing the government. The government's obvious intent is to
thwart the guerrillas' objectives. Unfortunately, violence appears
inherent to such revolutionary struggles. Guerrillas often engage
in violence, net only against military targets, but also against civilian institutions that, whether intentionally or net, support domestic stability and the strength of the existing government. Policemen are by their very nature public servants who embody the authority of the state. As policemen around the world have found,
they are often. attacked either because they are (or are viewed as)
extensions of the government's military forces or simply because
they are highly visible embodiments of the power of the state. In
such circumstances, the dangers the police face are no more related
to their personal characteristics or political beliefs than are the
dangers faced by military combatants. Such dangers are perils arising from the nature of their employment and domestic unrest
rather than "on account of immutable characteristics or beliefs
within the scope of sections 101(a)(42)(A) or 248(h) of the Act, 8
U.S.C. §§ 11011(a)(4.2)(A) and 1253(h) (1982). Accordingly, we do not
find that the respondent has demonstrated a well-founded fear of
persecution "on account of ' one of the grounds protected by the
Act by virtue of the attacks and dangers he faced as a policeman
and guard in. El Salvador prior to his departure In 1982.
We note tiat if one were to find that a policeman or guerrilla
was a victim of "persecution" within the scope of the Act based
solely on the fact of an attack by one against the other, then it
would follow- that the attacker had participated in an act of "persecution" that would forever bar him or her from relief under sections 208(a) cr 243(h). Such a "broad" interpretation of the concept
of persecution "on account of race, religion, nationality, membership in a particular social group, or political opinion" would have
the actual effect of greatly narrowing the group of persons eligible
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Interim Decision #3065
for asylum and withholding. Virtually all participants on either
side of an armed struggle could be characterized as "persecutors"
and would thereby be ineligible for asylum or withholding of deportation. The concept of "persecution" has not been so broadly defined.
The second aspect of the respondent's claim is his fear arising
from his status as a former member of the national police. This is
in fact an immutable characteristic, as it is one beyond the capacity of the respondent to change. It is possible that mistreatment occurring because of such a status in appropriate circumstances
could be found to be persecution on account of political opinion or
membership in a particular social group. For example, where hostilities have ceased, an asylum applicant who is subject to mistreatment because of a past association may be able to demonstrate a
well-founded fear of persecution on account of a ground protected
by the Act. We note that an applicant does not bear the unreasonable burden of establishing the exact motivation of a "persecutor"
where different reasons for actions are possible. However, an applicant does bear the burden of establishing facts on which a reasonable person would fear that the danger arises on account of his race,
religion, nationality, membership in a particular social group, or
political opinion. The Government may also introduce supporting
or contradictory evidence regarding both the potential for mistreatment and the reasons therefor.
In this case, the facts surrounding the possible danger faced by
the respondent if he returns to his hometown and, more specifically, the reasons for that danger are not clearly developed. Although
the respondent testified that he fears harm if he returns to El Salvador, his testimony relates to events that occurred while he was
an active member of the government forces prior to his departure
from El Salvador. One of his witnesses stated that the respondent
would face danger if he returned to his hometown but was unable
to testify to any instances of individuals endangered for having
been in the military service. The final witness, however, did testify
that the guerrillas in the respondent's hometown knew of those
"who served in the military" and the respondent would "disappear" if he returned. But this witness also testified that the town
was in a situation of strife between the army and the guerrillas
with "terrible" fighting ongoing.
On this record, we do not find that the respondent has adequately demonstrated a well-founded fear of "persecution" on account of
his status as a former policeman; rather, the record would indicate
a danger that one with ties to a participant in a violent struggle
might expect if he ventures into an area of open conflict. We note
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Interim Decision #3065
that participants in an ongoing armed struggle may well have reasons for refusing to tolerate the presence of "past" opponents in
territories under their control or under dispute, unrelated to persecution on account of a protected status (e.g., the most fundamental
question of whether or not such individual4 are in fact no longer
taking part in the hostilities either overtly or covertly).
Even if one assumes the respondent's claim in this respect has
been otherwise demonstrated, however, we do not find an asylum
claim based on nongovernmental action adequately established
where the evidence the respondent presents is directed to so local
an area of his country of nationality. Although the respondent expressed a general fear of returning to El Salvador, his specific evidence focuses on the danger he would face if he returned to his
hometown, where he is known by guerrillas and the conflict is still
ongoing. The record in fact indicates that the respondent resided in
San Salvador for 2 years prior to his departure from El Salvador
and only visited his mother on weekends at his hometown when he
had permission.
Because we do not find that the respondent has demonstrated his
eligibility for the requested relief from deportation, the appeal will
be dismissed.
ORDER: The appeal is dismissed.
FURTHER ORDER: Pursuant to the immigration judge's
order and in accordance with our decision in Matter of Chouliaris,
16 I&N Dec. 168 (BIA 1977), the respondent is permitted to depart
from the United States voluntarily within 30 days from the date of
this order or any extension beyond that time as may be granted by
the district director; and in the event of failure so to depart, the
respondent shall be deported as provided in the immigration
judge's order_
