United States Court of Appeals
For the First Circuit
No. 00-1551
MARVIN VELASQUEZ-VALENCIA,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Chief Judge,
Boudin and Stahl, Circuit Judges.
Heidi E. Harvey with whom Fish & Richardson, P.C. was on
brief for petitioner.
Erin Albritton, Office of Immigration Litigation, Civil
Division, Department of Justice, with whom David W. Ogden,
Assistant Attorney General, Civil Division, Department of
Justice, Richard M. Evans, Assistant Director, and Michael T.
Dougherty, Office of Immigration Litigation, Civil Division,
Department of Justice, were on brief for respondent.
March 30, 2001
BOUDIN, Circuit Judge. Marvin Velasquez-Valencia is
a native and citizen of Guatemala who seeks political asylum in
this country. In 1991, Velasquez (then aged 16) lived on a
large plantation in Guatemala which his stepfather administered
but did not own. During this period a guerilla organization,
urging land redistribution, was engaged in a civil war with the
government. That summer, an armed group of the guerillas
entered Velasquez' home seeking supplies. When his stepfather
refused to assist, he was beaten, threatened, and briefly
kidnapped. In response, Guatemalan army units patrolled the
area for two weeks.
In December 1991 the guerrillas again came to
Velasquez' home, this time threatening and beating his mother
and (according to Velasquez) asking for him by name. Later that
month, the guerillas took him and three friends from church,
demanding that they enlist with the guerrillas. The boys fled
but one was apparently shot and killed in the escape. In
January 1992, Velasquez left the country at his parents'
direction after the army (not the guerillas) tried forcibly to
induct him while he was traveling to Guatemala City. He entered
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the United States illegally through Mexico in February 1992 and
was promptly detained by the INS.
Conceding deportability, Velasquez sought asylum on the
ground that he had been persecuted and had a well founded fear
of future political persecution. See 8 U.S.C. §§
1101(a)(42)(A), 1158(a) (1994).1 At his hearing he testified
to the events just described and offered two letters from his
family. The letters stated that the guerillas were still
looking for him, continued to beat his family, and threatened to
kill Velasquez for having escaped. The immigration judge
rejected Velasquez' claim on the merits and on review in 1996
the Board of Immigration Appeals (the "Board") affirmed, noting
also that the government and the guerrillas had just signed a
peace agreement.
On this appeal the central issue (although not the only
one) is whether the Board properly rejected Velasquez' claim of
"persecution or a well founded fear [of it] on account of . . .
political opinion." 8 U.S.C. § 1101(a)(42)(A). The Board's
findings must be accepted if based on substantial evidence, and
we give some deference to the Board's application of legal
1
Velasquez also sought withholding of deportation, which
requires a more rigorous showing by the applicant. See 8 U.S.C.
§ 1253(h)(1) (1994) (amended by 8 U.S.C. § 1231(b)(3) (Supp. II
1996)); Nelson v. INS, 232 F.3d 258, 261 n.2 (1st Cir. 2000).
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standards to specific facts. Foroglou v. INS, 170 F.3d 68, 70
(1st Cir.), cert. denied, 528 U.S. 819 (1999). Abstract rulings
of law (e.g., the formulation of the standards) would be
reviewed de novo, id., but are not primarily at issue on this
appeal.
The Immigration and Nationality Act protects those who
are threatened with persecution because they hold or are
believed by their persecutors to hold political opinions. 8
U.S.C. § 1101(a)(42)(A); accord INS v. Elias-Zacarias, 502 U.S.
478, 482 (1992). To win asylum, the applicant must persuade the
Board that he has a subjective fear of such persecution and that
the fear is reasonable, that is, that "a reasonable person"
would fear danger and "would fear that the danger arises on
account of his . . . political opinion." In re S-P-, 21 I. &
N. Dec. 486 (BIA 1996) (en banc); accord Aguilar-Solis v. INS,
168 F.3d 565, 572 (1st Cir. 1999). In effect, the immigration
judge and the Board concluded that it was objectively
unreasonable to think that any threat posed to Velasquez was
based on the guerrillas' hostility to his political views.
We think that the Board's judgment is based on
substantial evidence and, if not inevitable, is at least
reasonable. What the raw evidence shows is that the guerrillas
sought to enlist Velasquez and other boys and later, perhaps,
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sought to punish him for evading their "draft"; but nothing
indicates that this was because of any political belief of
Velasquez, either express or imputed. There is no evidence that
Velasquez ever expressed any political support for or opposition
to either side (he said he was neutral) or that the guerrillas
ever attributed to Velasquez any political views; and this is so
even though "neutrality" could itself be a persecutable opinion.
See Novoa-Umania v. INS, 896 F.2d 1, 3 (1st Cir. 1990).
In insurgencies, both sides typically engage in
forcible recruiting of boys or young men. Yes, in theory, the
guerrillas could choose to target a young man who lived on a
plantation, motivated by political views that they imputed to
him; and the motivation for threatened persecution need not be
shown to a certainty. In re S-P-, 21 I. & N. Dec. 486; see also
Aguilar-Solis, 168 F.3d at 572. But there is nothing to show
that such a motive was at work here. Absent such evidence, the
classic pattern of forced recruitment is far and away the more
plausible explanation. Nor does it help Velasquez if his escape
or effort to avoid recruitment motivated the guerrillas' later
visits. See Elias-Zacarias, 502 U.S. at 482-83.
The immigration judge and the Board credited Velasquez'
first hand accounts but expressed some scepticism about the
letters which were admittedly prompted by the deportation
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proceeding. The Board does not ban hearsay, In re Grijalva, 19
I. & N. Dec. 713, 721-22 (BIA 1988), and such reports are
sometimes significant. But neither is the Board obliged to
accept every such document at face value, without regard to
motive or lack of corroboration. Aguilar-Solis, 168 F.3d at
570-71. We need not pursue the issue here because the letters--
even if given full weight--do not show or suggest that any
threat that existed was based on Velasquez' political views,
real or imputed.
Certainly the risks that Velasquez faced in Guatemala
were real ones and, from his standpoint, the threat posed to him
by the guerillas (and apparently the regular army as well) were
no less real if motivated by recruiting goals rather than by any
perception of his own politics. But Congress has chosen to
define asylum as limited to certain categories; and with
exceptions not here relevant, it has not generally opened the
doors to those merely fleeing from civil war. See Aguilar-
Solis, 168 F.3d at 572. Whether it should do so is for Congress
and not the courts to determine.
Turning now to other alleged errors, we do not agree
with Velasquez that the immigration judge ruled as a matter of
law that a claimant had to show open political activity to
establish a threat of political persecution. Nor is there any
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reason to think, as Velasquez claims, that the immigration judge
or the Board misunderstood the law on mixed motive. See In re
S-P-, 21 I. & N. Dec. 486. And, again contrary to Velasquez'
position, the Board need not make detailed findings on every
point. Morales v. INS, 208 F.3d 323, 328 (1st Cir. 2000); Chen
v. INS, 87 F.3d 5, 7 (1st Cir. 1996). Those it made here are
certainly adequate for effective review. Cf. Gailius v. INS,
147 F.3d 34, 43 (1st Cir. 1998).
Finally, Velasquez says that the Board violated his due
process rights by taking judicial notice of the 1996 Guatemala
peace accords; he says that by relying on the accords for the
first time only in its decision on review, the Board prevented
him from countering the evidence or arguing about the inferences
to be drawn. However, the Board manifestly rested its decision
on the same ground adopted by the immigration judge. Whether
the peace accord reference is taken as an alternative ground or
was intended as consolation, it does not affect the outcome.
The petition for review is denied.
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