Santos Carlos Martinez-Sanchez v. Immigration and Naturalization Service

BRUNETTI, Circuit Judge,

dissenting.

I believe the Board of Immigration Appeals (“BIA”) applied the proper standard to the petitioner’s asylum claim. In the beginning of its decision the BIA applied the well-founded fear standard to both the asylum and withholding of deportation claims. However, equating the standards in this manner was harmless to the petitioner. The BIA then applied the more stringent “life or freedom would be threatened” standard to both claims under §§ 208(a) and 243(h) of the Act. This was the incorrect standard for the asylum claim.

Thereafter, the BIA in two additional paragraphs on page 3 of its decision applied the well-founded fear of persecution standard to both the asylum and withholding of deportation claims. In its conclusion, the BIA stated:

“On the basis of the record before us, we are not satisfied that the respondent has shown that he will be persecuted or that he has a well-founded fear of persecution within the contemplation of §§ 208(a) or 243(h) of the Act. Consequently, the respondent’s appeal from the denial of his application for asylum and withholding of deportation will be dismissed____” (Emphasis added).

The BIA also used its standard “catch-all” language, and found that whether Martinez-Sanchez’ asylum claim was assessed in terms of ‘clear probability,’ ‘good reason,’ or ‘realistic likelihood’ he failed to establish that he will be persecuted or that he had a well-founded fear of persecution.

*1401We have previously held that when the BIA does not explicitly state that the asylum standard is more generous than the withholding of deportation standard, it is not necessarily fatal to the BIA’s decision because “our concern is with the analysis actually applied by the BIA.” Vides-Vides v. INS, 783 F.2d 1463, 1468 (9th Cir.1986). The BIA did not limit its consideration of Martinez-Sanchez’ asylum claim to the clear probability standard. It simply concluded that the request for asylum would fail regardless of the standard applied, including the lesser standard that our court requires. As we have recently stated, “it does not follow that, because the Board would prefer to equate ‘well-founded fear’ with ‘clear probability,’ it always applies the ‘clear probability’ standard no matter what else it says.” Rebollo-Jovel v. INS, 794 F.2d 441, 446 (9th Cir.1986).

We should take the BIA “at its word when it states that it believes a claim should fail under any standard it might apply, unless it is clear to us, from their context in each case, that the Board’s words mean something else.” Id. at 447. I disagree with the majority because, considering the decision as a whole, the BIA has recognized the distinction between the two standards that we have adopted. See Id. at 446; Vides-Vides, 783 F.2d at 1468. If anything, the BIA applied the more lenient standard of well-founded fear to both the asylum and withholding of deportation claims, and therefore any error was harmless.

If evidence in the record substantially supports the BIA’s finding that Martinez-Sanchez’. testimony was not credible, then the facts presented are not credible and the BIA did not abuse its discretion in denying him asylum. See Saballo-Cortez, 761 F.2d at 1264.

Martinez-Sanchez left El Salvador in 1983. However, on both direct and cross-examination he stated that he left El Salvador because of events that occurred in 1982, including a beating, a letter he received, and “loose sheets of paper” from the Popular Forces of Liberation which were thrown at him and which contained a death threat to him and others. Martinez-Sanchez’ asylum application states that he had been mistreated by authorities in his home country because of (1) his political opinion, and (2) because he was a member of a particular social group. He claimed the mistreatment occurred at the hands of the guerrillas who allegedly detained him in 1982 for three hours, interrogated him, and beat him. His asylum application also states that the guerrillas distributed a “hand bill” with his name on it saying “death to ORDEN.” In his application Martinez-Sanchez claimed he had been a collaborator with ORDEN, a paramilitary group, from 1973-83. However, on cross-examination he stated he first joined OR-DEN in “about 1978.” On further cross-examination he indicated that the information on his application was incorrect, and when pressed during cross-examination concerning the date he joined ORDEN, he gave an elusive answer. On a separate page to his application petitioner indicated that he was supposed to report any possible guerrilla activity in “his area” to the government; that ORDEN is a right-wing group; and that the work was voluntary. He testified he was a member of the armed forces and identifies “the order” as the Organization of Order. In his asylum application Martinez-Sanchez stated he had been imprisoned because he was suspected of being a guerrilla, but was released after he proved he belonged to ORDEN.

Martinez-Sanchez also testified that his father was a member of ORDEN, and that his father had been threatened in 1981. He did not identify who threatened his father. His father and family are still living in El Salvador and have not been bothered.

His application states that he is single, but also states that his wife’s name is Amparo Romero-Linares, but that she lived apart from him, and that he has two sons. On cross-examination he testified that he has four children. The IJ found that Martinez-Sanchez left his wife and four children with his parents in El Salvador and that they have not been bothered.

Based on his application and testimony, the IJ determined that the persons threat*1402ening Martinez-Sanchez were the guerrillas, and that his asylum application states, that they were the “authority” mistreating him because of his political opinion and membership in a particular social group. The petitioner never presented any evidence that the guerrillas were the “authority” in his country. The IJ further noted that although Martinez-Sanchez left his home six days after receiving a threat from the guerrillas in 1982, he lived elsewhere in El Salvador until he left for the United States in 1983. On cross-examination Martinez-Sanchez admitted he left El Salvador only to avoid serving in the El Salvadoran military.

Evidence in the record substantially supports both the IJ’s finding that Martinez-Sanchez’ credibility had not been established, and the BIA’s finding that the IJ correctly determined that Martinez-Sanchez was not a credible witness on the basis of his demeanor and inconsistencies in the record. There are substantial discrepancies between his asylum application and his testimony, as discussed above, which would support the IJ’s credibility determination. See Saballo-Cortez, 761 F.2d at 1264.

I respectfully dissent and would deny the petition for review.