# Roberto Antonio Aguilera-Cota v. U.S. Immigration and Naturalization Service > Court of Appeals for the Ninth Circuit · September 21, 1990 · 914 F.2d 1375 URL: https://www.frixlaw.com/law-library/cases/9480840 ## Case - **Full name:** Roberto Antonio AGUILERA-COTA, Petitioner, v. U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent - **Court:** Court of Appeals for the Ninth Circuit - **Decided:** September 21, 1990 - **Citations:** 914 F.2d 1375; 1990 U.S. App. LEXIS 16618 - **Precedential status:** Published - **Opinion:** Dissent by Trott - **Judges:** Norris, Reinhardt, Trott - **Cited by:** 300 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9480840 ## How later opinions describe it (automated extraction) - holding that the omission of two collateral incidents is insufficient to support an adverse credibility determination where “there were no contradictions between the information set forth in the application and his testimony” - explaining that an applicant’s “failure to file an application form that was as complete as might be desired cannot, without more, properly serve as the basis for a finding of a lack of credibility” (emphasis added) - finding that inconsistencies between an applicant’s written asylum application and his testimony at the asylum hearing are not enough, standing alone, to serve as a basis for finding a lack of credibility - holding that anonymous note telling the petitioner to quit his government job, along with the questioning of his sister on his whereabouts, were sufficient to establish well-founded fear of persecution - stating that an alien’s “failure to file an application form that was as complete as might be desired cannot, without more, properly serve as the basis for finding a lack of credibility” ## Opinion text TROTT, Circuit Judge, dissenting: 8 U.S.C. § 1158 (a) provides that the Attorney General may in his discretion grant asylum to an alien who qualifies as a “refugee” within the meaning of 8 U.S.C. § 1101 (a)(42)(A) (1990). Section 1101(a)(42)(A) defines a “refugee” as, in relevant part, an alien “who is unable or unwilling to return to” his country of nationality “because of persecution or a well-founded fear of persecution on account of ... membership in a particular social group, or political opinion.... ” To meet this standard, Aguilera-Cota must show his fear of persecution is “both subjectively genuine and objectively reasonable.” Blanco-Comarribas, 830 F.2d 1039, 1042 (9th Cir.1987) (citing Sanchez-Trujillo v. INS, 801 F.2d 1571, 1579 (9th Cir.1986)). Substantial evidence supports the Board’s finding that Aguilera-Cota failed to establish a well-founded fear of persecution. Single episodes of the ransacking of *1385 his house by the military, his receipt of a threatening anonymous note instructing him to resign from his temporary low-level job with the Salvadoran Board of Elections, and an inquiry made at his home regarding his job by a stranger; two episodes of his nearly being drafted by the Salvadoran military; and violence against his relatives unlinked to any danger to himself (all occurring more than five years ago) do not establish an objectively reasonable basis for fear of persecution. Aguilera-Cota has not shown that his “predicament is appreciably different from the dangers faced by all his countrymen.” Sarvia-Quintanilla v. INS, 767 F.2d 1387, 1394 (9th Cir.1985). Evidence of generalized violence in a country by itself is insufficient to support a claim for “refugee” status. See, inter alia, Mendez-Efrain v. INS, 813 F.2d 279, 282 (9th Cir.1987); Rebollo-Jovel v. INS, 794 F.2d 441, 448 (9th Cir.1986), Zepeda-Melendez v. INS, 741 F.2d 285, 290 (9th Cir.1984). A national draft does not constitute persecution. Rodriquez-Rivera v. INS, 848 F.2d 998, 1005 (9th Cir.1988); Kaveh-Haghigy v. INS, 783 F.2d 1321, 1323 (9th Cir.1986) (per curiam). Aguilera-Cota has not shown persecution on account of his political neutrality as a form of political opinion. See Rodriguez-Rivera, 848 F.2d at 1005 . Similarly, he has not shown persecution of Salvadorans who, like him, worked for the Board of Elections. 1 Further, evidence in the record suggests he is motivated by a desire to avoid the draft, not a genuine fear of persecution. Moreover, the Immigration Judge made a specific adverse finding as to Aguilera-Cota’s credibility, finding that “as a witness, [he] is not entirely credible.” This finding extends both to whether his “fear” was genuine as well as to whether it was objectively reasonable. The majority opinion sweeps this finding away, paying only lip service to the requirement that we 'grant substantial deference to a trier of fact who rejects a witness’s positive testimony because it lacks credibility. In his written opinion of June 27, 1986, the Immigration Judge said the following: Finally, this so-called note that the respondent allegedly received while he was working for the government is not a basis for a well-founded fear of persecution. First of all, it is difficult to believe why anyone would be interested in a low-level employee of the El Salvadoran government and would be interested in serving him with any note to quit his employment. Respondent, of course, has no idea who slipped the note under the door. The note was never shown to anyone else. We only have the respondent’s testimony that he did in fact receive a note. Respondent as a witness is not entirely credible. His testimony in the hearing varies from the information submitted on the application for asylum. He mentions incidents in his testimony that are not brought out or even mentioned in the application for asylum. ... The man that came to his home looking for him in his absence (almost always it seems that these things happen in respondent’s absence) does not provide us with sufficient information to determine who was looking for him or why. This so-called stranger apparently never returned to his home because his family continued [sic] to reside in the same home today. It is difficult for me to see after a period of more than two years why respondent would have any fear if he were to return to El Salvador today. (Emphasis added) What more was the Immigration Judge to do? He cited prior inconsistent statements, reasons to believe aspects of Aguil-era-Cota’s testimony were made up, apparently phantom strangers and disappearing bearers of notes, and claims that on their face are hard to swallow. Plus, an alternative explanation for his flight appears on the record: he wishes to avoid military duty. In my view, the majority opinion inappropriately substitutes its view of the witness’s credibility for that of the Immigration Judge, and it does so, with all re *1386 spect, in disregard of basic principles of standard of review jurisprudence. In Blanco-Comarribas , the immigration judge stated: “I have observed [the respondent’s] physical demeanor on the witness stand, and it appears to be candid, credible and sincere.” 830 F.2d at 1042 . That was all it took to establish the requisite subjective fear. Here, the immigration judge explained his view of the adverse credibility of the petitioner, but we relegate his observations and findings to the trashpile, finding diaphanous excuses for everything. I would affirm the decision of the Board of Immigration Appeals. . It is also noteworthy that the United States Department of State’s Bureau of Human Rights and Humanitarian Affairs issued an advisory opinion to the effect that Aguilera-Cota failed to establish a well-founded fear of persecution in El Salvador. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9480840. Public record. Not legal advice.