Marta Brigida Melgar De Torres v. Janet Reno, Attorney General, and the Immigration and Naturalization Service

KEARSE, Circuit Judge,

dissenting:

I respectfully dissent from the denial of the petition of Melgar de Torres (“Mel-gar”) for review of the decision of the Board of Immigration Appeals (“BIA” or “Board”) denying her request for asylum. I would remand to the Board for further proceedings because the record plainly lends itself to a finding — based on Mel-gaos evidence that was found to be “believable” by both the immigration law judge (“IJ”)(Decision dated July 31, 1996 (“IJ Decision”), at 7), and the BIA (see BIA Decision dated March 9, 1998 (“BIA Decision”), at 2 (expressly adopting “the Immigration Judge’s finding that [Melgar] and her husband provided credible and detailed testimony”)) — that Melgar has a well-founded fear of persecution in her native El Salvador, and because some of the language used by the IJ and the BIA creates uncertainty that the Board, in denying asylum, applied the correct legal standard.

An alien seeking asylum under the Immigration and Nationality Act must demonstrate that she is a “refugee” within the meaning of that Act, i.e., that she is unwilling or unable to return to her country “because of persecution or a well-founded fear of persecution,” which may be based on her membership in a cognizable “social *315 group.” 8 U.S.C. § 1101 (a)(42)(A). When the applicant has demonstrated that she has been subjected to past persecution, there is a (rebuttable) presumption that her fear of persecution, were she to return, is well-founded. See 8 C.F.R. § 208.13 (b)(l)(i).

In INS v. Cardoza-Fonseca, 480 U.S. 421 , 107 S.Ct. 1207 , 94 L.Ed.2d 434 (1987), the Supreme Court made clear that the well-founded-fear standard means that an applicant for asylum is not required to show that she “would be” persecuted, 480 U.S. at 430 , 107 S.Ct. 1207 (internal quotation marks omitted), or even that the prospect of persecution is more likely than not. See id. at 430-32, 443-50 , 107 S.Ct. 1207 . In affirming the Ninth Circuit’s remand to the BIA for review of an asylum application under the proper legal standard, the Supreme Court stated:

That the fear must be “well-founded” does not ... transform the standard into a “more likely than not” one. One can certainly have a well-founded fear of an event happening when there is less than a 50% chance of the occurrence taking place.

Id. at 431 , 107 S.Ct. 1207 (endorsing commentator’s observation that if it were “known that in the applicant’s country of origin every tenth adult male person is either put to death or sent to some remote labor camp .... it would be only too apparent that anyone who has managed to escape from the country in question will have ‘well-founded fear of being persecuted’ upon his eventual return.” (emphasis added)). The Court concluded:

Whether or not a “refugee” is eventually granted asylum is a matter which Congress has left for the Attorney General to decide. But it is clear that Congress did not intend to restrict eligibility for that relief to those who could prove that it is more likely than not that they will be persecuted if deported.

Id. at 450 , 107 S.Ct. 1207 .

In the present matter, the IJ found that Melgar, her uncle, and her uncle’s immediate family constituted a cognizable social group. The credited evidence revealed that for years prior to 1992, Melgar had helped her uncle in giving support to the FMLN guerrillas. In January 1992, peace accords were reached between the Salvadoran government and the guerrillas. In November 1992, however, Melgar’s uncle was killed; there evidently was no official investigation; the IJ, apparently accepting Melgar’s belief as to responsibility for this killing, described it as “her uncle’s murder by the authorities.” (IJ Decision at 11.) In December 1992, Melgar, her uncle’s wife, and her cousins (i.e., all of the surviving adults in the social group) were raped by members of the Salvadoran military. In January 1993, a woman with whom Melgar was staying while hoping to obtain a United States visa threatened to turn Melgar and her daughters over to the military. The IJ found that Melgar seemed to have “a legitimate subjective fear, based on her past experiences.” (Id. at 12.) (For reasons not apparent to me, however, the Board repeatedly stated that Melgar had not testified directly as to “why” she feared returning to El Salvador, (BIA Decision at 2 (noting that fact); see id. at 3 n.l (noting it “again”)).)

The IJ, despite finding that Melgar had a legitimate subjective fear based on her past experiences, recommended against asylum, concluding that Melgar had not demonstrated that the authorities “have taken or are inclined to take action harmful to her on th[e] basis” of her membership in her uncle’s family. (IJ Decision at 9.) I question whether this premise itself applies the correct standard; it appears to require proof that if Melgar returned, persecution by the authorities would be more likely than not to occur.

More importantly, the Board itself, in accepting the IJ’s recommendation to deny asylum, stated that Melgar “has not shown that she would be at particular risk of government persecution.” (BIA Decision at 3 (emphasis added).)

*316 As made clear in Cardozcir-Fonseca, however, neither more-likely-than-not nor “would be” is the proper test; and it is not clear to me from either the. I J’s decision or the Board’s decision that the correct legal standard’ was applied. Accordingly, I would remand to the BIA for review of Melgar’s asylum application under the proper legal standard.,-