Amicus Curiae Brief — Immigration & Naturalization Service v. Cardoza-Fonseca

., Supreme Court, U.S.

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No. 85-782 1 || JUL 24 1088

ESSERE SPANIOL, JR

—

IN THE 4

—————

Supreme Court of the United States

OcTOBER TERM, 1985

IMMIGRATION AND NATURALIZATION SERVICE,

LUZ MARINA CARDOZA-FONSECA,

Petitioner,

V.

Respondent.

On Writ Of Certiorari To

The United States Court Of Appeals

For The Ninth Circuit

BRIEF OF AMICI CURIAE

THE AMERICAN CIVIL LIBERTIES UNION;

THE POLITICAL ASYLUM PROJECT OF THE

AMERICAN CIVIL LIBERTIES UNION FUND

OF THE NATIONAL CAPITAL AREA;

IMMIGRANT AND REFUGEE RIGHTS PROJECT

SAN FRANCISCO LAWYERS’ COMMITTEE

FOR URBAN AFFAIRS

IN SUPPORT OF RESPONDENT

Counsel:

ROBERT N. WEINER

SHELLEY R. SLADE

Eric R. BIEL

ARNOLD & PORTER

1200 New Hampshire

Avenue, N.W.

Washington D.C. 20036

(202) 872-6790

Attorneys for Amici Curiae

July 14, 1986

Counsel of Record:

CaROL LESLIE WOLCHOK

122 Maryland Avenue, N.E.

Washington, D.C. 20002

(202) 543-4651

BurRT NEUBORNE

Lucas GUT"NTAG

JacK Nova

132 Wes: 43rd Street

New York, N.Y. 10036

(212) 944-9800

;

'

;

TABLE OF CONTENTS

TABLE OF AUTHORITIES... ceeeeececves

INTEREST OF AMICI...... Co esecececees

SUMMARY OF ARGUMENT... cece scsccscees

ARGUMENT... eeeecccces Co ccccccscccccs

I. INTRODUCTION... c.ccccccccccccvces

II. THE COURT'S TRADITIONAL

APPROACH TO DETERMINING

THE PROPER STANDARD OF PROOF

DICTATES THAT “WELL-FOUNDED

FEAR" BE INTERPRETED TO

REQUIRE A "REASONABLE

POSSIBILITY" OF PERSECUTION OR

A SIMILAR SHOWING......ceeeeeees

A. The Interpretation of

the "Well-Founded Fear"

Standard Should Reflect

the Grave Consequences of

an Erroneous Denial

OF ABVAUMc ec dccccceccecccccs

1. The Standard

of Proof Allocates

the Risk of Error

Based on the

Interests Each Party

BES GE Bebe cccccccces

2. In an Asylum Adjudi-

cation, the Applicant's

Stakes Outweigh the

Government's, and the

12

13

13

Risk of an

Erroneous Decision

Falls Heavily

on the Applicant....... 25

a. The Individual's

a 26

b. The Risk of

a 28

c. The Government's

InterestsS....sseees 32

The Palance of

Interests and

the Risk of Error

in an Asylum

Proceeding Dictate

a Showing Such as

Reasonable

POBBERELEEH sc ccccccccces 35

The Interpretation of

the "Well-Founded Fear"

Standard Should Reflect

the Difficulty Asylum

Applicants Face

in Establishing the

Possibility of Persec-

ution in the Future........ 37

1.

This Court and

Other Courts Frequently

Have Relaxed the

Evidentiary Burden

on a Party Who Must

Establish Future

Harm...... SSeeeeesccoce 37

The Difficulties

Applicants for

Asylum Face in

Establishing the

(ii)

Prospect of Future

Persecution Warrants

a Showing Such as

Reasonable

| & ) | . Sr

IIL. CONCLUSION. .cccccccccccccccvece

APPENDIX A..... coerce ccceseccescces

(iii)

45

49

Al

CASES: age(s

Addington v. Texas, 441 U.S.

418 tis, ) FRPPPPPPPTITTITITTrT rrr

ca € oper V.

; '

Mitchell Brothers' Santa

Ana Theater, 454 U.S. 90

(1981) wc cccceevveseeesesess e*e@eeeeeeeee#re#e#* 25

Cardoza-Fonseca v. Immigration

and Naturalization Service,

767 F.2d 1448 (9th Cir.

1985), cert. granted, 106

Ss. Gee 1181 (1986) -cccvccees e*eenee#eeees##e#*e#e# 46

Carvaja)-Munoz v. Immigration and

Naturalization Service, 743 F.2d

- Me. 2 “epee Ee 46

Colorado v. New Mexic., 467 U.S. 310

(1984) cc ccccccccvecesceces e*eeneeeefeee?ee¢ 12,25

Ethyl Corporation v. Environmental

Protection Agency, 541 F.2d 1

(D.C. Cir.), cert. denied,

426 U.S. 941 (1976) cece eeneevees 40,41,42

Fedorenko v. United States, 449 U.S.

490 (1981) . cece eevcevevecs e*eseeeeee#eee#ee?#¢e« sean

Halperin v. Ce a ntelligence

Agency, 629 F.2d 144 (D.C.

Cir. 1980) ~ccccsccces eeeee eeeeeeneevesr 43,44

(iv)

Herman & MacLean v. Huddleston,

459 U.S. 375 CERES) ccoccccceccecs

me)

Service v. Stevic,

467 U.S. 407 (1984) .cccccccceccee?,8,10,17

Lassiter v. Department

of Social Services,

452 UcB. 1G (A9GL) ccccccccccces

Mathews v. Eldridge, 424 U.S.

319 Dawa 66 6660666606006606606%808

Mullaney v. Wilbur, 421 U.S.

684 cri 6066600666 066060000068

Ng Fung Ho v. White, 259 U.S.

. Rayan ee

Nishikawa v. Dulles, 356 U.S.

129 BE ae

Reserve M Compa Vv.

Environmental Protection

Agency, 514 F.2d 492

ene. ce wecces

Rosenbloom v. Metromedia, Inc.,

SOS Gee 2D (ABTA) ccccccccccccecss

Santosky v. Kramer, 455 U.S.

745 Tt ¢e6eebe6ebeeeensé ences

Schneiderman v. United States,

2B * Sei MP)! Eee

Speiser v. Randall, 357 U.S.

Dae. CE) 66604666665 6666 08 066608

(Vv)

202 242,43

eceeeeae

»+.-passim

Vance v. Terrazas, 444 U.S.

252 CAOSS) ccocccvcccccceccccocccccoccesoese

In re Winship, 397 U.S. 358

(C197O) coccccccccccccccceccs e*eeeneererees -- 14,15

Woodby v. Immigration and

ce,

fs eg pe passim

STATUTES:

Immigration and Nationality Act,

8 U.S.C. § 1101 et seq. (1982)......... 7

Refugee Act of 1980, § 201(a) (42) (A),

8 U.S.C. § 1101(a) (42) (A)

(19B2) ccccccccccccccccccces e*eeeeer#ee#e 6,33

New York Family Court Act, § 622

(McKinney 1975

QNG SUMP. 19B1—B2) .cccccccccccccccccecse 21

LEGISLATIVE MATERIALS:

S. Rep. No. 256, 96th Cong.,

lst Sess. (1980) .cccccccce e*eeeeeses. 11,339,499

MISCELLANEOUS:

Black's Law Dictionary

(rev. 5th ed. 1979) ..ccececeee coccccces 17

Martin, Due Process and

t ational

Community: Political Asylum

and Beyond, 44 U. Pitt. L.

Rev. 165 (1983) ~.ccccce (ceneee#efeee#eee#ee#e#e#e#e#ee#eé 27

(vi)

Page(s)

United Nations High Commissioner

for Refugees, Handbook on

Procedures and Criteria for

Determining Refugee Status

a ee 29,30,31

(vii)

INTEREST OF AMICIi*

The American Civil Liberties Union

(ACLU) is a nationwide, non-partisan

organization of over 250,000 members

dedicated to protecting the fundamental

rights guaranteed by the Constitution and

laws of the United States. The American

Civil Liberties Union Fund of the

National Capital Area (ACLU-NCA) is an

affiliate of the ACLU and operates the

Political Asylum Project. Both the ACLU

and the ACLU-NCA have long been actively

involved in issues concerning immigration

and the rights of aliens. In particular,

the Political Asylum Project of the

ACLU-NCA is concerned with the

interpretation and implementation of the

* The parties have consented to the

filing of this brief, and their letters

of consent have been filed with the Clerk

of the Court under Rule 36.2 of the Rules

of this Court.

Refugee Act of 1980, owing to its

representation of aliens seeking

political asylum before administrative

and judicial bodies.

The Immigration and Re“ugee Rights

Project is a special project of the San

Francisco Lawyers' Committee for Urban

Affairs. The Lawyers' Committee is the

Northern California affiliate of the

National Lawyers' Committee for Civil

Rights Under Law. The Immigration and

Refugee Rights Project is involved

extensively in the recruitment and

training of attorneys willing to provide

pro bono representation to political

asylum applicants. The Project is

dedicated to ensuring through domestic

and international law that the rights of

persons seeking asylum are protected.

At issue in this case is the

determination of the sti 1dard which must

be satisfied by an alien seeking

political asylum in order to avoid

deportation. The standard adopted by

this Court is critical, not only to the

longstanding tradition in American

jurisprudence of protecting individual

liberties from abuse, but particularly to

aliens who face severe deprivations of

liberty both from deportation itself and

from what can and cften does occur to

them thereafter. Because the ACLU, the

Political Asylum Project, and the

Immigration and Refugee Rights Projec?

believe the issue here was correctly

decided by the United States Court of

Appeals for the Ninth Circuit, amici

submit this brief in suppo-t of

respondent and urge affirmance of the

judgment below.

EE

SUMMARY OF ARGUMENT

As the briefs of respondent and

other amici demonstrate, the intent of

the Refugee Act of 1980 was to conform

U.S. law to international norms by

adopting the internationally recognized

“well-founded fear" standard for refugee

and asylum determinations. In the ~- vent

this Court finds the legislative intent

regarding the meaning of the "well-

founded fear” standard to be unclear,

however, the analyses traditionally used

by the Court for discerning the

appropriate standard of proof in other

types of legal proceedings should be

applied.

One analysis entails an adjustment

of the standard of proof to shift the

risk of an erroneous decision away from

the party with disproportionately high

stakes in the outcome. A second

analysis involves a lowering of the

standard of proof to favor the party

facing substantial evidentiary

difficulties in proving future harm.

Employment of these approaches is

appropriate in the asylum context owing

to the severe impact that an erroneous

denial of asylum would have on the

applicant, the increased risk of a

wrongful denial caused by cultural,

language, and evidentiary barriers, and

the practical obstacles to establishing

future harm.

Consistent with its prior

analyses, the Court should interpret the

"well-founded fear" standard to reflect

these concerns, by requiring a showing

such as a "reasonable possibility" of

persecution, or a "good reason" to fear

persecution. Accordingly, the Court

should affirm the decision of the Court

of Appeals for the Ninth Circuit.

ARGUMENT

I. INTRODUCTION

The Refugee Act of 1980

establishes for the first time a

statutory asylum provision for

individuals who are unwilling or unable

to return to their countries of origin

because of "a well-founded fear cof

0

persecution on account of race, religion,

nationality, membership in a particular

social grovs, or political opinion." 8

U.S.C. § 1101(a) (42) (A) (1982). In

passing this Act, Congress incorporatec

the internationally-recognized definition

of refugee into United States law and

extended protection to persons who can

prove that their fear of persecution is

"well-founded." If this case, the Court

must decide what showing asylum

applicants are required to make in order

to satisfy this burden.

The Court Suggested an answer to

this question in Immigration ard

Naturalization Service v. Stevic, 467

U.S. 407 (1984). While the Court found

that applicants for withholding of

deportation under section 243(h) of the

Immigration and Nationality Act, 8 U.S.C.

§ 1101 et seg. (1982), had to show a

"Clear probability" of persecution, it

suggested that "a more moderate"

interpretation of the "well-founded fear"

standard used in section 208 asylum

proceedings would be:

"so long <s an objective

situation is established

by the evidence, it need

not be shown that the

situation will probably

result in persecution, but

it is enough that

persecution is a

easonable possibility."

467 U.S. at 424-25 (emphasis supplied).

The Government here rejects this

"moderate" interpretation and argues that

the "well-founded fear" standard for

asylum is synonymous with the "clear

probability" standard.

As demonstrated by the briefs of

respondents and other amici, the language

and legislative history of the Refugee

Act de not support the Government's

position. By codifying the "well-founded

fear" standard, Congress did not intend

that asylum applicants prove a clear

probability of persecution in order to

obtain asylum. Rather, it sought to

establish a more generous and protective

standard, consistent with international

norms. Even if the congressional intent

were not so explicit, however, and it

were necessary for this Court to

ascertain the asylum applicant's proper

standard of proof, the end result would

be the same and a more protective

standard would be required. The focus of

this brief is on the analysis the Court

should use in the event it finds the

legislative intent unclear.

The determination of the proper

standard of proof "is the kind of

question which has traditionally been

left to the judiciary to resolve."

Woodby v. Immigration and Naturalization

Service, 385 U.S. 276, 284 (1966). When

called upon to determine the proper

standard of proof, this Court has

repeatedly utilized an analytical

approach designed to minimize injury to

those interests that society deems to be

most important. That approach involves

both an assessment of the risk of error

in the fact-finding process and a

nll

- 10 -

determination of the potential injury to

each party from an incorrect

determination. In addition, the Court

has considered the difficulty of making a

particular showing in cases that present

significant evidentiary problems.

Applying these analytical processes,

courts have consistently adjusted the

standard of proof to favor the party

having the most at stake and the party

bearing substantial evidentiary burdens.

As this brief demonstrates, the

Court's traditional approach dictates an

interpretation of the "well-founded fear"

standard that reflects the grave

consequences of an erroneous denial of

1

asylun. Unlike the "clear probability"

1 In I.N.S. v. Stevic, the Court held

that the statutory language (that

provided for withholding of deportation

under section 243(h) if the applicant

"would be subject to persecution") and

the relevant legislative history

[Footnote continued on next page]

- ll =

test urged by the Government, an

interpretation such as "reasonable

possibility" of persecution or a "good"

or "valid reason" to fear persecution

takes into account the difficulty of

proving that an applicant's fear of

persecution is well-founded. The

decision of the Ninth Circuit is

consistent with this approach and

promotes our national commitment,

expressed in the Refugee Act, to

"“welcom[e] homeless refugees to our

shores." S. Rep. No. 256, 96th Cong.,

lst Sess. 1 (hereinafter "Senate Report

to the Refugee Act").

[Footnote continued from previous page]

compelled that applicants for withholding

show a "clear probability" of

persecution. The Court in Stevic

consequently was not called upon to

assess the risk of error and balance the

interests of the parties.

Il.

-12-

THE COURT'S TRADITIONAL APPROACH

TO DETERMINING THE PROPER STANDARD

OF PROOF DICTATES THAT "WELL~FOUNDED

FEAR" BE INTERPRETED TO REQUIRE A

"REASONABLE POSSIBILITY" OF

PERSECUTION OR A SIMILAR SHOWING

Use of a more protective standard

where especially significant interests

are in jecpardy is well-accepted. This

Court has repeatedly engaged in the type

of risk analysis described above when

setting the standard of proof absent

clear legislative direction. It has

employed this analysis over a broad span

of time, Schneid an v. United States,

320 U.S. 118 (1943); Santosky v. Kramer,

455 U.S. 745 (1982), and in a variety of

factual contexts, extending from

immigration, Woodby v. Immigration and

Naturalization Service, 385 U.S. 276

(1966), to civil commitment, Addington v.

Texas, 441 U.S. 418 (1979), to sovereign

water rights, Colorado v. New Mexico, 467

U.S.

310 (1984). In some of these cases

the important interests justifying

adjustment of the standard of proof have

been constitutional in dimension, e.gq.,

Addington, 441 U.S. 418 (1979), while in

others they have not, e.g., Nishikawa v.

Dulles, 356 U.S. 129 (1958). The same

type of analysis that the Court employed

in this line of cases is appropriate

here.

A. The Interpretation of the

"Well-Founded Fear" Standard

Should Reflect the Grave

Consequences of an Erroneous

enial o sylum

1. The Standard of Proof

Allocates the Risk of

Error Based on the

Interests Each Party Has

at Stake

Factfinding in any judicial or

administrative proceeding is imperfect.

Errors are inevitable. The standard of

proof allocates the risk of such errors

between the parties to the proceeding.

Justice Harlan explained this function in

- 14 =

his well-known concurrence to In re

Winship, 397 U.S. 358 (1970):

"In a lawsuit between two

parties, a factual error

can make a difference in

one of two ways. First,

it can result ina

judgment in favor of the

plaintift when the true

facts warrant a judgment

for the defendant. The

analogue in a criminal

case would be the

conviction of an innocent

man. On the other hana,

an erroneous factual

determination can result

in a judgment for the

defendant when the true

facts justify a judgment

in plaintiff's favor. The

criminal analogue would be

the acquittal of a guilty

man.

"The standard of

proof influences the

relative frequency of

these two types of

erroneous outcomes. If,

for example, the standard

of proof for a criminal

trial were a preponderance

of the evidence rather

than proof beyond a

reasonable doubt, there

would be a smaller risk of

factual errors that result

in freeing guilty persons,

but a far greater risk of

- 15 -

factual errors that result

in convicting the

innocent."

397 U.S. at 370-71 (Harlan, J.,

concurring).

How courts allocate the risk of

error in any particular context depends

on the impact that a factual error will

have on each of the parties and on

society as a whole. Choices of the

proper standard of proof "reflect a very

fundamental assessment of the comparative

social costs of erroneous factual

determinations." Id. at 370. As Justice

Rehnquist has noted, the Court has

apportioned the burden of proof "to

minimize error as to those interests

which we consider to be most important."

Santosky v. Kramer, 455 U.S. 745, 786

(1982) (Rehnquist, J., dissenting).

For example, in criminal cases

"society imposes almost the entire risk

~ 16 =

of error upon itself" because the

interests of a criminal defendant “are of

sucn magnitude that ... they have been

protected by standards of proof designed

to exclude as nearly as possible the

likelihood of an erroneous judgment."

Addington v. Texas, 441 U.S. 418, 423-24

(1979). by contrast, the "preponderanc2

of the evidence" standard employed in

most civil actions divides "the risk of

error in roughly equal fashion" between

the parties, id. at 423, reflecting the

judgment that a mistaken determination

against either is equally undesirable.

This Court has weighed the risks

at stake and mandated standards diverging

from those distributing the risk of error

equally where, as here, the consequences

of error would be particularly grievous

for one party. In Woodby, the Court

considered the significant harm to the

-17 -

individual of an erroneous deportation in

rejecting the government's argument that

the Immigration and Naturalization

Service need prove deportability only by

a "preponderance of the evidence." 385

U.S. at 284-85."

The Court emphasized:

"To be sure, a deportation

proceeding is not a

criminal prosecution. But

it does not

syllogistically follow

that a person may be

banished from this country

upon no higher degree of

proof than applies in a

negligence case. This

Court has not closed its

eyes to the drastic

For purposes of risk analysis, the

"preponderance of the evidence" standard

may be viewed as a functional equivalent

of the "clear probability" standard.

Both standards require proof that facts

are probable, i.e., more likely than not.

See I.N.S. v. Stevic, 467 U.S. at 424

(the question presented by the clear

probability standard is "whether it is

more likely than not that the alien would

be subject to persecution"); Black's Law

Dictionary (rev. 5th ed. 1979), at 1064

("preponderance of evidence” is defined

as "evidence which as a whole shows that

tne fact sought to be proved is more

probable than not").

deprivations that may

follow when a resident of

this country is compelled

by our Government to

forsake all the bonds

formed here and go to a

fcreign land where he

often has no contemporary

identification."

385 U.S. at 285 (citation omitted)

(emphasis added). The Court's

recognition that these stakes, which are

less substantial than those of asylum

applicants, mandated application of a

standard more protective than

' “prepor.derance of the evidence," was not

predicated on the existence of a

constitutional right. See Vance v.

Terrazas, 444 U.S. 252, 266-67 (1980).

Rather, it reflected the Court's

balancing of the public and private

interests which could be affected by an

erroneous finding of deportability.

s

- 19 -

Applying a similar analysis, the

Court in Addington v. Texas, 441 U.S. 418

(1979), rejected a standard of proot that

did not adequately protect an individual

from the risk of erroneous involuntary

commitment for mental illness. The Court

first analyzed the interests at stake in

such a proceeding. The State, the Court

found, had legitimate concerns in

providing care for the mentally ill and

in protecting the community. Id. at 426.

However, in the Court's view, the State

had no interest in erroneously confining

individuals who were neither mentally ill

nor dangerous:

"Since the preponderance

standard creates the risk

of increasing the number

of individuals erroneously

committed, it is at least

uncl*ar to what extent, if

any, the state's interests

are furthered by using a

preponderance standard in

- 20 -

such commitment

proceedings."

Id. at 426.

On the other hand, the

indivicgual's stakes were substantial. A

person involuntarily committed is

devrived of his liberty and indelibly

stigmatized as a mental patient. Id. at

425-26. Increasing the State's burden of

proof, the Court stated, "is one way to

impress the factfinder with the

importance of the decision and thereby

perhaps to reduce the chances that

inappropriate commitments will be

ordered." Id. at 427. In the Court's

judgment:

"The individual should not

be asked to share equally

with society the risk of

error when th: possible

injury to the individual

is significa itly greater

- 21-<=-

s a to

id. at 427 (emphasis supplied). Given

the risks involved, the preponderance

standard did not sufficiently protect the

individual. Consequently, the

Government's burden was increased.

Most recently, in Santosky v.

Kramer, 455 U.S. 745 (1982), this Court

overturned a New York statute that

empowered the State to terminate parental

rights upon the State's showing by a

"fair preponderance of the evidence" that

the child was "permanently neglected,"

New York Family Court Act § 622 (McKinney

1975 and Supp. 1981-82). Again applying

a risk analysis, the Court adapted the

factors outlined in Mathews v. Eldridge,

424 U.S. 319 (1976), for determining the

requisites of procedural due process in

order to ascertain the appropriate

Standard of proof. The Court in Mathews

- 22 =

had identified the relevant factors as

the individual's interests, the risk of

erroneous factfinding adverse to the

individual, and the Government's

interests. Id. at 335.

The Court first noted that the

interests of the natural parents in "the

care, custody, and management of their

child," 455 u.s. at 753, were "plain

beyond the need for multiple citation."

id. at 758, quoting ssiter v.

artment of Soci Services, 452 U.S.

18, 27 (1981). The Court emphasized that

a decision terminating parental rights is

"final and irrevocable," 455 U.s. at 759

(emphasis in original); once

extinguished, the parents’ interests can

never be revived.

Second, the Court considered

whether the preponderance standard

“fairly allocates the risk of an

- 23 -

erroneous factrinding" between the

parents and the State. The Court pointed

to numerous factors that "combine to

magnify the risk of erroneous

factfinding" to the parents. Id. at 762.

That risk was high, in the Court's view,

because of imprecise legal standards,

unusual discretion accorded the

decisionmaker to rule against the

parents, the possibility of cultural or

class bias, and unequal litigation

resources. Id. at 762-63. When

"(cjoupled with a 'fair preponderance of

the evidence’ standard," the Court found,

"these factors create a Significant

prospect of erroneous termination." Id.

at 764. The Court concluded that

increasing the burden of proof on the

State would diminish the risk of error.

Third, the Court identified two

governmental interests: promoting the

- 24 =-

welfare of the child and reducing the

costs of termination proceedings. Id. at

766. A standard of proof more stringent

than the preponderance standard, the

Court held, was consistent with the

child's welfare and would not impose

substantial fiscal or administrative

costs on the State. Id. at 766-67.

Given the disproportionate

interests at stake and the great danger

of factual errors against the parents,

the Court rejected the preponderance

standard specified in the statute.

Woodby, Addington, and Santosky

illustrate this Court's repeated use of a

protective standard of proof in order to

allocate the risk of an erroneous factual

determination away from the party with

disproportionately high stakes. The

Court has employed this analysis in a

long line of cases involving both

ne ee ee

A SC tN Ne iat

+ ee aed Seneca ae =

- 25 -

constitutional and non-constitutional

3 In the event chat the Court

interests.

considers congressional intent on the

meaning of "well-founded fear" to be

unclear, this analysis should guide the

Court in determining the proper showing

by applicants for refugee status.

2. In an Asylum Adjudication,

the Applicant's Stakes

Outweigh the Government's,

and the Risk of an

Erroneous Decision Falls

Heavily on the Applicant

Application of risk analysis to

asylum proceedings can yield but one

result: a standard of proof such as

’ See, @.g., Colorado v. New Mexico, 467

U.S. 310, 315-16 (1984); Herman &

MacLean v. Huddleston, 459 U.S. 375, 387-

90 (1983); e cooper v.

Mitche rothers' Santa Ana heater, 454

U.S. 90, 92-93 (1981); Fedorenko v.

United States, 449 U.S. 490, 505 (1981);

Mullaney v. Wilbur, 421 U.S. 684, 700-02

(1975); Rosenbloom v. Metromedia, Inc.,

403 U.S. 29, 51-52 (1971); Speiser v.

Randall, 357 U.S. 513, 525-26 (1958) ;

Schneiderman V: United States, 320 U.S.

118, 139, 158-59 (1943).

- 26 -

reasonable possibility, a standard more

protective of asylum applicants than that

urged by the Government. The stakes of

the individual applicant are substantial,

the sources of potential error adverse to

her are considerable, and the

government's interests are comparatively

insignificant. The approach employed by

the Ninth Circuit below properly "serves

to allocate the risk of error between the

litigants and to indicate the relative

importance attached to the ultimate

decision." Addington, 441 U.S. at 423.

Ge ndividual'’s Stakes

An asylum applicant's stakes ina

fair and accurate adjudication of her

Claim are extremely compelling. The

Court has recognized that deportation may

involve a "loss... of all that makes

life worth living," Ng Fung Ho vy. White,

259 U.S. 276, 284 (1922), and impose

9 9 lglg ay Oe alt ttl, Cat Ne Wh de RS

kN Etter ets. «

- 27 <-

"drastic deprivations," Woodby, 385 U.S.

at 285. A mistaken denial of asylum is

even more devastating. It can lead to

the loss of life itself, to torture, to

imprisonment, to discrimination, or to

numerous other forms of persecution.

Decisions granting or denying of asylum

are unique. As one commentator has

noted: "No other adjudication in our

legal system potentially subjects the

individual to torture or summary

execution." Martin, "Due Process and

Membership in the National Community:

Political Asylum and Beyond," 44 U.

Pitt. L. Rev. 165, 190 (1983).

Moreover, an adverse asylum

determination, like the termination of

parental rights in Santosky, is "final

and irrevocable" if affirmed on appeal.

Once delivered to her persecutors, the

applicant has little hope of escaping to

- 28 =-

renew the quest for asylum. The gravity

of the applicant's interests thus weighs

heavily against applying any standard

which would have the applicant and the

Government "share the risk of error in

roughly equal fashion." dington,

441 U.S. at 423.

b. The Risk of Error

Applicants for asylum are an

especially vulnerable class of litigants.

To begin with, the applicant bears the

burden of proving to the trier-of-fact

that her fear of persecution is indeed

well-founded. Ho: ever "well-founded

fear" is construed, the difficulties of

meeting this burden and of proving from

afar the future actions of a foreign

Government or other potential persecutors

are formidable. See Section II.B.1.,

infra.

- 29 -

This burden is compounded by the

additional practical difficulties that an

applicant faces in documenting her case.

Individuals fleeing persecution are often

lucky to escape with their lives. As

stated by the United Nations High

Commissioner for Refugees: "In most

cases a person fleeing from nersecution

will have arrived with the barest

necessities and very frequently even

without personal documents ... ."

United Nations High Commissioner for

Refugees, Handbook on Procedures and

Criteria for Determining Refugee Status

¥ 196 (Geneva 1979) (hereinafter "UNHCR

Handbook"). She has no power to subpoena

or depose her alleged persecutors; even

if she did, "[p]Jersecutors are hardly

likely to provide their victims with

affidavits attesting to their acts of

- 30 -

persecution." Bolanos-Hernandez v.

I.N.S., 767 F.2d 1277, 1285 (9th Cir.

i984). As a result, many of the

applicant's statements simply may not be

susceptible to proof. Often the only

evicence she can offer is her personal

testimony.

In addition to these problems,

many individuals must pursue their asylum

Claims without benefit of counsel.

Cultural, language, and other barriers

further increase’ the risk of a wrongful

denial. The United Nations High

Commissioner for Refugees has noted:

"It should be recalled

that an applicant for

refugee status is normally

in a particularly

vulnerable

situation. He finds

himself in an alien

environment and may

experience serious

difficulties, technical

and psychological, in

submitting his case to the

authorities of a foreign

th lt A IG CIN at Ds ty Cle Ni taht,

on it 4 tai ALAM Py

- 31 -

country, often ina

language not his own.

"A person who, because of

his experiences, was in

fear of the authorities in

his own country may still

feel apprehensive

vis-a-vis any authority.

He may therefore be afraid

to speak freely and give a

full and accurate account

of his case."

UNHCR Handbook {4 igo,

198.

By contrast, the Government can

rely upon the full resources of the

I.N.S. at nearly every stage of the

proceedings. As this Court found in

Santosky v. Kramer, such unequal

litigation resources may amplify the risk

of errors against the weaker party.

455 U.S. at 763.

In sum, the deck is stacked

against the applicant. The chance of an

erroneous grant of asylum is minimal,

- 32 -

whereas the chance of an erroneous denial

is substantial.

c. The Government's

interests

The Government has several :

interests in any asylum proceeding:

fulfilling our ‘international obligation

to shelter refugees from persecution;

ensuring accurate asylum determinations;

and maintaining the efficiency of the

administrative process by minimizing the

time and expense of asylum proceedings.

The Sovernment's interests need

not conflict with those of the asylum

applicant. Just as the Government had no

interest in an erroneous involuntary

commitment in Addington, it has no

interest in erroneously denying asylum to

a deserving applicant and returning her

to face persecution. To the contrary,

the Refugee Act of 1980 embodies a

national commitment to pretect refugees.

- 33-

See Senate Report to the Refugee Act, at

1. Since the clear probability standard

advocated by the Government would likely

increase the erroneous denials of asylum,

application of that standard would

frustrate the Government's primary

interest to "respond to the urgent needs

of persons subject to persecution in

their homelands." Refugee Act of 1980,

§ 10l(a).

Furthermore, a standard less than

clear probability will not impose greater

fiscal and administrative burdens on the

Government. Indeed, the Government has

made no showing that the more protective

standards now applied in several circuits

have increased its burdens. The

procedures for determining asylum claims

re already in place and need not be

aitered. All that changes is how the

fact-finder evaluates the evidence

- 34 -

presented. *

As this Court recognized in

Santosky, modifying the standard of proof

"reduce[(s] factual error without imposing

substantial fiscal burdens upon the

State." 455 U.S. at 767 (citations

omitted).

* See In the Matter of G ——s

A26306224 (decided December 17, 1985),

attached as Appendix A. A review of this

decision of an immigration judge reveals

the a of the Government's argument

that applying two standards to one set of

facts is administratively cumbersome.

The decision demonstrates that

immigration judges are able to

differentiate between the two standards

and apply each standard separately to the

facts presented. As in civil cases which

allege several alternative causes of

action, or criminal prosecutions which

present multiple charges (some of which

involve affirmative defenses), the

structure of the hearing itself is not

altered by the requirement that the

finder of fact apply different legal

tests simultaneously. Thus, there is no

need that the asylum hearing be separate

from the hearing in which withholding of

deportation relief is considered.

~ 35 «-

3. The Balance of Interests

and the Risk of Error in an

Asylum Proceeding Dictate

a Showing Such as Reasonable

Possibility

In sum, applying the same analysis

this Court has employed to allocate the

burden of proof in other contexts --

assessing the interests of the applicant

and the Government as well as the risk of

error in the particular proceeding --

compels the conclusion that the clear

probability standard is not appropriate

in asylum proceedings. The interests of

asylum applicants are momentous. By

contrast, an error adverse to the

Government would not seriously impair its

interests. Given the disproportionate

interests at stake, and the high risk of

error, it would be completely

inappropriate to distribute the risk

evenly between the Government and the

applicant, or to tilt the scale toward

- 36 -

the Government as the clear probability

standazd does.

A more protective standard such as

reasonable possibility would better

reconcile the interests of the parties.

It would better reflect the social costs

of an erroneous decision. And it would

better accommodate the values that

Congress and our society as a whole have

identified as important. Cunsistent with

its prior decisions, this Court should

mandate such a standard in asy+um

proceedings.

- 37 «-

B. The Interpretation of the

"Well-Founded Fear" Standard

Should Reflect the

Difficulty Asylum Applicants

Face in Establishing the

Possibility of Persecution

in the Future

1. This Court and Other

Courts Frequently Have

Relaxed the Evidentiary

Burden on a Party Who

Must Establish Future

Harm _

Future events are less susceptible

to proof than those past or present,

particularly where a litigant is called

upon to predict the future behavior of

other persons. The inquiry frequently

devolves into a subjective judgment by

the trier-of-fact. Consequently, a party

bearing the burden of proving that she

faces serious future harm has a truly

difficult task.

This Court and other courts have

recognized this burden and have relaxed

the standard of proof where

constitutional or statutory benefits or

protections depend upon showing a risk of

future harm. The Court in Addington v.

Texas, for example, considered the

State's burden of showing mental illness

and future dangerousness in civil

commitment proceedings. While, as noted

above, the balance of interests at stake

in that case precluded imposition of a

preponderance standard (or less) on the

State, tne Court also found that the

difficulties of proof made a reasonable

doubt standard wholly impractical.

441 U.S. at 429-30, 432. The Court

therefore adopted the intermediate

standard of "clear and convincing

evidence" to accommodate these

evidentiary problems.

The Court in Addington noted that

a commitment proceeding differed from a

criminal prosecution or a juvenile

- 39 -

delinquency hearing, where "the basic

issue is a straightforward factual

question -- did the accused commit the

act alleged?" Id. at 429. In contrast,

facts in a commitment proceeding

"represent only the beginning of the

inguiry." Id. Whether an individual

needs confinement rests on a subjective

assessment of the meaning of those facts

by expert psychiatrists and |

psychologists. As the Court noted:

"(tjhe subtleties and nuances of

psychiatric diagnosis render certainties

virtually beyond reach in most

Situations." Id. at 430. The standard

of proof in a commitment proceeding, the

Court held, had to reflect these

evidentiary obstacles to proving future ;

ing

behavior.»

In Santosky v. Kramer, this Court

rejected use of the reasonable doubt

[Footnote continued on next page]

- 40 =

In Ethyl Corporation v.

Environmental Protection Agency, 541 F.2d

1 (D.C. Cir.), cert. denied, 426 U.S. 941

(1976), the Court of Appeals found it

necessary to adjust the standard of proof

to allow for the difficulties of

predicting future harm. The Court held

that the EPA could regulate certain

products under a statutory provision

covering goods that "will endanger the

public health or welfare," even though

scientific data revealed only a

"significant risk" of harm. Id. at 20.

The Court rejected the petitioner's

contention that the Act required the EPA

(Footnote continued from previous page]

standard of proof in favor of the clear

and convincing evidence standard for

parental rights termination proceedings.

The Court in Santosky held that it was

"difficult to prove to a level of

absolute certainty" a "lack of parental

motive [and] absence of affection," and

therefore the Court found it necessary to

lower the standard of proof. 455 U.S.

at 769.

to establish a probability of injury.

Svch an overly restrictive standard was

unrealistic, given that "[q]juestions

involving the environment are

particularly prone to uncertainty," and

that "speculation, conflicts in evidence,

and theoretical extrapolation typify

(regulators'] every action." Id. at 24.

The Court held:

"(Tjhe public health may

properly be found

endangered both by a

lesser risk of a greater

harm and by a greater risk

of a lesser harm. Danger

depends upon the relation

between the risk and harm

presented by each case,

and cannot legitimately be

pegged to 'probable' harn,

regardless of whether that

harm be great or

small... . [T]hese

concepts ‘necessarily must

apply in a determination

of whether any relief

should be given in cases

of this kind in which

- 42 -

proof with certainty is

impossible.'"

Id. at 18 (citation omitted). Ignoring

these evidentiary difficulties would have

exposed the public to dangers the statute

was designed to prevent.

In Reserve Mining Company v.

Environmental Protection Agency, 514 F.2d

492 (8th Cir. 1975) (en banc), the Eighth

Circuit employed a similar analysis in

interpreting a phrase from the Federal

Water Pollution Control Act permitting

injunctive relief against pollution

hazards which "endanger . .. the health

or welfare of persons." Id. at 527. The

court construed “endanger" to require a

showing of only a "reasonable" or

"potential" danger. Id. at 528-29. The

court held that since the likelihood of

harm to the public health could rarely be

Shown by more than "acceptable but

unproved medical theory," and since the

- 43 -

harm to be avoided -- cancer -- was

particularly great, a "reasonable medical

concern" justified an injunction under

the statute. Id. at 529.

In Halperin v. Central

Intelligence Agency, 629 F.2d 144 (D.C.

Cir. 1980), the D.c. Circuit recognized

that future harm is all the more

difficult to predict when it involves the

secret actions of a foreign government.

In upholding the Government's broad

interpretation of one of the national

security exemptions to the Freedom of

Information Act, which provides for

non-production of documents upon a

showing that documents "can reasonably be

expected to lead to unauthorized

disclosure of intelligence sources and

methods," the court explained:

" . + »« any affidavit or

other agency statement of

threatened harm to

national security will

<

- 44 -

specu ve to

some extent, in the sense

that it describes a

potential future harm

rather than an actual past

harm... -

In the present case, a

stricter standard [than

reasonable expectation)

satis Gee eo”

Id. at 149 (emphasis added).

Given the covert nature of the

harm at issue, the Halperin court also

held that it would be unrealistic to ask

the Government to prove past instances of

concrete harm in order to show a threat

of future harm. Requiring a showing of

past harm would undermine the very

purpose of the statutory exemption, which

was "to protect intelligence sources

before they are compromised and harmed,

not after." Id.

Tn each of these cases, the court

acknowledged the practical obstacles to

- 45 -

establishing a threat of future harm, and

reduced the evidentiary burden of the

party charged with that obligation. The

Same approach should apply to asylum

vroceedings and yield the same result.

2. The Difficulties

Applicants for Asylum

Face in Establishing the

Prospect of Future

Persecution Warrants a

Showing Such as

Reasonabie Possibility

Applicants for asylum face the

truly onerous burden of proving that they

have good reason to fear future

persecution. Already saddled with the

disabilities noted above -- unequal

resources for litigation, inaccessibility

of evidence, and cultural barriers --

they nonetheless must predict the actions

of a foreign government, or individuals

whom the foreign government is unwilling

or unable to control. The secrecy that

often veils these actions in repressive

- 46 -

regimes renders this task all the more

difficult.

A court deciding whether an

individual is mentally ill and dangerous

at least can hear the testimony of those

who have examined the individual. An

agency making scientific judgments at

least has amassed the raw data that it is

called upon to interpret. An individual

seeking asylum, however, frequently can

present nothing comparable -- no

testimony by representatives of the

foreign government, no documents

identifying her as a victim of future

persecution. See Cardoza~-Fonseca v.

I.N.S., 767 F.2d 1448, 1453 (9th Cir.

1985), cert. granted, 106 S. Ct. 1181

(1986); Carvajal-Munoz v. I.N.S., 743

F.2d 562, 574 (7th Cir. 1984).°

6 the decision attached as Appendix A

vividly demonstrates the evidentiary

[Footnote continued on next page]

- 47 -

Under these circumstances, to

require a showing that future persecution

is clearly probable is to impose an

unrealistic and generally unattainable

burden. It will undoubtedly remit to the

arms of their oppressors individuals

[Footnote continued from previous page]

difficulties encounte:-ed by an asylum

applicant in proving his case, and the

significantly greater burden imposed by

the "clear probability" standard in

comparison with the more generous "well-

founded fear" standard. In the case

attached, the immigration judge found the

applicant's detailed testimony regarding

his abduction, interrogation, torture,

and subsequent surveillance by the

Salvadoran police to be consistent and

truthful. Applying the "well-founded

fear" of persecution standard, the judge

ranted the applicant asylum. However,

in evaluating his claim for withholding

of deportation under the stricter "clear

probability" standard, the judge found

that he had not satisfied his burden of

demonstrating that future persecution

upon return to El Salvador was "more

likely than not." This decision

illustrates that proving the likelihood

of future persecution is nearly

impossible in most situations, and

conveys a sense of the substantial

oe faced by an applicant who cannot

satisfy the onerous "clear probability"

standard.

- 48 =

whose fear of persecution is indeed

well-founded, but who cannot demonstrate

their likely fate with the requisite

certainty. That is not what Congress

intended.

- 49 =-

III. CONCLUSION

The Refugee Act of 1980

rededicated this nation to "welcom[fe]

homeless refugees to our shore." Senate

Report to the Refugee Act, at 1. The

Clear probability standard urged by the

Government for asylum determinations will

deny asylum to deserving applicants and

will condemn to persecution innocent

people who are bona fide refugees under

our law. It is, in sum, a position

inconsistent with our international

obligations and unworthy of our

Government.

For the reasons stated above, the

- 50 =

decision of the Court of Appeals should

be affirmed.

Dated:

July 14,

Respectfully submitted,

Carol Leslie Wolchok

The Political Asylum

Protect of the American

Civil Liberties Union

Fund of the National

Capital Area

122 Maryland Avenue, N.E.

Washington, D.C. 20002

(202) 543-4651

Burt Neuborne

Lucas Guttentag

Jack Novik

The American Civil

Liberties Union

132 West 43rd Street

New York, N.Y. 10036

(212) 944-9800

Robert N. Weiner

Shelley R. Slade

Eric R. Biel

Arnold & Porter

1200 New Hampshire

Avenue, N.W.

Washington, D.C. 20036

(202) 872-6700

Attorneys for Amici Curiae

1986

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UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION REVIEW

UNITED STATES IMMIGRATION COURT

Phoenix, Arizona

File: A 26 306 224 December 17, 1985

In the Matter of:

G. IN DEPORTATION

PROCEEDINGS

Respondent

CHARGE: SECTION 241(a) (2), Immigration

and Nationality Act - Entered without

inspection.

APPLICATIONS: Political asylum,

withholding of deportation, in the

alternative voluntary departure.

ON BEHALF OF ON BEHALF OF

RESPONDENT: SERVICE:

Susan R. Joseph Ragusa,

Giersbach, Esquire Esquire

ORAL DECISION OF THE IMMIGRATION JUDGE

This is a deportation proceeding

instituted by the Immigration and

Naturalization Service against the above-

named respondent pursuant to the

Az

authority contained in Section 242 of the

Immigration and Nationality Act. The

respondent is a married male alien, a

citizen and native of El Salvador, who

entered the United States near Lukeville,

Arizona on or about April 18, 1985.

On or about April 19, 1985 he was

served with an Order to Show Cause

charging that he was subject to

deportation pursuant to Section 241(a) (2)

of the Immigration and Nationality Act in

that he entered the United States without

being inspected.

On or about July 22, 1985

respondent admitted the truth of the

factual allegations contained in the

Order to Show Cause, conceded

deportability on the charge set forth and

declined to designate a country of

deportation and consequently El Salvador

was directed.

A3

Based upon the respondent's

edmissions, I conclude that he is

deportable as charged in the Order to

Show Cause.

Respondent has applied for relief

from deportation in the form of political

asylum, withholding of deportation and,

in the alternative, voluntary departure.

In order to qualify for political

asylum, there must pe a showing that the

respondent meets the statutory definition

of refugee in Section 101(a) (42) (A) of

the Act, that is, a person who is unable

to unwilling to return to and is unable

or unwilling to avail him or herself of

protection of that country because of

persecution or a well-founded fear of

persecution on account of race, religion,

nstionality, membership in a particular

social group or political opinion.

A4

The burden is upon the respondent

to show that he will be persecuted or to

show a well-founded fear of persecution

in El Salvador on account of the above-

mentioned factors.

Respondent must demonstrate his

well-founded fear of persecution is more

than conclusionary statements.

Respondent submitted his asylum

application on Form I-589. This

application was referred to the

Department of State for an advisory

opinion. The Department advised that the

respoiudent had not established a well-

founded fear of persecution in El

Salvador.

Respondent's asylum application

must be considered simultaneously as an

application for withholding of

deportation to El Salvador.

Section 243(h) of the Act provides that

A5

an alien cannot be deported to a country

if such alien's life or freedom would be

threatened in such country on account of

race, religion, nationality, membership

in a particular social group or political

Opinion. To qualify for withholding a

respondent must prove a clear probability

that his life or freedom would be

threatened in El Salvador on account of

the above-mentioned factors.

The Ninth Circuit Court of Appeals

law is binding upon this Court in this

particular jurisdiction and some of the

cases that have been instructive on the

burden in establishing a well-founded

fear of persecution include

Bolanos-Hernandez v. INS, 749 F.2d 1316.

The 9th Circuit held that the well-

founded fear test is a more liberal test

than the clear probability test under

Section 243(h) of the Act. However, the

A6

Court indicated that mere assertions of

fears and generalized conditions are

insufficient to establish the well-

founded fear of persecution. However, an

evaluation of whether an alien has a

well-founded fear includes consideration

of the alien's state of mind as well as

general conditions in the country and the

experience of others. The Court has held

that there is no requirement to

corroborate specific threats of

persecution. The Court noted in this

regard that it is difficult for aliens

fleeing from persecution to corroborate

testimony through documents and

witnesses. Respondent must establish

more than threats to establish a well-

founded fear of persecution. Respondent

must be able to establish that there is

reason to take the threats seriously and

that those making the threats have the

A7

ability and will to carry out those

threats. See also Argqueta v. INS,

759 F.2d 1396 and Cardoza-Fonseca v. INS.

The facts in this case reflect the

following: Respondent is a 28 year old

married male alien, citizen and native of

El Salvador. His wife preceded him in

entering the United States in jan-‘ary of

1985. He has three children who are

currently residing in his hometown in El

Salvador with his mother-in-law.

Respondent was employed for approximately

four years prior to his arrival in the

United States as a traveling shoe

salesman. He bought and resold shoes and

worked the towns surrounding his hometown

of Sensuntepeque.

Initially, it is appropriate to

comment on respondent's credibility in

this case since, with respect to specific

factors, his is the only testimony

A8&

concerning his claims for asyli: and

withholding. It is my observation that

respondent testified in a straightforward

and honest manner, his demeanor

demonstrated to me that he was telling

the truth. In my view his testimony is

internally consistent. He answered with

great specificity concerning the events

surrounding his detention, beatings and

interrogation. Upon being questions on

cross-examination he answered in a quick

and honest manner, admitting some things

that may have been to his detriment

without hesitation. And while there

appears to be minor inconsistencies

between respondent's application for

political asylum and his testimony, I

credit his oral testimony particularly

with respect to item number 29 in the

application for asylum which indicates

AQ

that he had permission to leave the

country.

Respondent testified that in

December of 1984, the date he does not

recall specifically, but it was a

Saturday, two detectives came to his

house at approximately 6:30 p.m. They

asked for his name and showed him an

identification card which had some

initials on it and had the photograph of

the detective on it. The detectives

directed respondent to accompany him.

They were dressed as civilians but

respondent testified that they were

armed. Respondent indicated he was taken

to a car which he identified as a police

car. He identified it as a police car

from having observed it on prior

occasions at the police station. ‘Two

additional men were waiting for

respondent in the automobile. They

a

4

- :

7

A10

directed him to get into the car and the

three sat with him. Two blocks down the

street from his house the detectives

directed respondent to lay on the floor.

Respondent. objected and as a result he

was pushed onto the flowr. The

detectives handcuffed him with his hands

behind him and as they got near the

station put a blindfold on respondent.

Respondent specifically testified that it

was a green handkerchief. Respondent was

taken to a smali room at police

headquarters where he was placed on a

chair. Respondent described the room in

some detail on cross-examination. He

described the room has have linoleum tile

floors, no windows, and a bare lightbulb

in the ceiling. The detectives next took

respondent's billfold from his pocket,

lifted his blindfold somewhat and

indicatei he had quite a bit of money.

All

They began to question respondent. They

asked who his guerrilla leader was, what

his guerriila nickname was, and how many

confrontations he had been at.

Respondent testified that he was

mistreated while undergoing

interrogation. This mistreatment took

the form cf being hit with closed fists

in both the stomach and head and being

required to do deep knee bends while

blindfolded and handcuffed, virtually

continuously from the time he was brought

into the police station on Saturday

evening until eleven P.M. on Monday

evening. While doing deep knee bends the

respondent was hit repeatedly and asked

the questions alluded to above. He was

told to do the deep knee bends until he

told the truth. He indicated that from

exhaustion he fell on the floor but was

picked up by the hair or kicked by the

Al2

police in order to continue doing the

deep knee bends. Respondent testified

that. he denied knowing anything

concerning what the police were asking

him. During the detention until eleven

P.M. respondent was not permitted to

sleep, eat or use the bathroom. At

eleven P.M. on Monday night, respondent

was taken from the detention location

where he was interrogated and beaten to a

nearby police station. Respondent

testified he had no idea he was going to

the police station, but rather, his

interrogators threatened to kill him. In

this regard, a pistol was placed on his

neck, he was picked up by the arms, and

taken to a car. Respondent testified he

was picked up in this manner because he

could no longer stand. Upon beiig

transferred to the automobile, respondent

testified that he tried to get away. He

Al3

said one of the detectives threw him into

the car and at this point he hit his

head. Upon arriving at the police

station, respondent was asked if he

wanted to go to the bathroom by a

policeman. This policeman was not one of

the four individuals who had originally

picked the respondent up and interrogated

him. At this point, respondent was taken

to the bathroom and was told to take his

blindfold off. Respondent spent from

approximately eleven P.M. on Monday night

until tue next Saturday in custody at the

police station. He testified he was

still handcuffed and blindfolded but at

tiiis point his hands were handcuffed in

front of him rather than behind him.

Respondent testified that the detectives

who had originally arrested him came to

the police station and continued to ask

him the same questions he had been asked

Al4

earlier concerning guerrilla activities.

He was repeatedly asked to sign papers.

Respondent testified he does not know

what those papers said nor did he ask

what they said. He did not know what

they said because they were covered by a

sheet of white paper. Respondent

testified he signed approximately five

papers and each time he signed something

the interrogators laughed. Resporident

testified that it was not until Tuesday

afternoon that he was able to walk

holding on to things because of the

treatment he had received earlier. His

blindfold was taken off for the first

time on Wednesday night. Respondent

testified that it was taken off in the

evening because of the police concern

that his eyes might be damaged if the

blindfold was taken off during the day.

Respondent testified he was released at

Al15

approximately four P.M. the following

Saturday. He testified that a lieutenant

told him that he should not get involved

in those things because it was dangerous.

Respondent testified that he believed he

was told this because the police were

suspicious that he was involved in

guerrilla activities. At no time was

respondent either told why he was

arrested nor why he was released. While

in the police station, the respondent was

fed. He slept in a hallway with a police

guard on a cement floor. Upon

respondent's release his wrists were raw

from the handcuffs.

Upon respondent's release he went

to his house where his wife indicated

that his family had done everything

possible to get him released by the

police and authcrities said that they had

no knowledge of where respondent was

Al6

located. Approximately 15 days after he

was released respondent testified he

began to observe a policeman in plain

clothes watching the respondent.

Respondent testified he knew this

policeman's face and had been told by his

brother that this individual was a

plainclothes policeman. Respondent

testified that he saw this individual

approximately three times per week

watching him at the private house where

only his family bought water and at a bus

stop. Respondent testified he rarely saw

this individual prior to his arrest in

December of 1984.

Respondent testified further that

after his arrest he began to alter his

behavior. In this regard he testified

that he began sleeping in different

places. These places included his

a

Al7

mother's house, his sister's house, and

his mother-in-law's house.

In early January, 1985 while on a

selling expedition in San Luis Potosi,

approximately 70 kilometers from his

home, respondent was stopped by

guerrillas along with other individuals

at a roadblock. Respondent testified

that all of the goods belonging to the

travelers were taken by the guerrillas.

The guerrillas indicated that they had

broadcast a warning on their clandestine

radio station that there would be a

stoppage of all transportation on that

particular day. Respondent testified

that he was not threatened in any manner

by the guerrillas.

Respondent departed from El

Salvador on April 8, 1985. He testified

that ..2 did not obtain a passport to

leave the country. Concerning permission

Als

to exit the country, respondent testified

that the bus driver of the bus he was

traveling in would take a list of the

passengers to the authorities and then

the bus would be permitted to travel from

El Salvador into Guatemala. Respondent

testified that he crossed a river to go

from Guatemala to Mexico. Respondent

testified that he did not ask for

political asylum in either Guatemala or

Mexico nor did he request political

asylum from the American Consulate.

Respondent testified he did not learn of

political asylum until his first hearing

before Immigration Judge Nail on July 16,

1985.

One of the crucial issues in my

view in this case concerns the amount of

time between respondent's initial arrest

in December of 1984 and the period of

time until his departure on April 8 of

Al1g9

1985. The Government would argue that

respondent's delay in departing should

lead to an inference that respondent did

not fear persecution. The Government

would further contend that respondent's

motivation in leaving El Salvador was

primarily economic rather than fear of

political persecution. Respondent's. wife

had already traveled to the United States

primarily for economic reasons after

respondent's shoe business, which

respondent's wife worked, failed as a

result of the guerrilla seizure of his

goods.

While economics may indeed have

been a factor in respondent's decision to

leave El Salvador and come to the United

States, in my view the evidence does not

mandate a finding that that was the only

or primary reason for respondent's

departure. As I have noted before, I

A20

credit respondent's testimony in this

case. In December of 1984 he was

arrested, accused of guerrilla activities

ari severely mistreated in order to get

him to confess to engaging in guerrilla

activities. While respondent's

mistreatment in a severe manner ceased

after he was zemanded to the custody of

the police, respondent was further

interrogated concerning guerrilla

activity, was maintained in police

custody and handcuffs and was directed to

sign papers. Now we have no idea what

those papers were. Res»nondent has

testified that he could not see what was

written on those papers. However, I

think a reasonable inference can be drawn

that whatever was on those papers was not

something that was of benefit to

respondent.

A21

Had the matter ended at this

point, particularly in view of no further

interrogations or arrests by respondent,

I think a good argument could be made

that there was no reason to fear anything

further on the part of the police.

However, the matter did not end at this

point. In this regard, respondent has

credibly testified that he was being

observed by a policeman approximately

three times per week in varicus places.

Respondent testified that prior to his

arrest that he had not cbserved this

individual but on rare occasion. in view

of respondent's arrest, interrogation and

beatings, I think a reasonable inference

can be drawn that he was continually

observed by the police who initially

arrested him.

Based upon the above, I conclude

that respondent has established a well-

POET ARO IINS + sg ye oar - Ty

Te

Te . 7

A22

founded fear of persecution based upon

what the government perceived to be his

activities on behalf of the guerrillas.

Whether respondent in fact engaged in

guecrilla activities or not is

immaterial. It appears that the

government believed he was so engaged.

With respect to respondent's

application for withholding of

deportation, the burden there is much

greater. Both the 9th Circuit and the

Board of Immigration Appeals require that

fear of persecution be established by a

clear probability, that is, that it be

more likely than not that one be

persecuted upon their return to El

Salvadcr as a result of race, religion,

nationality, membership in a particular

social group or political opinion. I

cannot say that respondent has satisfied

that particular burden. I believe that

A23

that is a much higher standard of proof

and I find, based upon the above factors,

that respondent did not satisfy that

burden of proof.

With respect to respondent's

application for voluntary departure,

should the Board of Immigration Appeals

reverse my decision on the application

for political asylum, I find that

respondent is eligible for voluntary

departure in that he established himself

to be a person of good moral character

ana is willing to obey any orders of this

Court and has sufficient funds with which

to pay for his trip to El Salvador.

ORDER: IT IS ORDERED that

respondent's application for political

asylum be granted and that his

application for withholding of

deportation be denied, and that his

application for voluntary departure

A24

should be granted in whatever amount of

time the Board of Immigration Appeals

should direct.

S/JOHN J. McCARRICK

Immigration Judge