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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1987
- **Citation:** 480 U.S. 421

## Text

., Supreme Court, U.S.
\ a pIbeD
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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 yh svt Sook & oe
witches ae Ra

ite

es ass

"

Al

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

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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

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should be granted in whatever amount of

time the Board of Immigration Appeals

should direct.

S/JOHN J. McCARRICK
Immigration Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0415%3A11. Public record. Not legal advice.