United States v. 2005-03-10 | 02-73352 | RECINOS DE LEON VGONZALES | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 ERNESTO ADOLFO RECINOS DE LEON,
Petitioner, No. 02-73352
v. Agency No.
 A72-527-227ALBERTO GONZALES,* Attorney
General, OPINION
Respondent. 
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 30, 2004**
San Francisco, California
Filed March 11, 2005
Before: Betty B. Fletcher, Edward Leavy, and
Marsha S. Berzon, Circuit Judges.
Opinion by Judge Berzon
*Alberto Gonzales is substituted for his predecessor, John Ashcroft, as
Attorney General of the United States, pursuant to Fed. R. App. P.
43(c)(2).
**This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 31(c), 34(a)(2).
3189

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COUNSEL
Andrew Knapp, Law Offices of Clair Cifuentes, Los Angeles,
California, for the petitioner.
William C. Erb, Jr., Attorney, Office of Immigration Litiga-
tion, Civil Division, United States Department of Justice,
Washington, D.C., for the respondent.
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OPINION
BERZON, Circuit Judge:
This case presents for review a literally incomprehensible
opinion by an immigration judge (IJ), denying petitioner’s
applications for asylum and withholding of removal.1 The
Board of Immigration Appeals (BIA), pursuant to the
“streamlining” regulation, 8 C.F.R. § 1003.1(e)(4) (2004),2
affirmed without opinion. When the agency’s only explana-
tion of its final action is incoherent, we may not substantively
review it without violating basic principles of judicial review.3
We therefore grant the petition and remand the case to the
BIA.
I
Petitioner Ernesto Adolfo Recinos de Leon (Recinos) is a
Guatemalan national who fled that country and arrived in the
United States in 1991. In 1997, Recinos filed an application
for asylum. Shortly thereafter, the former Immigration and
Naturalization Service (INS)4 commenced removal proceed-
ings against him.
1Petitioner’s brief to us also asks for relief under the Convention
Against Torture (CAT). His brief before the Board of Immigration
Appeals, however, sought review only of the denial of asylum and with-
holding of removal. As the CAT claim was not administratively
exhausted, we may not consider it. Garcia-Martinez v. Ashcroft, 371 F.3d
1066, 1079 n.5 (9th Cir. 2004)
2The regulation was formerly codified at 8 C.F.R. § 3.1. As the two ver-
sions are materially identical, we refer to the version in place as the case
comes to us.
3The IJ’s opinion is appended to this opinion.
4The INS was abolished March 1, 2003, and its functions transferred to
the Department of Homeland Security. See Homeland Security Act of
2002, Pub. L. 107-296, § 471, 116 Stat. 2135, 2204-05; 6 U.S.C.A. § 542
note (West 2004). For convenience, we will refer to the INS, as it was the
agency involved in Recinos’s removal proceedings.
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According to Recinos’s testimony before the IJ, Recinos
belonged to one of five Ladino (i.e., European-descended or
mestizo5) families in Huehuetenango, a region of Guatemala
predominantly populated by indigenous people. While a stu-
dent in Guatemala City in the 1980s, Recinos participated in
protests against the army’s recruitment practices and human
rights abuses against indigenous populations. Upon returning
to his town after attending school, Recinos became involved
in two sorts of political activity.
First, Recinos and his family organized collective resis-
tance to a “war tax” imposed by guerrilla forces, despite hav-
ing paid the tax in the past. One day, the guerrillas came to
Recinos’s home to demand payment. When the family
resisted, the guerrillas murdered Recinos’s uncle. Another
uncle was killed sometime thereafter, also by guerrillas.
Recinos witnessed the first killing but not the second.
Second, Recinos agitated against the forced recruitment of
young men by the government-sponsored forces and urged the
indigenous people to resist human-rights abuses perpetrated
by those forces. Military commissioners resident in the town
informed the military about these activities and about his fam-
ily’s past payments of guerrilla war taxes. Suspecting
Recinos’s involvement in the deaths of two soldiers, military
officers ransacked his house one night and arrested Recinos
and his cousin. The soldiers took the two men to view the two
dead soldiers, then interrogated and beat the two young men
for two or three hours. One soldier threatened that “next time
I’m going to come back and I’m going to kill you.” The
abductors accused Recinos of “rising up against the army,”
and ordered him “[t]o be quiet and not say anything.” The
army then released them. Recinos promptly fled to the United
States via Mexico.
5See VIII Oxford English Dictionary 581 (2d ed. 1989).
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At the hearing before the IJ, Recinos testified to the above
events. He also presented some documentary evidence,
including (1) letters from his town’s city hall, certified by the
Guatemalan foreign ministry and the U.S. consulate as
authentic, indicating that the death certificates of the two
uncles could not be retrieved because the town records had
been incinerated by guerrillas, and (2) several articles, human
rights organization reports, and State Department country
reports describing current conditions in Guatemala.
The IJ denied relief, and the BIA affirmed without opinion.
II
The BIA’s streamlining regulation allows a single member
of the BIA to affirm an IJ’s decision without opinion. 8
C.F.R. § 1003.1(e)(4)(ii).6 In cases in which the BIA issues
the two line form order dictated by the regulation, the IJ’s
opinion is “the final agency determination.” See id. We thus
look to the IJ’s decision.7 See Sidhu v. Ashcroft, 368 F.3d
1160, 1163 (9th Cir. 2004).
6Section 1003.1(e)(4)(ii) reads in its entirety:
If the Board member [to whom a case is assigned] determines
that the decision should be affirmed without opinion, the Board
shall issue an order that reads as follows: “The Board affirms,
without opinion, the result of the decision below. The decision
below is, therefore, the final agency determination. See 8 CFR
1003.1(e)(4).” An order affirming without opinion, issued under
authority of this provision, shall not include further explanation
or reasoning. Such an order approves the result reached in the
decision below; it does not necessarily imply approval of all of
the reasoning of that decision, but does signify the Board’s con-
clusion that any errors in the decision of the immigration judge
or the Service were harmless or nonmaterial.
7When the BIA affirms an IJ’s decision without opinion, it affirms the
result, but not necessarily the reasoning of the IJ. 8 C.F.R. § 1003.1(e)
(4)(ii). The BIA’s grounds for affirmance may differ from reasons stated
by the IJ. See Lanza v. Ashcroft, 389 F.3d 917, 919 (9th Cir. 2004); Falcon
Carriche v. Ashcroft, 350 F.3d 845, 855 & n.10 (9th Cir. 2003).
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We may affirm the IJ only on grounds set forth in the opin-
ion under review. See SEC v. Chenery Corp. (Chenery I), 318
U.S. 80, 87 (1943) (“The grounds upon which an administra-
tive order must be judged are those upon which the record
discloses that its action was based.”). “[A]n important corol-
lary” to that rule is that the basis for an agency determination
“must be set forth with such clarity as to be understandable.
It will not do for a court to be compelled to guess at the theory
underlying the agency’s action.” SEC v. Chenery Corp.
(Chenery II), 332 U.S. 194, 196-97 (1947). When the agen-
cy’s reasoning is indiscernible, “the courts cannot exercise
their duty of review,” Chenery I, 318 U.S. at 94, and instead
must remand to the agency. See Phelps Dodge Corp. v. NLRB,
313 U.S. 177, 197 (1941) (remanding case where agency gave
no “clear indication” of its holding), cited in Chenery I, 313
U.S. at 94; see also Gjyzi v. Ashcroft, 386 F.3d 710, 716 (6th
Cir. 2004) (vacating and remanding BIA order because “the
failure of the BIA to explain its decision in this case unneces-
sarily frustrates our review”); Mihaylov v. Ashcroft, 379 F.3d
15, 17 (1st Cir. 2004) (vacating and remanding “because nei-
ther the BIA nor the Immigration Judge explained with ade-
quate clarity and particularity the grounds for rejecting
[applicant’s asylum claim]”).8
Here, for all we can tell, the BIA may have decided that Recinos testi-
fied credibly but did not meet his burden of proving past persecution or
a well-founded fear of future persecution. The BIA, however, has not so
informed us. Instead, the BIA directs us to review the IJ’s opinion as the
agency’s explanation of its decision. Because it has done so, the BIA “is
saddled with . . . the risk of reversal on grounds that do not reflect the
BIA’s actual reasons,” but do reflect the content of the IJ’s opinion. Fal-
con Carriche, 350 F.3d at 855; see also Albathani v. INS, 318 F.3d 365,
378 (1st Cir. 2003) (“[I]f the BIA does not independently state a correct
ground for affirmance in a case in which the reasoning proffered by the
IJ is faulty, the BIA risks reversal on appeal.” (citing SEC v. Chenery
Corp. (Chenery II), 332 U.S. 194, 196 (1947))).
8Clarity of the IJ’s decision is important for valid intra-agency decision-
making as well. The current regulation governing BIA review of IJ deci-
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III
A review of applicable law and of the IJ’s decision demon-
strates why it is impossible for us to decipher what legal and
factual reasons support the IJ’s decision, and why we there-
fore must remand this case for further proceedings.
[1] The agency by regulation has delineated with precision
the standards it will use in determining whether to grant asy-
lum. See 8 C.F.R. § 1208.13(b). An applicant may establish
eligibility for asylum based on either past persecution or a
“well-founded fear of future persecution.”9 Id. The Attorney
General, in his discretion, may grant asylum to eligible appli-
cants.10
sions bars the BIA from engaging in its own fact finding, instead requiring
the BIA to apply a clearly erroneous standard of review to an IJ’s findings
of fact. 8 C.F.R. § 1003.1(d)(3). When it is unclear whether the IJ has
made a finding, the BIA cannot sensibly apply a clearly erroneous stan-
dard of review with regard to that issue.
We note that, under the previous regulation, the BIA could engage in
fact finding on its own. See Ramirez-Alejandre v. Ashcroft, 319 F.3d 365,
377 (9th Cir. 2003) (en banc). The regulatory regime shifted with new reg-
ulations that went into effect on September 25, 2002. Board of Immigra-
tion Appeals: Procedural Reforms To Improve Case Management, 67 Fed.
Reg. 54878 (Aug. 26, 2002). The BIA affirmed the IJ’s opinion in the
present case on September 30, 2002, so the new regulation governed the
BIA’s decision.
9The statute provides for these two alternate grounds: The Attorney
General may grant asylum to any applicant who has established that she
is a refugee, 8 U.S.C. § 1158(b), defined as one who cannot or will not
return to her country of origin “because of persecution or a well-founded
fear of persecution.” 8 U.S.C. § 1101(a)(42)(A) (emphasis added); see
also Ratnam v. INS, 154 F.3d 990, 994 (9th Cir. 1998) (“Either past perse-
cution or a well-founded fear of future persecution provides eligibility for
a discretionary grant of asylum . . . .”).
10Although granting asylum to eligible applicants is discretionary,
courts may review the Attorney General’s exercise of that discretion. See
8 U.S.C. § 1252(a)(2)(B)(ii).
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If the applicant proves his eligibility by showing past perse-
cution, then the remainder of the analysis is affected: That
showing creates a rebuttable presumption that the applicant
also has a well-founded fear of future persecution, 8 C.F.R.
§ 1208.13(b)(1), and thus will be granted asylum in the exer-
cise of the Attorney General’s discretion. The regulation
directs the asylum officer, “in the exercise of his or her discre-
tion,” § 1208.13(b)(1)(i), to deny asylum if the government
proves either a “fundamental change in circumstances,” or, in
certain circumstances, that “[t]he applicant could avoid future
persecution by relocating to another part of the applicant’s
country.” § 1208.13(b)(1)(ii) (burden of proof); § 1208.13(b)
(1)(i)(A) (changed circumstances); § 1208.13(b)(1)(i)(B)
(relocation). Notwithstanding such a showing, an applicant
retains eligibility for asylum if the applicant has shown either
that past persecution is especially severe, § 1208.13(b)(1)
(iii)(A), see Belayneh v. INS, 213 F.3d 488, 491 (9th Cir.
2000), or that “other serious harm,” aside from persecution,
will result if he is removed to his country of origin.
§ 1208.13(b)(1)(iii)(B); see also Belishta v. Ashcroft, 378
F.3d 1078, 1079 (9th Cir. 2004) (order).
The regulation operates differently if the applicant seeks to
establish his eligibility by proving only that he has a well-
founded fear of future persecution, without establishing past
persecution. To do so requires proving both a subjective fear
of future persecution, § 1208.13(b)(2)(i)(A), and an objec-
tively “reasonable possibility” that the applicant will be perse-
cuted upon return to the country in question. § 1208.13(b)(2)
(i)(B). An applicant relying only on a well-founded fear of
future persecution must meet both the subjective and objec-
tive prongs to establish eligibility for asylum. See, e.g., Kaiser
v. Ashcroft, 390 F.3d 653, 658 (9th Cir. 2004). A reasonable
possibility may be shown even where the applicant has only
a ten percent chance of being persecuted. See INS v. Cardoza-
Fonseca, 480 U.S. 421, 430-43 (1987). If the applicant could
avoid persecution by relocating within his country, and under
all relevant circumstances it is reasonable to expect him to do
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so, then he does not have a well-founded fear of future perse-
cution. 8 C.F.R. § 1208.13(b)(2)(ii). If the applicant has not
proven past persecution and the persecution at issue is not “by
a government or government-sponsored,” then the applicant
bears the burden of proving that relocation would not be rea-
sonable. § 1208.13(b)(3)(i). Otherwise, the burden of proof
falls on the government. § 1208.13(b)(3)(ii).
[2] The IJ did not follow this decisional structure outlined
by the regulation, or, for that matter, any intelligible structure.
Rather, the IJ’s opinion jumbles together discussions of
Recinos’s credibility, past persecution, future persecution,
changed country circumstances, and relocation. As a result,
regarding at least five crucial points, we cannot tell what fac-
tual or legal determinations, if any, the IJ made. Accordingly,
in many instances, we cannot determine what holdings of the
IJ we should review.
[3] First, the IJ made somewhat confusing statements
regarding Recinos’s credibility. Initially, the IJ stated: “I find
the respondent is credible.” Yet, the very next sentence of the
transcribed opinion reads: “The credibility issue brings many
doubts have arisen in that as to the actual happenings and that
what will happen to him if he is to be returned.” Although that
sentence defies parsing under ordinary rules of English gram-
mar, it appears to cast doubt on the credibility of Recinos’s
testimony as a whole, or his testimony regarding past persecu-
tion, or his subjective fear of future persecution, or the rea-
sonableness of that fear. Any attempt to discern which, if any,
of these steps in the requisite analysis was intended would be
guesswork.
The presence or absence of an adverse credibility finding
could affect the entirety of our analysis. When an IJ deems an
asylum applicant credible, we take his testimony to be true
and review past persecution, future persecution, and other
findings accordingly. Garcia-Martinez v. Ashcroft, 371 F.3d
1066, 1069 n.1 (9th Cir. 2004). In contrast, when an IJ
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expressly finds that an applicant’s testimony is not credible,
we review that finding for substantial evidence. Mendoza
Manimbao v. Ashcroft, 329 F.3d 655, 658 (9th Cir. 2003).
Without an intelligible holding on credibility, we have no way
of knowing which type of review to conduct.
[4] Although we note the IJ’s incoherence regarding
Recinos’s credibility as illustrative of the entire opinion’s
indecipherable nature, the problem regarding the ambiguity of
the credibility determination is not a reason by itself to
remand to the agency. Our precedents hold that, in the
absence of a clear adverse credibility finding, we take the
petitioner’s testimony to be true and judge his eligibility for
asylum accordingly. See Lopez v. Ashcroft, 366 F.3d 799, 804
(9th Cir. 2004) (“Because no adverse credibility determina-
tion was made, and Lopez’s tale in testimony was plausible,
his story here must be accepted . . . .”); Hartooni v. INS, 21
F.3d 336, 342 (9th Cir. 1994) (“Absent an explicit finding that
a specific statement by the petitioner is not credible we are
required to accept her testimony as true.”). We therefore
assume in the remainder of this opinion that the IJ — and
therefore the BIA — found Recinos credible, and accept his
testimony as true.
[5] The government did not advance an argument regarding
credibility in its closing arguments to the IJ or in its brief to
the BIA. Indeed, that brief merely announced the govern-
ment’s agreement with the IJ’s “ultimate decision . . . not-
withstanding the analysis.” When the government “did not
argue before the IJ or BIA” a particular issue, we have
declined to allow the government another opportunity to do so
on remand. Baballah v. Ashcroft, 367 F.3d 1067, 1078 n.11
(9th Cir. 2004). Accordingly, on remand, the government may
not relitigate the credibility of Recinos’s testimony before the
IJ, but the agency must take that testimony to be true.
[6] Second, it is entirely unclear whether the IJ made a find-
ing regarding past persecution. The IJ at one point appeared
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to find that Recinos had not suffered past persecution, stating:
“I don’t find that his story relates to or meets the burden to
establish persecution, per se, under that ground.” The IJ did
not, however, specify what he meant by “per se” persecution,
nor did he indicate what “that ground” referred to. The con-
text amplifies this ambiguity. In the paragraph preceding the
past persecution discussion, the IJ stated that “an alien who
seeks [refugee] status must do so by showing . . . that they
have suffered in the past persecution so severe that his suffer-
ing warrants asylum on humanitarian grounds.” A plausible,
though by no means definite, reading of the IJ’s opinion is
that the IJ did not find Recinos eligible for asylum on “that
ground,” that is, “humanitarian grounds” based on severe past
persecution.
If this reading were accurate, we would have to consider
whether the IJ applied the correct legal standard. The “sever-
ity of the past persecution,” 8 C.F.R. § 1208.13(b)(1)(iii)(A),
is relevant only to whether an applicant is to be granted asy-
lum in the exercise of an asylum officer’s discretion without
showing a well-founded fear of future persecution. Id. The
degree of severity of past persecution is irrelevant to finding
whether any past persecution occurred.11 Legal review of a
no-severity determination thus significantly differs from legal
review of the question whether an IJ properly concluded that
the applicant’s past treatment did not amount to persecution
at all. The problem here is that we do not know which analy-
sis to undertake, because we cannot know what the IJ decided.
11The standard for determining whether past persecution has occurred
includes some measure of the seriousness of the conduct at issue. See
Fisher v. INS, 79 F.3d 955, 961 (9th Cir. 1996) (en banc) (“Persecution
is an extreme concept . . . .”). That determination is different, however,
from deciding whether past persecution is so severe that an asylum officer
must exercise his discretion to grant asylum even when the government
has rebutted the applicant’s presumption of a well-founded fear of future
persecution. § 1208.13(b)(1)(iii).
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[7] Third, the problems with the past persecution finding —
or lack thereof — infect the remainder of the IJ’s opinion. As
noted, under the regulations, finding past persecution creates
a presumption of a well-founded fear of future persecution
and places the burden of proof on the government regarding
changed country conditions and relocation. 8 C.F.R.
§ 1208.13(b)(1)(ii). Further, finding past persecution would
require an individualized analysis of changed conditions to
show that those changes would affect the likelihood that
Recinos himself, and not a typical Guatemalan, would face
persecution. See Chand v. INS, 222 F.3d 1066, 1079 (9th Cir.
2000). As we can discern neither a definite past persecution
finding nor the legal standard used to make any such finding
if there was one, we cannot review whether the IJ applied the
correct burden of proof with respect to these other issues.
[8] Fourth, the IJ’s discussion of current conditions in Gua-
temala lacks either discernible factual findings or an indica-
tion of the burden of proof or legal standard applied. The
opinion mixes discussion of changed conditions with discus-
sion of past and future persecution, and never sets forth
changed country conditions as an independent basis for deny-
ing relief.
For example, the IJ did discuss at some length changed
conditions in Guatemala since the 1996 peace accords.12 Yet,
12The IJ stated:
The country reports, the latest country reports in Guatemala
indicate that Guatemala is a democratic republic with separations
of powers and has been a change in the country. . . . The peace
accords took place on December 29, 1996. The country reports
indicate there have been some changes and have been difficulties
and that the guerrillas and the military came together. They have
made peace and the constitution of Guatemala provides for the
integrity and security of a person, prohibits physical or psycho-
logical torture and the use of excessive force during arrests and
other public operations have been curtailed. . . . The results of the
march cessation of hostilities and series of government reforms
including disbanding of the P.A.C.s. In this time there was
marked improvement in overall human rights situations.
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the IJ never stated clearly that he found that circumstances in
Guatemala have changed so fundamentally as to justify
declining to grant Recinos asylum, and at some points appears
to state otherwise. At one point, for example, the IJ stated,
“There could be changed circumstances.” (emphasis added).
Additionally, while generally focusing on positive changes in
Guatemala, the IJ noted, “there are some difficulties in little
packets in little places.” The IJ specifically noted continuing
problems for indigenous Guatemalans, the very group for
whom Recinos had advocated.
Had the IJ’s discussion set forth findings with some clarity
and used the proper burden of proof, it is possible that the evi-
dence might have been sufficient to support a finding that
Recinos did not meet his burden of proving that he faced a
reasonable possibility of future persecution. See 8 C.F.R.
§ 1208.13(b)(2)(B). A clear finding that the government met
its burden of proving fundamentally changed circumstances
(a burden that would be the government’s if Recinos had
suffered past persecution) might also have been a proper
basis to deny relief. See § 1208.13(b)(1)(i)(A). But changed-
conditions evidence has nothing to do with finding past perse-
cution, and “[a]n alternative holding is only adequate to sup-
port the result if it is separate from and independent of any
other basis for the decision.” Tarubac v. INS, 182 F.3d 1114,
1120 n.5 (9th Cir. 1999). We cannot be sure what the IJ found
regarding changed conditions — if he found anything more
than what “could” be the case — and so cannot review either
of these alternative understandings of the IJ’s opinion.
[9] Fifth, the IJ implied that relocation might be possible,
but made no clear findings in this regard either. The IJ stated:
“That his family moved the bulk of (indiscernible) of his
father are now living in Guatemala city and they have had no
problems in that country.” Perhaps the IJ intended to make a
finding that the government rebutted Recinos’s presumption
of a well-founded fear of future persecution because he
“could avoid future persecution by relocating” to Guatemala
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City as did his family, 8 C.F.R. § 1208.13(b)(1)(i)(B), or that
Recinos did not meet the burden of proof (which would only
be his burden if he did not establish past persecution and the
persecution was determined not to be government-sponsored)
to show that relocation would not be reasonable. § 1208.13(b)
(3)(i). The IJ, however, did not make any finding explicit, nor
did he establish whose burden it was to prove whether reloca-
tion was a viable option. See § 1208.13(b)(3) (discussing dif-
ferent burdens of proof regarding relocation in different
situations).
IV
The IJ opinion in this case is extreme in its lack of a coher-
ent explanation. We acknowledge, however, that under cur-
rent circumstances, it is difficult for IJs to explain their often
complicated decisions adequately. In fiscal year 2003, the
most recent year for which data is available, the Executive
Office for Immigration Review adjudicated almost 300,000
cases in Immigration Court. EXECUTIVE OFFICE FOR IMMIGRA-
TION REVIEW, U.S. DEP’T OF JUSTICE, FY 2003 STATISTICAL
YEAR BOOK B2 fig.1 (2004). More than 65,000 of those cases
involved asylum claims. Id. at I1 fig.13. The caseload pres-
sures are especially heavy in Los Angeles, where the IJ in this
case sat. The Los Angeles Immigration Court heard more than
28,000 cases, id. at B3 tbl.1, more than 12,000 of which
involved asylum claims. Id. at I3 tbl.6. As of January 2005,
only twenty-six Immigration Judges worked in the Immigra-
tion Court in Los Angeles. EOIR Immigration Court Listing,
http://www.usdoj.gov/eoir/sibpages/ICadr.htm (last visited
Feb. 16, 2005).
Those sobering realities, however, do not change long-
standing principles governing judicial review of agency deci-
sions or the regulations governing the BIA’s review of IJ
opinions. As detailed above, we cannot, with any confidence,
discern the grounds for the agency’s action. The IJ’s opinion
— which appears to be an unedited version of a badly tran-
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scribed, rambling set of oral observations — is incoherent
regarding both the findings made and the legal standards
applied.
[10] The BIA’s two-line affirmance does nothing additional
to satisfy the basic requirement that “the grounds upon which
the administrative agency acted be clearly disclosed and ade-
quately sustained.” Chenery I, 318 U.S. at 94. By streamlining
the case, the BIA offered no coherent alternative explanation
for the decision not dependent on the IJ’s deficient finding of
facts. Instead, the BIA rested on the IJ’s indecipherable expla-
nation.
[11] We will not “guess at the theory underlying” the IJ’s
or the BIA’s opinion. Chenery II, 332 U.S. at 197. We there-
fore cannot effectively review such a decision without violat-
ing basic administrative law precepts. We accordingly remand
the case. On remand, the BIA may decide legal issues in the
case based on the facts established by Recinos’s testimony —
which must be taken as true — but the BIA may not, under
8 C.F.R. § 1003.1(d)(3), make factual determinations in the
first instance. If the BIA determines that further factual deter-
minations are necessary to its opinion, the BIA must remand
the case for fact finding under § 1003.1(d)(3)(iv). See Men-
doza Manimbao, 329 F.3d at 661.
For these reasons, we GRANT the petition for review and
REMAND this case to the BIA for proceedings consistent
with this opinion.
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APPENDIX: Transcript of the Oral Opinion of the IJ
The respondent is a 35-year-old, married male alien, native
and citizen of Guatemala, who last entered the United States
on or about October the 31st, 1991. He entered at that time
without inspection. He was placed in removal proceedings.
Therefore, I find he is deportable or removable as charged as
set forth in the Notice to Appear.
I find that he, having conceded, he is removable by clear,
convincing, and unequivocal evidence, Woodby vs. INS, I&N
385 U.S. 276.
Respondent has applied for political asylum and withhold-
ing of deportation. His request was, first he appeared before
the asylum office who referred his case to the Immigration
Court for further hearing. The country reports, the latest coun-
try reports in Guatemala indicate that Guatemala is a demo-
cratic republic with separations of powers and has been a
change in the country. It is also to be noted that in recent
times peace has come to the United Nation Human Rights
Verification Mission established in ’94 monitored compliance
with the Government, U.R.N.G. Human Rights Accord (indis-
cernible) monitoring peace accords. And there has been
change in the country. The peace accords took place on
December 29, 1996. The country reports indicate there have
been some changes and have been difficulties and that the
guerrillas and the military came together. They have made
peace and the constitution of Guatemala provides for the
integrity and security of a person, prohibits physical or psy-
chological torture and the use of excessive force during
arrests and other public operations have been curtailed. The
country reports also indicate in Guatemala that most of the
claims that are based upon political opinion would be dissi-
pated with the new situation. The results of the march cessa-
tion of hostilities and series of government reforms including
disbanding of the P.A.C.s. In this time there was marked
improvement in overall human rights situations. However,
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there are some difficulties in little packets in little places. And
that the country conditions are much better. The claims
against the Government that the reports also indicate and the
respondent’s applications. First he’s had some difficulties as
a result of living in an area of the indigenous. There were only
five families that were Latino and that he would be picked out
and targeted because he would look different than the other
indigenous people by any other guerrillas. They also in the
thrust of the claim in the respondent’s arguments and his testi-
mony in the case the claims against the Government. And
there has been evidence that the Indian or indigenous people
who speak the variety of different Indian tongues do have
problems that have taken place. That the Indian applicants
have made out have been (indiscernible) and traditional notice
has taken that affect.
The thrust of the applicant’s contention that he wouldn’t be
harmed is that he left Guatemala in 1991 and he entered
approximately ten or 11 days later. He said he came to the
United States because he was persecuted because of social
and political problems in Guatemala. He stated he was a
protestor against the human rights conditions against the
indigenous people and that there were many problems against
them and he protested for them and told them to be opposed
to the continuing government in Guatemala.
The evidence of record indicates that he moved. He went
to study in Guatemala City and was studying an institute cal-
led Gomez Castillo, accounting and bookkeeping, and that he
worked with his uncle. They, at that time, always they joined
the social and political groups of the college that he went to
and that he would be marked and he would be known. His
argument was that he advised and gave (indiscernible) com-
fort to the indigenous people and that he would be known by
the army who indicated that he shouldn’t be doing these
things, that he should be supporting the military. He indicated
that he was beaten once because of his involvement with the
(indiscernible) and it was the army who he fears if he were to
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go back there. They have a record, a dossier about him and
that they would be looking for him.
The evidence of record indicates that these things have
taken place back some ten or twelve years ago and that it
doesn’t appear that these would be harmful to him. When
questioned by the Government’s attorney he testified that he
was detained by the military in 1990, that his father remains
in Guatemala and the rest of his family is also in Guatemala
but not in the same provinces where he lived but have moved
to the major cities where they wouldn’t have any problems.
The respondent also testified in his original papers that his
uncle and he was involved with their farms and they didn’t
want to give money or extortion money to the guerrillas who
were threatening them at that time. That his two uncles were
eventually killed and he feels other problems would happen
to him.
The evidence of record is rather weak and not very support-
ive or his arguments. The conditions are very strong now
against the great human rights violations. The Indian popula-
tions do have difficulties but the nexus which the respondent
contends to show that because of his interference on their
behalf that he would be targeted by the government, but
there’s no evidence to substantiate that this will actually hap-
pen or that there has been such past persecution that there
would be future persecution if he were to return to that coun-
try.
The burden of proof of cases involving political asylum,
withholding of deportation rest with the respondent. The
Attorney General has authorized in his discretion to grant asy-
lum to someone who has been a refugee under Section
101(a)(42). An asylum could be granted under Section 208.
The statute defines a refugee as an alien who is unwilling or
unable to return to his home country because of persecution
or a well-founded fear of persecution on account of race, reli-
gion, nationality, membership in a particular social group or
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political opinion. The Board of Immigration Appeals has held
that an alien who seeks such status must do so by showing
that they reasonably fear they will be harmed if they return to
their country or that they have suffered in the past persecution
so severe that his suffering warrants asylum on humanitarian
grounds. See Matter of Chen, Int. Dec. 3104 Vol. 20.
The issue before me is an issue of credibility. I find the
respondent is credible, but I don’t find that his story relates to
or meets the burden to establish persecution, per se, under that
ground. The credibility issue brings many doubts have arisen
in that as to the actual happenings and that what will happen
to him if he is to be returned. The burden of proof and politi-
cal asylum, withholding of deportation rest with the applicant.
In order to establish withholding of deportation respondent
must show that it is more likely than not that he would be
harmed if returned to his country and that a clear probability
such harm exists. See INS v. Stevic, 467 U.S. 407 (1984). To
be eligible for that in the Matter of INS v. Cardoza-Fonseca,
480 U.S. 421, the Supreme Court stated that a well-founded
fear of persecution requires that lesser degree of proof than
the clear probability of persecution and the Board of Immigra-
tion Appeals has adopted the proposition that a well-founded
fear of persecution exists when a reasonable person in an
alien’s circumstances would fear persecution if returned to his
native country. See Matter of Mogharrabi, Int. Dec. 3028. See
also Gribara-Flores v. INS, 786 F.2d 1242 (5th Cir. 1986).
An assessing all the factors in this case the respondent has
testified to the fact that he was a protestor for the indigenous
people in his town. That his family moved the bulk of (indis-
cernible) of his father are now living in Guatemala City and
they have had no problems in that country. There could be
changed circumstances. It is also to be noted that the respon-
dent came here and that there were some difficulties with
guerrillas but they no longer are viable in Guatemala. Respon-
dent indicated that he would be targeted by the police and it
doesn’t appear that that would happen or that he was such an
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outrageous or known person that he would be harmed if
returned to that country.
I find, after reviewing all the facts and hearing all of the
case, I don’t find that the respondent has met the burden of
proof to establish that he would be persecuted if he was to be
returned to Guatemala. However, I do find he is eligible for
the relief of voluntary departure and I will give him a reason-
able relief as he has been here for a long time.
ORDER
IT IS HEREBY ORDERED respondent’s application for
political asylum and the withholding of deportation is denied.
IT IS FURTHER ORDERED the respondent’s application
for voluntary departure be granted.
/s/
NATHAN W. GORDON
Immigration Judge
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