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Gonzalez v. Immigration and Naturalization Service

February 29, 1996






Petition to Review an Order of the Board of Immigration Appeals. Nos. A29-769-888 and A29-769-889

Before BAUER, ROVNER, and EVANS, Circuit Judges.

EVANS, Circuit Judge.



Petitioners Maria Gonzalez and her minor daughter, Karen, are natives and citizens of Nicaragua. They fled Nicaragua in March 1989 when the Sandinista-controlled government was in power and subsequently sought asylum in this country. They were denied asylum, and an additional request for withholding of deportation, after a hearing by an immigration judge who found that Maria did not have a well-founded fear that she would be persecuted if she returned to Nicaragua. They appealed to the Board of Immigration Appeals which agreed with the immigration judge and affirmed. They now petition this court for review of the Board's decision. The case requires us to examine whether the petitioners (Karen's case rides on her mother's appeal) have a well-founded fear of persecution by either the Contras or the Sandinistas in light of the defeat of the Sandinista party in the Nicaraguan national elections of 1990.

After illegally entering the United States in 1989, the petitioners were arrested in Texas by agents of the Immigration and Naturalization Service and placed under deportation proceedings. They admitted deportability but sought asylum and withholding of deportation under secs. 208 and 243(h) of the Immigration and Nationality Act, 8 U.S.C. secs. 1158, 1253(h), claiming persecution should they return to Nicaragua. Maria Gonzalez's fear of persecution by the Contras was allegedly founded upon her political activities under the Sandinista regime. Her fear of persecution by the Sandinistas was allegedly founded upon her expulsion from the Sandinista party, her public denunciation of a Sandinista party official, and her fleeing and abandoning Nicaragua.

A hearing on the petitioners' requests commenced before Immigration Judge O. John Brahos in August 1989. It was subsequently continued on three separate occasions: October 1989, January 1990, and March 1990. In February 1990, general elections were held in Nicaragua. The overconfident Sandinista party, which had been in power since the 1979 revolution overthrowing Anastasio Somoza Debayle, was soundly defeated by the UNO party (a coalition formed by parties in opposition to the Sandinistas). Violeta Chamorro was installed as the new President of Nicaragua, replacing General Daniel Ortega. At the final deportation hearing in March 1990, the immigration judge took notice of the changed political conditions in Nicaragua where, in addition to Chamorro assuming the office of President, the legislature granted amnesty to both Contras and Sandinistas for their past civil and criminal misdeeds. At the conclusion of the hearing, the immigration judge denied the application for asylum and withholding of deportation. The Gonzalezes were granted voluntary departure from the United States.

Petitioners filed a timely appeal to the BIA. While that appeal was pending, they filed a motion to submit additional evidence or, in the alternative, for remand to an immigration judge for a hearing to consider new evidence. The BIA denied petitioners' motion for remand and dismissed their appeal on December 30, 1994, but granted them 30 days voluntary departure. In reaching its decision, the BIA found Gonzalez's alleged fear of persecution to be "completely unfounded," lacking substantial support in the record, and significantly undermined by the changed political situation in Nicaragua since 1990. Finally, the BIA denied the motion for remand because the additional supporting materials did not, in its view, remotely suggest that a new hearing would likely change the result in the case.

Petitioners raise several claims on appeal. First, they allege that the BIA erred in denying asylum when it concluded that their fear of persecution was unsupported by objective evidence. Second, they say the BIA erred in denying withholding of deportation because the evidence established that their fear of persecution was more likely than not. Next, they allege their due process rights under the Fifth Amendment were denied by the actions of the immigration judge. Lastly, they contend the BIA erred in failing to remand for a hearing to consider their new evidence.

To be eligible for asylum, an alien must establish that she meets the statutory definition of "refugee," which requires her to show either past persecution or a "wellfounded fear" of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. sec. 1101(a)(42)(A). If the alien succeeds in this regard, the Attorney General may, in her discretion, grant the applicant's asylum petition. 8 U.S.C. sec. 1158(a).

Maria Gonzalez does not allege past persecution; rather, she claims a well-founded fear of future persecution based on her political opinions. In her asylum application, Gonzalez stated that in 1975 she received certification as a teacher in elementary and secondary education from a university in Esteli, Nicaragua. She has a child in Nicaragua, as well as the minor child Karen who accompanied her to the United States, and a brother who is a legal resident in the United States. She further stated in her application that she feared arrest and detention for her "counter-revolutionary" activities in Nicaragua and would "only return if I felt that my life and liberties would no longer be in danger." She further indicated that she left Nicaragua to avoid "future imprisonment," and that her departure would be interpreted as an act of disloyalty. In response to a question on the application asking whether she had ever been detained, interrogated, convicted, sentenced, or imprisoned in any country, she answered "no." In response to a question asking whether any member of her family had ever been mistreated by the authorities in her home country on account of race, religion, nationality, political opinion, or membership in a particular social group, she again answered "no."

At the deportation hearings, Maria Gonzalez testified she became active in the Sandinista Front in 1976 as a mail woman or courier prior to the 1979 Sandinista revolution. She distributed propaganda in Managua as well as traveled to Mexico several times to visit Nicaraguans in "exile" and deliver mail to them. Upon return to Nicaragua on one such occasion, she was questioned by Nicaraguan immigration authorities for five hours, although she failed to mention this incident on her asylum application. Following the revolution, she continued her activity with the Sandinistas and in 1980 was sent to the town of Muymuy to be a "vice coordinator" in the "National Crusade for Alphabetization," a literacy campaign. She supervised the literacy campaign's activities in sixteen towns. She also worked with the "defense committee of the Sandinistas," or CDS, and helped recruit "peasants" for the "popular militia." She believed the Contras were aware of her activities in Muymuy because other people told her that her name was broadcast on a Contra-controlled radio station. She stated the Contras were active in the Muymuy region, although that region is centrally located and far from the Honduran border where Contra activity was highest. However, while in Muymuy she never personally encountered any Contras.

In 1983 she was transferred from Muymuy to Matiguas where she continued her work in the literacy campaign. She claimed there was also Contra activity around Matiguas and claimed that some people working in the literacy campaign were kidnapped or harmed by Contras. Fearing such retribution, she requested a transfer. In 1984 she was transferred from Matiguas to Matagalpa where she served as a "regional technician" in the "war zones," reporting to her superiors on problems with education and with names of Contra collaborators.

In February 1985 she moved to Managua to work at the "Nicaraguan Institute of Energy" (INE). She was actively involved in the INE's labor union and elected to the position of general secretary of a unit of the union which represented workers in the training department. While working at INE she requested a meeting with a man named Rapaccioli, the government minister who supervised the INE. At this meeting she accused one of her supervisors, Ms. Jimenez, an assistant to Minister Rapaccioli, of abusing her position by using state-owned vehicles for her personal business. Minister Rapaccioli said he would investigate the matter. Dissatisfied with the delay in his investigation, Gonzalez took matters into her own hands and reported her allegations to the press. This angered Minister Rappacioli (again, this is all from Gonzalez's testimony), but he took no action against her. At or about this time, the training department at the INE was targeted for a "compaction" or work-force reduction. Gonzalez opposed the ...

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