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Ivan Eduardo Roldan Olivares v. Immigration and Naturalization Service

Publisher United States Court of Appeals for the Ninth Circuit
Publication Date 30 June 1994
Citation / Document Symbol Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4
Reference 92-70640
Cite as Ivan Eduardo Roldan Olivares v. Immigration and Naturalization Service, Fed. R. App. P. 34(a); Ninth Circuit Rule 34-4, United States Court of Appeals for the Ninth Circuit, 30 June 1994, available at: http://www.refworld.org/docid/3ae6b6d30.html [accessed 17 September 2014]
Comments Submitted: 14 June, 1994; Filed: 30 June, 1994 The panel unanimously found this case suitable for decision without oral argument
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

IVAN EDUARDO ROLDAN OLIVARES, Petitioner, v. IMMIGRATION &
NATURALIZATION SERVICE, Respondent.
No. 92-70640 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
June 14, 1994, ** Submitted, San Francisco, California ** The panel unanimously found this case suitable for
decision without oral argument. Fed. R. App. P. 34(a) and
Ninth Circuit Rule 34-4.
June 30, 1994, Filed

Prior History:

Petition to Review a Decision of the Immigration and Naturalization Service. I&NS No. A37-580-305

Disposition:

AFFIRMED

Judges:

Before: GOODWIN, PREGERSON, and RYMER, Circuit Judges.

Opinion:

MEMORANDUM *

* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.

I. INTRODUCTION

Ivan Roldan-Olivares petitions pro se for review of the denial of his applications for political asylum and withholding of deportation. We have jurisdiction under 8 U.S.C. § 1105a(a), and we deny the petition for review.

II. BACKGROUND

Ivan Roldan-Olivares is a 33-year old native and citizen of El Salvador. He came to the United States from El Salvador in 1978. He was deported in 1979, and re-entered this country legally in April of 1981. In 1985, he was arrested and pleaded guilty to cocaine possession. As a result of this conviction, he was arrested for deportation. At his deportation hearing, he conceded deportability but submitted an application for political asylum and withholding of deportation, claiming persecution on account of political opinion.

In his application and in subsequent testimony, he based his claim on his experiences as a member of the Salvadoran rebel organization known as the

Frente Popular de Liberacion (the "FPL"). He joined the FPL after graduating from high school in November 1978. His activities on behalf of the FPL initially consisted of traveling around to various high schools with other FPL members to garner support for the organization.

Shortly thereafter, though, he and other FPL partisans participated in an armed robbery of weapons from the Canada Dry plant in San Salvador. The police found out about his participation in this raid and went to his house looking for him. He claimed that the police held his family at gun point and threatened to kill his sister.

This visit terrified Roldan-Olivares. Two of his friends had been killed by the Salvadoran National Guard during a political demonstration. His uncle, the mayor of a Salvadoran village, and his uncle's son had also been killed by the Salvadoran military a few years earlier. A few weeks after the police went to Roldan-Olivares's house, he departed El Salvador for the United States.

After Roldan-Olivares's deportation hearing, the Immigration Judge ("IJ") judged him not to be a credible witness, pointing to various contradictions between his testimony and the documentary evidence. The IJ also found that if Roldan-Olivares were forced to return to El Salvador he would be punished as a criminal rather than persecuted for his beliefs.

Roldan-Olivares appealed the IJ's decision to the Board of Immigration Appeals (the "Board"). The Board affirmed the denial of deportation, deferring to the IJ's credibility findings, and concurring in the IJ's determination that any punishment Roldan-Olivares would receive if forced to return to El Salvador would be as a result of criminal activities rather than for his political opinion.

III. DISCUSSION

A.Standard of Review: We review de novo legal questions regarding the requirements of the Immigration and Nationality Act (the "Act"). Hartooni v. INS, 92-70613, slip op. 3347, 3354 (9th Cir. Apr. 7, 1994). The Board's factual findings are reviewed for substantial evidence. Ghebllawi v. INS, No. 92-70483, 1994 Daily App. Rpt. 7689, 7690 (9th Cir. June 6, 1994). We reverse where "the record . . . clearly precludes the Board's decision from being justified by a fair estimate of the worth of the testimony of witnesses or its informed judgment on matters within its special competence or both." Id. (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 490, 95 L. Ed. 456, 71 S. Ct. 456 (1951). Though we review the Board's decision rather than that of the IJ, we give deference to the credibility findings of the IJ so long as the IJ gives specific and cogent reasons for any stated disbelief. Hartooni, 92-70613, Slip. Op. at 3357.

B.Analysis: The Attorney General has discretion to grant asylum to any applicant who meets the threshold definition of a "refugee." 8 U.S.C. §§ 1101(a)(42), 1157-59, 1253(h), 1521-24. "Refugee" is statutorily defined as "any person who is outside any country of such person's nationality . . . and who is unable or unwilling to return to . . . that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion . . . ." 8 U.S.C. § 1101(a)(42)(A).

An application for asylum in exclusion or deportation proceedings is automatically considered as a simultaneous request for withholding of deportation. 8 C.F.R. § 208.3(b). Whereas a grant of asylum is discretionary, withholding of deportation is mandatory for qualified individuals. 8 U.S.C. § 1253(h). Those who qualify are individuals whose "life or freedom would be threatened in [their country of origin] . . . on account of race, religion, nationality, membership in a particular social group, or political opinion." Id. The Supreme Court has held that this requires the applicant to demonstrate that it is "more likely than not" that the applicant would be subject to persecution in the applicant's home country. INS v. Stevic, 467 U.S. 407, 429-430, 81 L. Ed. 2d 321, 104 S. Ct. 2489 (1984).

Roldan-Olivares's petition essentially raises three issues. He argues that: (1) the IJ's credibility finding was unfounded, (2) deportation would take him away from his American family; and (3) the finding that he did not have a well-founded fear of persecution on account of political opinion was not supported by substantial evidence. We address these issues in turn.

(1) Credibility Roldan-Olivares contends that the IJ's credibility assessment was based on the manner in which he testified rather than the veracity of his answers. In his view, the judge failed to take into account his confusion and his inability to understand the questions.

Our task is to determine if the Board and the IJ gave specific and cogent reasons for their credibility judgments. Hartooni, 92-70613, Slip. Op. at 3357. The Board stated that it based its determination on the IJ's assessment and "several" discrepancies between the Roldan-Olivares's testimony and other evidence in the record. AR at 5. The Board specifically mentioned two discrepancies. Roldan-Olivares stated in his asylum application that he had been beaten by the Salvadoran National Guard, but at his hearing, he denied, without explanation, that he had ever been beaten by the National Guard. In addition, at his hearing, Roldan-Olivares denied having ever been deported to El Salvador until confronted by the evidence that he had indeed been deported. These discrepancies provide substantial evidence to support the Board's credibility finding.

(2) Family Unity Mr. Roldan-Olivares argues that his deportation would break up his American family, including his United States citizen wife and children. Family unity is not among the statutory reasons for granting asylum or withholding of deportation. See 8 U.S.C. § 1101(a)(42)(A); 8 U.S.C. § 1253(h).[1]

1182(c)).

(3) Well-founded Fear of Persecution On Account of Political Opinion.

Finally, Roldan-Olivares claims that the Board erred in finding that he failed to establish a nexus between the motives of the Salvadoran government to persecute him and his political beliefs.

The three principal elements of an asylum claim based on political opinion are that: (1) the applicant was persecuted or has a well-founded fear of future persecution, (2) he has a political belief or one has been imputed to her, and (3) there is a nexus between the motives of the persecutor and the beliefs or imputed beliefs of the applicant. See INS v. Elias-Zacarias, 117 L. Ed. 2d 38, 112 S. Ct. 812, 816 (1992) (requiring petitioner to show he had a political motive for resisting military recruitment, and clarifying that the required persecution must be on account of the victim's political opinion); Canas-Segovia v. INS, 970 F.2d 599 (9th Cir. 1992) (Elias-Zacarias did not foreclose the possibility of basing a claim of refugee status on an imputed political opinion).

Here the Board found that proof of third element of motive was missing. The Board determined that any likely punishment would be on account of Roldan-Olivares's criminal activity rather than on account of his actual beliefs or any beliefs attributed to him. Roldan-Olivares admits that he committed armed robbery in El Salvador and that the only persecution he suffered as a result was that the police came looking for him and threatened his family. He presented no evidence that their motives were other than to prosecute the crime. The evidence therefore supports the Board's determination.

AFFIRMED



[1]Family unity is protected by various other immigration provisions that are not relevent to Mr. Roldan-Olivares's asylum claim. See, e.g., 8 C.F.R. § 242.6 (Family Unity under the Immigration Reform and Control Act); Matter of Edwards, I.D. 3134 (BIA 1990) (criteria for determining whether exceptional and extremely unusual hardship merits relief from deportation under 8 U.S.C. §

 

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