News
Immigration
Mar. 1, 2002
Court Lets Man Denied Asylum Remain in U.S.
LOS ANGELES - A Peruvian man who was denied asylum in the United States after fleeing persecution by Shining Path guerrillas in his homeland is eligible to remain in this country, an appeals court ruled Thursday.
The 9th U.S. Circuit Court of Appeals opinion by Judge Richard Paez remanded the case of Dagoberto Hermes Salazar-Paucar to the Board of Immigration Appeals for a grant of asylum. The three-member panel also approved the petitioner's application for withholding of deportation, a category that requires a more stringent standard than that of establishing asylum. Salazar-Paucar v. Immigration and Naturalization Service, 2002 DJDAR 2328 (9th Cir. Feb. 28, 2002).
"I'm overjoyed," Salazar-Paucar's lawyer, Gary Finn, said on learning the news. "I worked on the case for nine years. It feels very good when you win a case like that."
Finn said that at the time he took the case, Salazar-Paucar had come to him with a friend from his village who had an almost identical problem and had been granted asylum. But for whatever reason, the immigration court denied his client's application.
"What this illustrates is that it's very subjective, with all the laws dependent on the adjudicator," Finn said. "You can present the same story to two people, and one says yes and the other says no."
A spokeswoman for the Board of Immigration Appeals in Falls Church, Va., said the court's policy is not to comment on cases but to let the decisions speak for themselves.
Salazar-Paucar, now 43 and living with his wife in the San Fernando Valley town of North Hills, was a minor government official in his hometown of San Pedro de Cajas in 1989 when he began receiving threats from the Shining Path to resign or face death, according to court records.
The following year, Shining Path guerrillas murdered the town's mayor, from whom Salazar-Paucar took orders. Shortly after, Salazar-Paucar joined a resistance group of local leaders, seen as an act of defiance by the guerrilla forces, the appeals court opinion said.
Several months later, while Salazar-Paucar was away, a band of guerrillas came to his town with a list of people they were targeting. They went to his house and broke down his front door. When they discovered he wasn't there, they beat his parents, Salazar-Paucar testified at his initial asylum hearing. He said the guerrillas then executed eight people in the town square, including his father-in-law, according to the opinion.
After attending the victims' funerals, Salazar-Paucar fled to the Peruvian capital of Lima, along with his parents and siblings. But 18 months later, he found a death threat painted on the outside wall of his family's house. A few weeks later, he learned that two of his hometown colleagues had been murdered after they had fled to other regions of Peru.
Fearing he would be next, Salazar-Paucar decided to leave the country. Immigration agents arrested him in 1992, when he entered the United States illegally at Brownsville, Texas. Three days later, he applied for asylum and withholding of deportation.
After several hearings, in which one other witness testified, Immigration Judge Nathan Gordon, now retired, issued an oral decision denying Salazar-Paucar's application.
Salazar-Paucar appealed to the Board of Immigration Appeals, which took six years to issue its decision upholding the immigration court judge's ruling.
The board noted that Salazar-Paucar had lived "unmolested" for 18 months in Lima. Although a death threat had been painted on his wall, the board said it found no evidence the threat was directed at Salazar-Paucar personally or that he had been harmed.
The board also relied on the passage of time, from the initial hearing in 1992 through the six years it took the board to render its decision, concluding that conditions had changed in Peru since 1992.
In reversing the board's decision, Paez wrote, "In sum, the death threats that petitioner received combined with the harm to members of his family and the murders of his political counterparts compel a finding of past persecution."
While it is true that Salazar-Paucar lived unmolested in Lima for nearly two years, Paez wrote, it is unlikely that the death threat found painted on the wall of his house was random graffiti as the board indicated.
"Thus, petitioner had a reasonable basis upon which to believe that the Shining Path still hunted him," Paez wrote.
The 9th Circuit chastised the board for not supplying any factual or legal analysis to conclude that the petitioner had not suffered past persecution or proffering evidence of changed country conditions.
In short, the court stated that the board provided nothing to indicate that conditions had changed in Peru to such an extent that Salazar-Paucar no longer has a well-founded fear that he would be persecuted if he were to return.
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Susan Mcraen
Daily Journal Staff Writer
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