Adela Hernandez-Ortiz v. Immigration and Naturalization Service
777 F.2d 509, 1985 U.S. App. LEXIS 25122 (1985)
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Rule of Law:
For a motion to reopen deportation proceedings to seek asylum, an alien establishes a prima facie case by submitting affidavits containing factual allegations that are not inherently unbelievable and which, if true, would establish a well-founded fear of persecution. Violence against an alien's family members by government forces can be sufficient to establish this fear and to infer persecution on account of political opinion, even if the alien has not been politically active.
Facts:
- Adela Hernandez-Ortiz, a citizen of El Salvador, entered the United States without inspection in September 1977.
- In November 1980, after her initial deportation hearing, Hernandez-Ortiz’s brother and his wife were murdered in El Salvador by government security forces.
- In November 1982, the INS erroneously deported Hernandez-Ortiz to El Salvador. Upon her return, she was detained by Salvadoran airport officials and had to pay a bribe to leave, leading her to believe she had come to the particular attention of the authorities.
- Shortly before her erroneous deportation in 1982, Salvadoran soldiers entered her grandparents’ grocery store, threatened them with submachine guns, and robbed them.
- In June 1983, members of the Salvadoran National Guard kidnapped, beat, and threatened to kill Hernandez-Ortiz's sister-in-law and also threatened her brother-in-law.
Procedural Posture:
- In August 1980, an immigration judge in a court of first instance found Adela Hernandez-Ortiz deportable.
- Hernandez-Ortiz appealed to the Board of Immigration Appeals (BIA), which dismissed her appeal in 1982.
- On November 1, 1982, Hernandez-Ortiz filed a petition for review of the BIA's deportation order with the U.S. Court of Appeals for the Ninth Circuit, which automatically stayed her deportation.
- Despite the stay, the INS erroneously deported Hernandez-Ortiz on November 5, 1982, and later arranged for her return to the U.S.
- In July 1983, Hernandez-Ortiz filed a motion with the BIA to reopen her deportation proceedings so she could apply for asylum and prohibition against deportation based on new evidence.
- The BIA denied the motion to reopen, concluding she had not established a prima facie case.
- Hernandez-Ortiz then petitioned the U.S. Court of Appeals for the Ninth Circuit for review of the BIA's denial of her motion to reopen.
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Issue:
Does the Board of Immigration Appeals abuse its discretion by denying a motion to reopen deportation proceedings where an alien submits affidavits, which are not inherently unbelievable, detailing specific acts of violence and threats by government forces against her family members?
Opinions:
Majority - Reinhardt, Circuit Judge
Yes, the Board of Immigration Appeals abused its discretion. For the limited screening purpose of a motion to reopen, the Board must accept the factual statements in a petitioner's affidavits as true unless they are inherently unbelievable. Hernandez-Ortiz’s detailed accounts of murder, kidnapping, and threats directed at her family by government forces are not mere 'conclusory assertions' and are sufficient to establish a prima facie case for a clear probability of persecution. The fact that a number of threats or acts of violence are directed against an alien’s family is sufficient to support the conclusion that the alien’s own life or freedom is endangered. Furthermore, when a government exerts its military force against a family with no apparent legitimate basis, the most reasonable presumption is that the actions are politically motivated, establishing persecution 'on account of political opinion,' regardless of the victim's actual political activities or beliefs.
Analysis:
This decision significantly lowers the evidentiary bar for aliens seeking to reopen deportation proceedings to apply for asylum. It establishes that an applicant's own credible affidavit detailing targeted violence against their family can be sufficient to establish a prima facie case, without requiring corroborating evidence at this initial stage. The ruling broadens the definition of persecution 'on account of political opinion' to include persecution based on the government's perceived political opinion of the victim, making it easier for individuals from countries with widespread civil strife to qualify for relief. This holding requires the Board of Immigration Appeals to give more weight to familial persecution and inferred political motives when screening motions to reopen.
