Martinez v. Holder - Opposition

Docket number: 
No. 09-665
Supreme Court Term: 
2009 Term
Court Level: 
Supreme Court

No. 09-665


In the Supreme Court of the United States






Solicitor General
Counsel of Record
Assistant Attorney General
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217



1. Whether there was substantial evidence to sup port the Board of Immigration Appeals' conclusion that petitioner had not satisfied his burden of establishing his eligibility for asylum because of an adverse credibil ity determination.

2. Whether the Board of Immigration Appeals abused its discretion in concluding that petitioner did not state a prima facie claim under the Convention Against Torture and Other Cruel, Inhuman or Degrad ing Treatment or Punishment, adopted Dec. 10, 1984, S. Treaty Doc. No. 20, 100th Cong., 2d Sess. (1988), 1465 U.N.T.S. 85.

In the Supreme Court of the United States

No. 09-665








The opinion of the court of appeals (Pet. App. 1-17) is reported at 557 F.3d 1059. A prior opinion (App., in fra, 1a-4a) is not published in the Federal Reporter but is reprinted in 72 Fed. Appx. 564. The orders of the Board of Immigration Appeals (Pet. App. 18-21; App., infra, 5a-9a) and the decision of the immigration judge (App., infra, 10a-30a) are not reported.


The judgment of the court of appeals was entered on March 3, 2009. A petition for rehearing was denied on September 8, 2009 (Pet. App. 22). The petition for a writ of certiorari was filed on December 7, 2009. The juris diction of this Court is invoked under 28 U.S.C. 1254(1).


1. a. The Immigration and Nationality Act (INA), 8 U.S.C. 1101 et seq., provides that the Secretary of Homeland Security and the Attorney General may, in their discretion, grant asylum to an alien who demon strates that he is a "refugee" within the meaning of the INA. 8 U.S.C. 1158(b)(1)(A). Congress vested the Sec retary with the authority to make asylum determina tions for aliens who are not in removal proceedings. Homeland Security Act of 2002, 6 U.S.C. 101 et seq.; see 6 U.S.C. 271(b)(3); see also 8 C.F.R. 208.2(a), 208.4(b), 208.9(a). The Attorney General is responsible for con ducting proceedings against an alien charged by the Department of Homeland Security (DHS) with being removable. 8 U.S.C. 1103(a)(1), 1229a(a)(1). Removal proceedings are conducted by immigration judges (IJs) within the Department of Justice, subject to appeal to the Board of Immigration Appeals (BIA). If an alien is unsuccessful in applying for asylum from DHS, his case is referred for institution of removal proceedings. The alien may renew his application for asylum before an IJ those proceedings.

The INA defines a "refugee" as an alien who is un willing or unable to return to his country of origin "be cause of persecution or a well-founded fear of persecu tion on account of race, religion, nationality, member ship in a particular social group, or political opinion." 8 U.S.C. 1101(a)(42)(A). The applicant bears the burden of demonstrating that he is eligible for asylum. 8 U.S.C. 1158(b)(1)(B)(i); 8 C.F.R. 1208.13(a), 1240.8(d). Once an alien has established asylum eligibility, the decision whether to grant or deny asylum is left to the discretion of the Secretary of Homeland Security or the Attorney General. 8 U.S.C. 1158(b)(1).

b. An alien applying for asylum may also be consid ered for withholding of removal to a particular country under 8 U.S.C. 1231(b)(3)(A) and for protection under the Convention Against Torture and Other Cruel, Inhu man, or Degrading Treatment or Punishment (CAT), adopted Dec. 10, 1984, S. Treaty Doc. No. 20, 100th Cong., 2d Sess. (1988), 1465 U.N.T.S. 85. See 8 C.F.R. 1208.16(c).

Withholding of removal is available if the alien dem onstrates that his "life or freedom would be threatened" in the country of removal "on account of [the alien's] race, religion, nationality, membership in a particular social group, or political opinion." 8 C.F.R. 1208.16(a) and (b). The burden of proof is on the alien. 8 C.F.R. 1208.16(b). In order to establish eligibility for withhold ing of removal, an alien must prove a "clear probability of persecution" upon removal, a higher standard than that required to establish asylum eligibility. INS v. Cardoza-Fonseca, 480 U.S. 421, 430 (1987). A failure to satisfy the lesser standard of eligibility for asylum nec essarily constitutes a failure to satisfy the more strin gent standard for withholding of removal. See Fisher v. INS, 79 F.3d 955, 960 (9th Cir. 1996) (en banc).

In addition, an alien who demonstrates that he would more likely than not be tortured if removed to a certain country may obtain CAT protection. To qualify for CAT protection, the applicant must prove that the acts al leged to constitute torture would be inflicted "by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official ca pacity." 8 C.F.R. 1208.18(a)(1); see, e.g., Zheng v. Ash croft, 332 F.3d 1186 (9th Cir. 2003). The burden of proof is on the applicant to show that it is more likely than not that he would be tortured in the proposed country of removal. 8 C.F.R. 1208.16(c)(2).

c. A determination of adverse credibility is equiva lent to a finding that an asylum applicant failed to carry his burden of proof and results in the denial of his claims. Under Ninth Circuit precedent, "[t]he BIA must have a legitimate articulable basis to question the peti tioner's credibility, and must offer a specific, cogent rea son for any stated disbelief." Valderrama v. INS, 260 F.3d 1083, 1085 (2001) (internal quotation marks omit ted) (quoting Shah v. INS, 220 F.3d 1062, 1067 (9th Cir. 2000)).

In addition, a number of circuits, including the Ninth Circuit, have held that inconsistencies, inaccuracies or omissions can be the basis for adverse credibility find ings only if they are material and go to the "heart" of petitioner's claim. See, e.g., N'Diom v. Gonzales, 442 F.3d 494, 503 (6th Cir. 2006) (referring to discrepancy as going to "heart of [applicant's] claim"); Singh v. Gonza les, 439 F.3d 1100, 1105 (9th Cir. 2006) (minor inconsis tencies are not sufficient; the reason for an adverse credibility determination "must 'strike at the heart of the claim' for asylum"); Toure v. Ashcroft, 400 F.3d 44, 48 (1st Cir. 2005) (inconsistencies described as "not mi nor" but going to "the heart of [applicant's] credibility").

In 2005, Congress changed the law related to credi bility determinations. It provided that for asylum cases commenced after May 11, 2005, an IJ may reject an alien's claims based on an adverse credibility finding "without regard to whether an inconsistency, inaccu racy, or falsehood goes to the heart of the applicant's claim, or any other relevant factor." REAL ID Act of 2005 (REAL ID Act), Pub. L. No. 109-13, Div. B, § 101(a)(1), 119 Stat. 303 (8 U.S.C. 1158(b)(1)(B)(iii)).

d. An alien may obtain judicial review of a final agency decision to deny asylum, withholding of removal, or CAT protection through a petition for review in the court of appeals. See 8 U.S.C. 1252(a). A determination by the BIA can be reversed only if the evidence is such that a reasonable factfinder would be compelled to reach the opposite conclusion. 8 U.S.C. 1252(b)(4)(B); INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992).

2. Petitioner is a native and citizen of Guatemala. Pet. App. 1. He entered the United States without in spection in May 1992. See App., infra, 35a. In Septem ber 1992 he filed an application for asylum and withhold ing of removal. Pet. App. 3. In that application he claimed that he had been persecuted for political activi ties as a student leader at the University of San Carlos. Ibid. Specifically, he alleged that he was threatened and that a number of his companions had disappeared. App., infra, 12a. He signed the application under penalty of perjury, avowing that the contents were "true and cor rect to the best of my knowledge and belief." Pet. App. 3. In 1995 he testified under oath to an asylum officer, who assured him that their interview was confidential. Id. at 4, 8. Petitioner reiterated his claim that he was a victim of persecution "on account of my political opin ion." Id. at 4. He also swore to the officer that the con tents of his original application were true. Ibid. The officer found him ineligible for asylum and referred him for removal proceedings. Id. at 5-6.

3. The Immigration and Naturalization Service (INS) charged petitioner with being deportable as an alien who entered without inspection.1 App., infra, 34a- 48a; see 8 U.S.C. 1251(a)(1)(B) (1988).

At the first session of his removal hearing, on March 26, 1996, petitioner, through counsel, told the IJ that his application "was filled out by a notary and it has prob lems," and that he would file a "sworn declaration" with different facts and an explanation of why the ones in the application were not correct. App., infra, 32a-33a. On April 23, 1996, petitioner filed a declaration claiming that he had been persecuted in Guatemala because he is a homosexual. Pet. App. 16. He alleged that he had been beaten, kicked, and raped. App., infra, 15a-18a. During the course of his hearing, petitioner submitted testimony about the treatment of homosexuals in Guate mala and testified himself. Id. at 20a, 22a. He stated that he had fabricated the detailed story he told in his application and to the asylum officer because his "life was in danger." Pet. App. 7.

The IJ in April 1997 found petitioner not credible and denied asylum, withholding of removal, and volun tary departure. Pet. App. 9-11. The IJ explicitly stated that he did not find credible the explanation petitioner gave for the "dramatically inconsistent" claims he pre sented, "[i]n light of [petitioner's] intelligence and more than three years time in the Los Angeles area [i.e., be tween his application in 1992 and his asylum interview in 1995] during which time he appears to have freely asso ciated with other gays and to have had no untoward dif ficulties with governmental authorities." Id. at 9-10.

The IJ noted that petitioner had not just neglected to present a claim as a homosexual prior to his removal hearing but affirmatively set forth another claim that he knew to be untrue. Pet. App. 9-10. The IJ explained that whatever bad experiences petitioner may have had in another country, he was not entitled to lie to a govern ment official here to secure benefits, particularly when he had had "no untoward difficulties with governmental authorities" in the United States. Id. at 10. The IJ de nied voluntary departure on statutory grounds, deter mining that petitioner could not demonstrate good moral character, having given false testimony in order to ob tain a benefit under the INA. Ibid.; see 8 U.S.C. 1101(f)(6); 8 U.S.C. 1229c(b)(1)(B).

In April 2002 the BIA dismissed petitioner's appeal, holding that his two accounts were inconsistent and re jecting petitioner's "'explanations for this discrepancy.'" Pet. App. 11. In July 2003, a divided panel of the Ninth Circuit ruled that the BIA had "failed to provide cogent reasons for rejecting [petitioner's] testimony in support of his application," and remanded for further consider ation. Id. at 1-2; App., infra, 1a-4a.

4. On remand, in May 2004, the BIA again dismissed petitioner's appeal. Pet. App. 18-21. The BIA deter mined that petitioner "failed to sustain his burden of proof * * * as the result of his lack of credibility * * *. We find [his] discrepancy material as it goes to the heart of [his] asylum claim." Id. at 19. The BIA did not find "persuasive" petitioner's "justification" for first claiming persecution on account of political opinion and then retracting that and claiming persecution on account of sexual orientation. Id. at 19-20.

The BIA adopted the IJ's decision "as the [IJ] articu lated cogent reasons for his adverse credibility finding." Pet. App. 20. The BIA also denied petitioner's motion to reopen to seek protection under the CAT, finding that he failed to establish a prima facie case, and "[i]n partic ular" failed to show that it was more likely than not that he would be tortured by government officials if returned to Guatemala. Id. at 21.2 Petitioner filed a petition for review with the Ninth Circuit challenging both the ad verse credibility finding and the denial of his motion to reopen to seek CAT protection. Id. at 2.

5. a. In March 2009, the Ninth Circuit denied the petition for review. Pet. App. 1-2. It said that "[t]he facts pertaining to [petitioner's] credibility-or the lack thereof-are striking." Id. at 3. The court noted that petitioner submitted his original request for asylum, in which he falsely claimed political persecution in Guate mala, under penalty of perjury. Then, "[t]he next step in what turns out to have been a plot to deceive the Im migration and Naturalization Service, the United States Department of Justice, and the Attorney General was to foil the asylum officer assigned to his case." Id. at 4.

The court of appeals noted that before the asylum officer, petitioner again falsely said that he had been the victim of persecution in Guatemala because of his politi cal activities. Pet. App. 4. It quoted at length from the officer's report summarizing petitioner's testimony and said it found "noteworthy" both "the level of invented detail with which [petitioner] presented his false claim" and "his ability to convince an experienced asylum offi cer that his swindle was credible." Id. at 6. The court continued by noting that the officer nonetheless recom mended against asylum eligibility, so petitioner "simply changed his tune, shed his first yarn, and showed up three months later for a hearing before an IJ, armed with an entirely new ground designed to make him eligi ble for asylum." Id. at 6-7.

The court of appeals thus concluded that petitioner "repeatedly and persistently lied under oath" and that "his skillful lies were material and went to the heart of his presentation." Pet. App. 13. The majority also found that the reasons for the adverse credibility finding "bear a legitimate nexus" to the decision to deny asylum, are "cogent," and are "well supported by substantial uncon troverted evidence in the record." Ibid.

The court went on to observe that the asylum process is "ultimately an honor system" that depends on the as sumption that asylum seekers would take the oath seri ously and be truthful. Pet. App. 13. It stated that, "in order for the process to work, we must construe and enforce the oath strictly." Id. at 14.

Finally, the court held that "the BIA did not abuse its discretion in concluding that Martinez failed to estab lish a prima facie case that warrants reopening under the [CAT]." Pet. App. 14 n.1.

b. Judge Pregerson dissented from the decision to sustain the asylum denial. In his view, "it is easy to un derstand how Martinez might have felt compelled to tailor his story to avoid being returned to Guatemala, where he suffered persecution on account of his sexual orientation." Pet. App. 15. Judge Pregerson reasoned that persecution on account of sexual orientation was not recognized as a valid basis for an asylum claim when Martinez filed his application in 1992, and that prior to the enactment of the Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, homosexuality was a ground of exclusion.3 Pet. App. 14-15. Judge Pregerson found that under circuit precedent the IJ had not given cogent and sufficient reasons for his adverse credibility finding. Id. at 16. He did not comment on petitioner's CAT claim.

6. A petition for rehearing was denied in an unpub lished order. Pet. App. 22.


1. Petitioner presents no issue warranting this Court's review. He claims there is a circuit split on the question "whether a false statement that does not go to the heart of an alien's operative asylum application" (made before the effective date of the REAL ID Act) "automatically disqualifies an asylum applicant from relief." Pet. i. In his view, the Ninth Circuit in the deci sion below answered that question in the affirmative, adopting "a per se rule that * * * a false statement made in the course of seeking asylum may bar relief whether or not the false statement actually goes to the heart of the applicant's operative asylum application." Pet. 7-8. The Ninth Circuit did not adopt the view as cribed to it by petitioner, and there is no circuit split.

The court of appeals in this case concluded that it "goes without saying" that petitioner's misrepresenta tions did go "to the heart" of his request for asylum. Pet. App. 13; see id. at 19 (BIA concluding that misrep resentations went "to the heart of the * * * asylum claim"). Thus, the court evaluated petitioner's claim under the more applicant-friendly standard he favors and still found it wanting.

Petitioner believes that his misrepresentations did not in fact go to the "heart" of his request. Pet. 10-11. The lower court, however, found substantial evidence supporting the BIA's conclusion to the contrary, based on the specificity and brazenness of petitioner's misrep resentations, the timing of his decision to replace them with a newly-minted story of persecution, and the unpersuasiveness of his explanation for the change. Pet. App. 3-13. To reverse that finding, petitioner would have to show that "the evidence not only supports" his view of the case, "but compels it." INS v. Elias-Zacar ias, 502 U.S. 478, 481 n.1 (1992). He cannot surmount that high hurdle, and, in any event, the factbound ques tion of whether petitioner's false statements "went to the heart" of his application for asylum is not appropri ate for this Court's review.

Petitioner cites cases in which courts have held that an applicant's misrepresentations were too trivial or unrelated to warrant an adverse credibility determina tion. Pet. 9 & n.4. Petitioner fails to recognize the in herently fact-intensive, case-by-case nature of credibil ity determinations. None of the cases petitioner cites adopts a "per se rule" stating that an applicant's admit ted and extensive false statements made at an earlier stage of an asylum application proceeding can never provide a basis for an adverse credibility determination.4 Similarly, nothing in the Ninth Circuit's decision in this case adopts a "per se rule" that earlier misrepresenta tions must always lead to an adverse credibility determi nation.

There is thus no circuit split (or "intracircuit con flict[]" within the Ninth Circuit). Pet. 12. Instead, all these courts conduct case-by-case reviews of fact-inten sive credibility determinations by IJs and the BIA and determine, based on the unique facts and circumstances of each case, whether those determinations are sup ported by substantial evidence.

2. Petitioner acknowledges that the REAL ID Act changed the rules governing credibility determinations for asylum cases (unlike his) commenced after May 11, 2005. Pet. 8. That statute provides in relevant part that "a trier of fact may base a credibility determination on * * * any inaccuracies or falsehoods in [an applicant's] statements, without regard to whether an inconsistency, inaccuracy, or falsehood goes to the heart of the appli cant's claim." READ ID Act § 101(a)(1), 119 Stat. 303 (8 U.S.C. 1158(b)(1)(B)(iii)).

That statute "implemented an important substantive change concerning the kinds of inconsistencies that may give rise to an adverse credibility determination." Shrestha v. Holder, 590 F.3d 1034, 1043 (9th Cir. 2010). In particular, under the statute, "[i]nconsistencies no longer need to 'go to the heart' of the petitioner's claim to form the basis of an adverse credibility determina tion." Ibid.

Petitioner is correct that there remain pre-REAL ID Act cases before the agency and the courts, Pet. 14, but the number of such cases is necessarily declining. Espe cially given the absence of a circuit conflict and the in herently fact-bound nature of the issue, there is no rea son for the Court to devote a portion of its limited re sources to addressing the standard for credibility deter minations in a pre-REAL ID Act case like this one. Whatever guidance such a decision provided would have a limited practical effect as more and more asylum cases were evaluated under the new statutory standard.

3. Petitioner also contends (Pet. 15-20) that the Ninth Circuit erroneously denied him CAT protection solely due to the adverse credibility finding made with respect to his asylum application, and that this Court should resolve a circuit split on the issue of whether an adverse credibility determination concerning asylum "automatically disposes of" a claim for CAT protection. Pet. 15.

Petitioner concedes (Pet. 16), however, that the Ninth Circuit's decision affirming the BIA on this issue consists of only a "single-sentence footnote" stating that the "BIA did not abuse its discretion in concluding that Martinez failed to establish a prima facie case." Ibid. (quoting Pet. App. 14 n.1). Neither the BIA nor the Ninth Circuit cited the adverse credibility finding as a basis for denying petitioner's CAT claim. The BIA might have found that petitioner's CAT claim was defi cient for some other reason. See, e.g., Kamalthus v. INS, 251 F.3d 1279, 1283 (9th Cir. 2001) (CAT applicant must demonstrate it was " 'more likely than not' that he * * * will be tortured, and not simply persecuted upon removal.").

In any event, the Ninth Circuit's unexplained deci sion would provide a poor vehicle for review of peti tioner's CAT claim, especially in light of the fact that when the Ninth Circuit did explicitly address the ques tion in another case it adopted the position favored by petitioner. See Pet. 19 (citing Kamalthas, 251 F.3d at 1283). Any intra-circuit conflict between other Ninth Circuit decisions and that court's brief disposition of the CAT issue here would not warrant review by this Court.


The petition for a writ of certiorari should be denied.

Respectfully submitted.

Solicitor General
Assistant Attorney General


1 The INS's immigration-enforcement functions have since been transferred to the DHS. See 6 U.S.C. 251.

2 Petitioner was unable to bring a CAT claim at his original hearing because that remedy was not available until 1999. Pet. 5 n.2. However, he could have filed a motion to remand on that basis before the BIA is sued its first decision in April 2002. 8 C.F.R. 1208.18(b)(1).

3 This statement is incomplete. In re Toboso-Alfonso, 20 I. & N. Dec. 819 (B.I.A. 1990), a Cuban asylum applicant was granted withholding of removal based on his membership in a particular social group, homo sexuals. Toboso-Alfonso was decided in 1990 and was designated a precedential decision by the Attorney General on June 19, 1994, prior to petitioner's 1995 interview with an asylum officer. Id. at 819 n.1.

4 In Guo v. Ashcroft, 386 F.3d 556, 562 (2004), the Third Circuit con cluded there was insufficient evidence to support the BIA's adverse credibility determination. That determination had been based on a finding of lack of credibility in connection with an earlier request for asylum, and "[n]o one ha[d] explained how the IJ's adverse credibility findings implicated Guo's motion to reopen on a ground not previously dealt with by the IJ." Ibid. Here, by contrast, the BIA expressly ex plained the connection between the two stages of petitioner's proceed ings. It concluded that the explanation petitioner offered-in the stage of his proceeding at issue here-for his prior false statements and for his decision to request asylum on an entirely new basis was not credible. Pet. App. 19-20. The other cases petitioner cites as supporting his position are either entirely inapposite or turn on the courts' intensive review of the records before them. See Ucelo-Gomez v. Gonzales, 464 F.3d 163, 167 (2d Cir. 2006) (court could not determine "whether (or how)" adverse credibility determination "bears upon matters that go to the heart of [the] claim" because there was "a more fundamental problem" with BIA decision related to whether applicant was member of protected social group); Diallo v. Gonzales, 445 F.3d 624, 630 (2d Cir. 2006) (IJ's "adverse credibility finding was supported by substantial evidence" as he "was not required to accept [applicant's] explanation" for "inconsistent statements"); Uanreroro v. Gonzales, 443 F.3d 1197, 1211 (10th Cir. 2006) (lies told to enter country can support adverse credibility determination but did not when considered in light of "the 'totality of the circumstances' surrounding [the] asylum applicant's claim"); N'Diom v. Gonzales, 442 F.3d 494, 496 (6th Cir. 2006) (case did not involve any false statements by applicant, only "omissions to state a particular detail" in earlier statements); Shtaro v. Gonzales, 435 F.3d 711, 716 (7th Cir. 2006) (court addressed alleged inconsistencies between applicant's statements and letters written by others, not inconsistencies in applicant's own sworn statements); Mece v. Gonzales, 415 F.3d 562, 572-578 (6th Cir. 2005) (detailed discussion of record and explanation why substantial evidence did not support IJ's adverse credibility determination).




No. 02-71478

Agency No. A70-217-803









DECIDED: JULY 25, 2003











Saul Martinez, a native and citizen of Guatemala, petitions for review of the decision by the Board of Im migration Appeals denying his application for asylum and request for withholding of deportation. We have

jurisdiction under 8 U.S.C. § 1105a (repealed 1996) and we grant the petition.

As both parties conceded, the BIA undertook an in dependent analysis of Martinez's testimony and "agreed with," but did not adopt, the IJ's decision that Marti nez's description of past persecution was not credible. See Cordon-Garcia v. INS, 204 F.3d 985, 990 (9th Cir. 2000) ("Where the BIA reviews the IJ's decision de novo, our review is limited to the BIA's decision, except to the extent the IJ's opinion is expressly adopted."). The adverse credibility determination resulted from Martinez's misrepresentation on his initial asylum appli cation that he had been persecuted based on political belief, rather than sexual orientation. He explained the misrepresentation was due to a fear of facing further persecution if the government learned of his sexual ori entation.

The BIA provided no "specific cogent reasons" for rejecting this justification. Valderrama v. INS, 260 F.3d 1083, 1085 (9th Cir. 2001). Moreover, "misrepre sentations [that] are wholly consistent with [petitioner's] testimony and application for asylum" do not support a negative credibility finding. Akinmade v. INS, 196 F.3d 951, 955 (9th Cir. 1999); see also Paramasamy v. Ashcroft, 295 F.3d 1047, 1053 (9th Cir. 2002). Because the BIA stated only that it was "not persuaded by re spondent's explanations" and provided no legitimate, let alone cogent, reason for rejecting Martinez's "wholly consistent" misrepresentation, we remand for proceed ings consistent with this disposition.



KLEINFELD, Circuit Judge, dissenting. KLEINFELD, Circuit Judge.

I respectfully dissent. The BIA rejected Martinez's credibility because _the claim the respondent presented before the asylum officer was inconsistent with the one he pursued at the hearing._ He had fair notice from the IJ's decision of this reason for rejecting his credibility, and tried to explain it away in his appeal to the BIA, but the BIA was _not persuaded by the respondent's expla nations for this discrepancy._

Martinez twice lied under oath to the INS. He in vented a story about having been a member of a stu dent-led political activist group. As he later admitted, this story was entirely untrue. Such _material misstate ments of fact_ and _gross inconsistencies_ in an applica tion for asylum that _involve[ ] the heart of the asylum claim_ may provide substantial evidence for an adverse credibility finding. Ceballos-Castillo v. INS, 904 F.2d 519, 520 (9th Cir. 1990).

In Ceballos, we explicitly distinguished such false hoods from the incidental falsehoods told in Turcios v. INS, 821 F.2d 1396 (9th Cir. 1987). The majority relies on Akinmade v. INS, 196 F.3d 951 (9th Cir. 1999) for the proposition that Martinez's previous lies are _wholly consistent_ with his claim of fear of future persecution. Akinmade, relying on Turcios, addresses a different situation than that in the case at bar. Here, as in Ceballos, the asylum applicant did not lie about his coun try of origin or incidental details of his past, but rather completely invented the entire basis for his claim for asylum. His previous story cannot be _wholly con sistent_ with his current story, since he has admitted the previous story to be entirely false. Rather, this is the _180 degree_ change that we held in Ceballos-Castillo to be substantial evidence for an adverse credibility find ing.

The IJ articulated a legitimate, cogent reason for his adverse credibility finding, namely the fact the Martinez lied to the INS in his prior application, and the BIA clearly adopted that reason as well, noting as it did that it was unpersuaded by Martinez's attempt to explain that reason away. The deferential standard of review requires that we deny the petition.




U.S. Department of Justice Decision of the Board Executive Office for of Immigration Appeals

Immigration Reviewd


Falls Church, Virginia 22041


Date: [Apr. 30, 2002]


File: A70 217 803 - Los Angeles









Assistant District Counsel


Order: Sec. 241(a)(1)(B), I&N Act [8 U.S.C. § 1251(a)(1)(B)]-Entered without inspec tion

APPLICATION: Asylum; withholding of deportation


PER CURIAM. The respondent appealed the Immi gration Judge's decision of April 4, 1997, which denied his applications for asylum and withholding of deporta tion under sections 208(a) and 243(h) of the Immigration and Nationality Act ("Act"), 8 U.S.C. §§ 1158(a), 1253(h). We deny the request for oral argument. See 8 C.F.R. § 3.1(e). The appeal is dismissed.

The question presented in this case is whether the respondent has presented a credible testimonial claim sufficient to satisfy his burden of proof in establishing his eligibility for asylum. The Immigration Judge de nied the respondent's asylum application on the basis of an adverse credibility finding. See Salaam v. INS, 229 F.3d 1234 (9th Cir. 2000); Matter of A-S-, 21 I&N Dec. 1106, 1109 (BIA 1998). The Immigration Judge noted that the claim the respondent presented before the asy lum officer was inconsistent with the one he pursued at the hearing. We are not persuaded by the respondent's explanations for this discrepancy. See I.J. at 17-19; Re spondent's Brief on Appeal, September 18, 1998.

We agree with the Immigration Judge that the re spondent failed to establish past persecution or a well- founded fear or clear probability of persecution in Gua temala based on one of the five protected statutory grounds of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. §§ 1158, 1253(h); INS v. Cardoza-Fonseca, 480 U.S. 421 (1987), Valderrama v. INS, 260 F.3d 1083 ( 9th Cir. 2001); Paredes-Urrestarazu v. INS, 36 F.3d 801 (9th Cir. 1994); Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987).


Accordingly, the Immigration Judge's decision is affirmed and the appeal is dismissed.





U.S. Department of Justice Decision of the Board Executive Office for of Immigration Appeals

Immigration Review


Falls Church, Virginia 22041


Date: [Apr. 30, 2002]

File: A70 217 803 - Los Angeles


In re: Martinez




In this case, the respondent on two separate occa sions, in 1992 in writing and in 1995 in testimony before an Immigration asylum officer, submitted false applica tions for asylum under penalty of perjury based on a fabricated claim that he was persecuted by the govern ment of Guatemala because he was the leader of a politi cal student group at the University of San Carlos.

The respondent left Guatemala in November 1991 and came to the United States where he lived in Califor nia openly as a homosexual for several years before fil ing his present asylum claim based on a series of inci dents in Guatemala in which he was physically assaulted and raped on account of his homosexuality by members of the Guatemalan police and thugs hired by the wife of a Guatemalan congressman who learned of the respon dent's affair with her husband. See IJ at 5-10. The re spondent also introduced testimony from an expert on homosexual males in Guatemala who testified that re spondent, as a visibly effeminate homosexual, would be at risk of harm in Guatemala due to its "machismo" cul ture and from the police, many of whom have a "hunting license" attitude toward homosexuals, and that a homo sexual cannot expect redress from the Guatemalan courts. IJ at 12-14.

The Immigration Judge concluded, as do the major ity, that due to the fact the respondent's latest asylum claim is markedly different from his earlier claims, he lacks credibility as to his current claim. I, however, am inclined to credit his current claim and to believe that he established eligibility for asylum. See Matter of OZ & IZ, 22 I&N Dec. 23 (BIA 1998); Matter of Toboso- Alfonso, 20 I&N Dec. 819 (BIA 1990).

I would nonetheless deny asylum in the exercise of discretion. While discretionary denials are rare, the respondent in this case committed perjury in an effort to obtain an immigration benefit. Moreover, he offered no persuasive explanation for why, not under compulsion of being in proceedings or subject to a time restriction on the filing of an asylum application, he twice submitted false applications. See Matter of Pula, 19 I&N Dec. (BIA 1987). See also IJ at 17 (finding, as do I, that resp0ndent's "'explanation" for his prior claims is in credible).

I therefore respectfully concur.




Board Member












14. File No.: A 70 217 803












16. Date: Apr. 4, 1997





CHARGE: 241(a)(1)(B)-entry without in spection.


APPLICATIONS: Asylum, withholding, voluntary departure in lieu of deportation.








The Respondent is a thirty-two year old male alien, native and citizen of Guatemala who entered the United States on May 14, 1992 without inspection. In pleading to the Order to Show Cause dated November 17, 1995, (Exh. No. 1), Respondent admitted the factual allega tions while conceding and I'm satisfied that he's deportable on the charge set forth therein. Respondent declined to designate a country of deportation. I di rected deportation to Guatemala.

Respondent submitted a request for asylum and/or withholding of his deportation to Guatemala dated Sep tember 21, 1992, (Exh. No. 2). That request was for warded to the Department of State on November 14, 1995, which did not provide any specific response (Exh. 3). Attached to Respondent's original application for asylum is an amended application which notes that infor mation contained in block numbers 18 through 21 is in correct and that the correct information is contained in Respondent's declaration. Referring to Respondent's declaration dated April 23, 1996, which was admitted into evidence as Exhibit No. 4.

Respondent submitted additional documentation in support of his application for relief (Exh. No. 5). Re spondent also presented a vitae or resume for Steven O. Murray (Exh. No. 6) and Heather H. McClure (Exh. No. 7), both of whom testified during the proceedings, Re spondent's birth certificate (Exh. No. 8), and a letter of recommendation from Peter E. Riess, an account man ager at Respondent's place of employment (Exh. No. 9). Mr. Riess as well as Respondent's life partner, Charles Coleman also testified on behalf of Respondent's appli cations for relief.

The Service presented two Department of State pro files for Guatemala dated May, 1996, (Exh. No. 10) and February, 1997, (Exh. No. 11). A copy of Respondent's Request for Asylum is marked up by the INS asylum officer who interviewed the Respondent (Exh. No. 12). A copy of the asylum officer's interview notes (Exh. No. 13) for identification purposes only and the typed as sessment of the asylum officer dated November 14, 1995, (Exh. No. 14). The Service also presented the tes timony of that asylum officer, John Jaworski.

In his written request for asylum dated September 21, 1992, (Exh. No. 2), Respondent stated that he was seeking asylum "because in Guatemala I was threatened by the government because I was in the University of San Carlos. I was leader of the students in the Univer sity of San Carlos and for this reason the government persecuted and threatened me. I am afraid to return to Guatemala because many of my companions to disappear completely and I can too disappear likewise and I was constantly threatened by the government and my life was in more danger than the rest of the people of my country. If I didn't leave I would have been killed. The constant conflicts that exit in Guatemala, no security for anyone. In my case that I belonged to student groups is very hard to live in Guatemala." Respondent further stated in this application that he belonged to this stu dent group from 1986 to 1991 and that his duties were to organize political meetings and the students.

On September 21, 1992, Respondent signed his writ ten request for asylum declaring under penalty of oath that the above and all accompanying documents are true and correct to the best of his knowledge and belief, (Exh. No. 2). On November 13, 1995, Respondent again signed the above request for asylum, this time before an INS asylum officer. On this occasion Respondent swore that he knew the contents of this application which he was signing and that they were true to the best of his knowledge (Exh. No. 12). Respondent provided addi tional circumstances at the INS asylum interview which the interviewing asylum officer summarized as follows: "Applicant credibly testified that in January, 1991 he became a leader in a student club at San Carlos Univer sity. Applicant stated that he began having problems due to his political opinion after participating in Mardi Gras type parades with political overtones. Applicant began receiving threatening phone calls in January, 1991, and believed that agents of the government were responsible. Applicant did not state a political opinion in response to the phone calls. Applicant stated that the calls persisted through June, 1991, when Applicant went to visit his parents in Puerto Barios (phonetic sp.). Ap plicant did not experience any problems in Puerto Barios, stated that it was a remote little town far from Guatemala City. In August, 1991, Applicant was chased by a car. Applicant was not harmed although he be lieved the government was responsible. In November, 1991, Applicant was again chased by a car and shot at. Applicant was not harmed and believed that the govern ment was trying to scare him. Applicant left Guatemala the next day and traveled through Mexico prior to com ing to the United States. Applicant further stated that he has a brother who is currently living in Guatemala City and not experiencing any problems with the gov ernment. Applicant's family is presently living in Puerto Barios and not experiencing problems with the govern ment." (Exh. No. 14)

Respondent's written declaration dated April 23, 1996, (Exh. No. 4) and his testimony at these deporta tion proceedings reflect the following: In his detailed declaration dated April 23, 1996, (Exh. No. 4) and his subsequent testimony Respondent set forth the basis of his claims for relief before this Court. Respondent de scribed his experience as a young child, his relationship with various family members, his first homosexual expe rience at the age of 12 with a man who visited his home town of Puerto Barios, and subsequent experiences at about the age of 14 with teenage boys in the same town. When it became clear to the Respondent that his imme diate family was unable to accept his homosexuality Re spondent moved to the home of a paternal uncle, his wife and their adopted son. About six months later the uncle and his wife died in an auto accident. In January, 1980 Respondent with the assistance of his cousin enrolled at an expensive school for the children of wealthy people (Respondent's cousin who is the sole beneficiary of his deceased father's estate acted pursuant to his father's prior direction in making arrangements for Respondent to attend this school). Respondent described his experi ence as a gay person at the school and his subsequent relationship with one of the teachers, Miguel Cerna. When Respondent reached the tenth grade he changed schools as his cousin wanted Respondent to study ac counting. When Respondent's cousin learned about Re spondent's relationship with Mr. Cerna, the cousin asked Respondent to leave the house in which Respon dent had been living with this cousin. Respondent moved in with Mr. Cerna in the same hometown of Puerto Barios. In 1984 Respondent and Mr. Cerna moved to Guatemala City. His life had become very hard in Puerto Barios where people were reluctant to talk to Respondent presumably out of fear that they would be accused of being gay. In Guatemala City Re spondent sensed he had initial difficulty getting work in that city because he was effeminate (at the outset of his declaration Respondent described himself as being a relatively effeminate man and later in his declaration he speculates that he initially had difficulty obtaining work in Guatemala City due to this characteristic). Respon dent was finally hired as a warehouseman, delivery man at the international airport through the assistance of a friend who was the brother-in-law of the airport man ager. One year later Respondent was promoted to assis tant sales man. Although Respondent enjoyed an "okay" working relationship with his fellow employees they sometimes made jokes about Respondent's life style. In December, 1988 two airport policemen beat up the Respondent, specifically, at about 7 p.m. the airport policemen approached the Respondent who was stand ing at a bus stop about one block from his place of em ployment. The airport police then asked Respondent if he had a girlfriend, whether he liked men. One of the policemen then hit Respondent in the stomach. When another policeman tried to kick Respondent between the legs, Respondent crossed over and thus the kick landed on Respondent's hip. When the policeman challenged Respondent to show them he was a man, Respondent threatened to report them to which they responded that Respondent did not dare, that he should remember they could remove him from the face of the earth. As a result of this altercation Respondent's breath was taken away and he experienced pain for a week. He did not go to any hospital nor did he report the incident to authorities as he assumed that their superiors would not help a gay person. In June, 1989, police harassed Respondent a second time. On this occasion Respondent went into a washroom at work to wash his hands, two airport police men entered and were standing to Respondent's left. Respondent looked over and saw that one of the police man had taken out his penis and was holding it. As Re spondent looked over, the policeman said, "Hey, sissy, don't you want it?" When the other policeman pushed Respondent into the corner someone else also entered the men's room and Respondent ran out. Respondent was not harmed on this occasion and did not report the incident to any authority. In March, 1990 some city po lice harassed the Respondent. Specifically, three police men approached the Respondent from the rear as he crossed the street to a bus stop. The policemen threw Respondent .to the ground, kicked him and one of them called the Respondent a butterfly. When Respondent attempted to run away one of the officers grabbed him by the shirt and shoved him against a wall. Then Re spondent ran away, eventually boarded a bus, bleeding from his nose and mouth and went home. As a result of this incident Respondent suffered a swollen mouth and bruises to his chest and leg. He did not go to any hospi tal for medical treatment and did not report the incident to authorities as he was afraid to report it as he assumed he wouldn't get help. In May, 1990, Respondent met a Guatemalan congressman, Roberto Diaz and they began a sexual relationship with each other. Diaz's initial in terest in Respondent as well as Respondent's initial in terest in Diaz was sexual and thus they did engage in consensual sex. Two months later Diaz invited Respon dent to his farm where they again had sex. The workers at the farm knew that Diaz and Respondent slept in the same bedroom. While at the farm, Diaz told Respondent that he was a congressman and married. Up to that point Respondent thought Diaz was not married. Upon hearing that Diaz was married, Responded resolved to end the relationship but did not tell Diaz. Respondent also testified that Mr. Diaz had adult children. In any event, the next time Respondent saw Diaz the latter informed Respondent that his wife knew about Respon dent and that the two of them had spent the weekend at the farm. Respondent did not respond to that. When Mrs. Diaz phoned Respondent at work, Respondent told her that Diaz was his friend to which Mrs. Diaz re sponded "that's bullshit" and warned Respondent that she had influence and could do anything to Respondent. Two weeks later as Respondent was returning home a government car stopped next to Respondent and three men got out and began to beat Respondent. The men referred to Respondent using a Spanish word which was roughly equivalent to "queer" and "faggot". When a neighbor came out the men left. Respondent suffered bruises on his stomach, chest, arms and a swollen fore head. Respondent did not go to a hospital but self- treated himself with some ice, staying home for two days. Respondent who felt lost and terrified that these men beat him because, one, Respondent was gay; two, Mrs. Diaz put them up to it because Respondent was gay and allowed her husband to have this conduct; and three, Mrs. Diaz was upset about the fact that Respondent, a gay person, had had an affair with her husband. Two weeks later Respondent received a call at work from the person who had beaten him. The caller told Respondent "this time you were lucky, the next time you will be worse". Respondent then phoned Diaz and told him what had happened. Diaz admitted that his wife was responsible for both the beating and the phone call and then hung up on the Respondent. That same day Re spondent resigned from his job and went to live with a friend, Rudy. In October, 1991, Respondent and Rudy went out to a restaurant/bar to celebrate Halloween where they overheard some people tell some other peo ple that they were army members, that "maricones" are full of AIDS and that these other people (apparently some gays) were the cause of the disease. Before there was any problem Respondent and Rudy decided to leave the restaurant. In November, 1991, a government car pulled up to Respondent as he was walking home. Diaz, who was at the wheel told Respondent to get in. When Respondent declined two armed men got out of the car and pushed Respondent into the car. Diaz drove to a motel where Diaz paid for a room and the two men forced Respondent to undress and enter the bedroom where Diaz raped the Respondent without any protec tion or lubricant. The latter circumstance hurt the Re spondent. Respondent claims that Diaz told Respondent that if Respondent didn't do as Diaz told him his two bodyguards would kill Respondent. (Respondent claims that on previous sexual encounters there had been pro tection as Respondent who appreciated the danger of AIDS provided the protection. Respondent claims that he and Diaz had never discussed the subject of AIDS.) After some time Diaz dressed and left in the car and Respondent took a bus home. Respondent does not know why Diaz raped him. Respondent assumes that Diaz is a predator. Respondent acknowledges that Diaz never expressed any interest in Respondent other than to satisfy Diaz's sexual urges. Respondent also acknowl edges that he, the Respondent, previously had had sex with other men in Guatemala, both as a penetrator and penetratee. Respondent noted that Diaz's bodyguards had removed his address book from his pants pocket and thus were able to learn Respondent's address. Given all these events Respondent contacted a friend in Los An geles named Alfredo. Respondent had met Alfredo while the latter had vacationed in Guatemala. Alfredo sent money to Respondent to travel to the United States. On December 1, 1991 Respondent entered Mex ico and on May, 1992 Respondent arrived in the United States. Alfredo, who died from AIDS in October, 1995, introduced Respondent to his friend, Richard. Respon dent and Richard became roommates.

Respondent claims that he fears for his life in Guate mala as he is homosexual. Respondent acknowledges that he stays away from politics. He claims that he fears everyone in Guatemala as the Guatemalan people, espe cially those in power (the police and army) do not accept homosexuality. Respondent has no other fears (Tape 9) of returning to Guatemala. Respondent acknowledged that he completed the "request for asylum" (Exh. Nos. 2/12) and offered the following explanation for his fail ure to make reference to his homosexuality and the problems resulting from that status in this first written request for asylum. To wit, in 1992 Respondent simply could not admit that he was homosexual. Respondent further acknowledged that the information set forth in Exhibit Numbers 2/12 wasn't true. Respondent admits that after being placed under oath by the asylum officer who interviewed him on November 13, 1995, he still did not tell the truth to that officer as he feared for his life. Respondent testified that he has never felt comfortable stating that he is homosexual to a government official or a stranger. Now he knows that he can tell the truth and, thus, he is no longer afraid to say that he is gay, that he reached the point where he was able to admit that he's a homosexual about a year ago. Respondent still fears for his life, claims that he is telling the truth as to the reason. Respondent also stated that he did not bring an interpreter to the interview before the asylum officer and that he spoke less English at that point in time than he does at present. At the same time Respondent ac knowledged that in California he is openly gay.

Respondent presented the testimony of a Dr. Steven Murray who has conducted studies about homosexual males in Guatemala and written about "machismo in Latino cultures". The witness was deemed an expert on the question of whether it would be safe for Respondent, an admitted homosexual, to return to Guatemala. Dr. Murray who met the Respondent a little over an hour prior to the individual hearing at which the witness tes tified read the Respondent's declaration in late 1996. Based upon those contacts Dr. Murray testified that he had formed the opinion that it would not be safe for Re spondent to return to Guatemala for the following rea sons. One, Respondent is a visibly effeminate male and this circumstance would cause people to assume that he is homosexual and to hit on him. By "effeminate" Dr. Murray meant, first, a lack of physical aggressivity (2% of males are gender variant, being effeminate is innate) and second, the person walks/talks like a woman. Two, someone is likely to learn that Respondent is ho mosexual and then demand sex from him or beat him. The witness explained that in Guatemala a homosexual is thought to be sexually receptive. There is a cultural view that anyone who is not masculine-like is vulnerable and likes to be taken. Indeed, a disproportion number of policemen have a hunting license attitude toward ho mosexuals. Three, congressman Diaz creates a problem for Respondent for the following reason. In Guatemala's culture the insertive party in sex does not consider him self to be a homosexual. The insertive party simply views himself as a man making use of another male available to him. The insertive party views himself as a being a man acting upon his own controllable sexual urge. When asked why such an individual would satisfy his sexual urge with a man rather than a woman the wit ness stated that women were not readily available in Guatemala. In Guatemala's culture, women are gener ally kept in seclusion. Also, prostitutes are expensive. Thus, we have a situation where the so-called "insertive party" does not possess so much a preference for the male body as a wish to have sex in a land of sexual scar city. The witness further explained that the "insertive party" in this scenario does not view himself as being at risk from AIDS as people like him perceive AIDS to be transmitted from an active homosexual to a passive ho mosexual. As the "insertive party" or perpetrator does not view himself as being homosexual he does not view himself as being part of the risk group for AIDS, and summarize, given the general pattern, congressman Diaz doesn't consider himself a homosexual. A homosex ual is someone who is sexually penetrated, not the penetrator, an effeminate male is thought to be the penetratee. Four, Respondent may be at risk of harm from the thugs of congressman Diaz. In the witness' opinion, the thugs follow directions from Diaz's spouse. The witness pointed out that Mr. Diaz and Mrs. Diaz had different agendas. Mr. Diaz wanted Respondent back. Mrs. Diaz wanted to keep Respondent away and quiet. In Guatemala discretion, not fidelity is what is expected of a husband. More than anything this situa tion would be embarrassing to Mrs. Diaz but due to the lack of discretion it would not stigmatism congressman Diaz if it were known that he raped men. However, if he had dealings with the U. S. Government it might compli cate those dealings. Five, Respondent may be at risk by virtue of his having filed for asylum. Six, Guatemalan society is not ruled by law or due process. One can't expect to go to court and receive any redress. The po lice are used to acting independently. They are not un der orders from the top and they are used to being ques tioned. Seven, if something were to happen to Respon dent in Guatemala there would be no counseling avail able to him. Under these circumstances Respondent took the most rational course of action, i.e. to flee.

Respondent also presented the testimony of Heather McClure who provided background information regard ing conditions for gays and lesbians in Guatemala.

The Respondent called two additional witnesses to testify on his behalf. First, Peter Ernst Riess identified himself as being an account manager at Pitney Bowes, Respondent's present employer. As such Mr. Riess has supervised Respondent the past year. He described Respondent as being an excellent employee who doesn't require any supervision, an honest person whom the witness trusts. Second, Paul Charles Coleman identified himself as being Respondent's boyfriend/life partner. They have had a sexual relationship the past year and some months. Although Respondent and the witness are together six days a week they maintain separate ad dresses. The witness has observed Respondent during these proceedings to be stressed and fearful of deporta tion. The witness acknowledged that the stress could be out of fear of deportation. The witness stated that while they both are committed to the relationship they do not plan to live together. The relationship has been monog amous for the witness. The witness believes Respondent is telling the truth as Respondent fears returning to Guatemala.

The Immigration Service presented the testimony of John Jaworski. Mr. Jaworski identified himself as being the INS officer who interviewed Respondent in connec tion with Respondent's first request for asylum, (Exh. No.2/12). The witness explained the procedure which he follows in conducting an asylum interview. He also stated that he recalled his interview of the Respondent. The witness identified his notes and indicated that they were consistent with Respondent's story account as set forth on the form 1-589, Exhibit Number 2/12, originally received by INS on October 6, 1992, as related at the November 13, 1995 interview. The witness also noted that the alien is given an opportunity at the conclusion of the interview to add anything else. Respondent in this case made no mention of homosexuality at the inter view. The witness was questioned about the Department of State profiles and the absence of any information re garding the problems of homosexuals in Guatemala. The witness acknowledged that he hasn't read much about the status of homosexuals in Guatemala, attributing that in part to the fact that he hasn't had a Guatemala homo sexual case noting that if he did, he would review the available evidence on the matter. The witness also stated that he does not believe that there is much perse cution of homosexuals in Guatemala as the issue homo sexuality has not been raised to the level of seriousness as with other countries.

To be eligible for asylum under Section 208 of the Act an alien must meet the definition of a "refugee" which requires him to show persecution or a well-founded fear of persecution in a particular country on account of race, religion, nationality, membership in a particular social group, or political opinion. To be eligible for withhold ing of deportation an alien's facts must show a clear probability of persecution on the country designated for deportation on account of any one of five statutory grounds. The alien bears the evidentiary burdens of proof and persuasion in any application for asylum un der Section 208 of the Act and withholding of deporta tion. The Courts have concluded that the "well-founded fear" standard and the "clear probability" standard are different, that the former is more generous than the latter.

The Respondent has presented insufficient specific facts as well as concrete and/or credible evidence for the Court to infer that he has been persecuted or has a well- founded fear of persecution in Guatemala on account of his race, his religion, his nationality, his membership in a particular social group or his political opinion. The basis of the Respondent's claim to asylum before this Court was dramatically inconsistent with the claim pre sented to the INS in 1992 and reaffirmed before an INS asylum officer on November 13, 1995. Although Respon dent provides an explanation for the different claims I do not find that explanation to be credible. In light of the Respondent's intelligence and more than three years time in the Los Angeles area during which time he ap pears to have freely associated with other gays and to have had no untoward difficulties with governmental authorities Respondent did not acquire the articulate intelligent relaxed demeanor which he exhibited in this Court overnight. Moreover, we have a situation where the Respondent did worse than neglect for whatever reason to refer to his "homosexual" claim in 1992 or 1995, he set forth "student/political" claim which was completely untrue and he knew it was untrue. The Re spondent's prior experience does not entitle him to come to the United States and lie to a governmental official to secure benefits under the laws of this country. Based upon this conduct I find that Respondent's present claim of mistreatment due to his homosexuality lacks credibil ity and, indeed, that Respondent is not a person of good moral character as that term is defined at Section 101(f)(6) of the Act.

Even assuming there is some truth to Respondent's present claims, Respondent has not presented sufficient evidence for the Court to conclude that he was perse cuted or has a well-founded fear of persecution within the meaning of the Act. 8 C.F.R Section 208.13(b)(2)(i) states: "In evaluating whether the Applicant has sus tained his burden of proving that he has a well-founded fear of persecution the asylum officer or Immigration Judge Shall not require the Applicant to provide evi dence that he would be singled out individually for per secution if (A) he establishes that there is a pattern or practice in his country of nationality or last habitual res idence of persecution of groups of persons similarly situ ated to the Applicant on account of race, religion, nation ality, membership in a particular social group or political opinion and (B) he establishes his own inclusion in an identification with such group or persons such that his fear of persecution upon return is reasonable." In this case Respondent has offered documentary and testimo nial evidence regarding the treatment of homosexuals in Guatemala. While discrimination and persecution of ho mosexuals are illegal in Guatemala and homosexual con duct is not identified as a criminal offense in the law ho mosexuals are subject to official and police harassment and violence. See Exh. No. 5, Tabs F (relating to Heather McClure's recent trip to Guatemala) and H (a one or two page excerpt from "the third pink book global view of lesbian and gay liberation and oppression"). Al though there is some social support for gay rights, ho mosexuality is viewed as a moral deficiency, abnormal and unnatural (Exh. No. 5, Tab H). Miss McClure's tes timony pertained to her observations and inquiries over a ten day trip to Guatemala, her sole trip to that coun try. Mr. Murray's testimony related to the treatment of homosexuals in Latin America including Guatemala which he last visited in 1988. After considering all the evidence presented I find that Respondent has pre sented insufficient evidence for the Court to conclude that there is a "pattern or practice" or indeed any orga nized systematic or pervasive, persecution of "homosex uals" or "relatively effeminate homosexuals" or "effemi nate Guatemalan males" in Guatemala.

Again, even assuming for the sake of argument Re spondent was mistreated in the manner described to the Court I am not persuaded that that mistreatment amounted to persecution within the meaning of the Act or that Respondent has otherwise established a well- founded fear of persecution within the meaning of the Act. Although Respondent claims that he was mis treated on various occasions by both airport and city police due to his homosexuality I am not persuaded that the Guatemalan government is unable or unwilling to take appropriate criminal or other disciplinary action against those individuals who commit acts of violence against those of its citizens who are homosexual. Re spondent did not complain or report his problems with the police to anyone in a position of authority. Respon dent has not established that the Guatemalan govern ment, including leaders of the military or police insti gated or sanctioned any mistreatment of the Respon dent or homosexuals in general.

Respondent's claim relative to congressman and Mrs. Diaz arises from the fact that Respondent had an affair with Mr. Diaz. Respondent has not presented sufficient evidence to establish that either the congressman with whom the Respondent has previously engaged in con sensual sex or the congressman's wife who was clearly angered by this circumstance and her husband's sexual interest in Respondent have ever formed the intent to harm Respondent due to his status as a homosexual. While congressman Diaz allegedly later forced himself upon the Respondent his purpose was to satisfy his sex ual desires. It was a criminal act. The congressman and Respondent had engaged in consensual sex on a number of previous occasions and after the Respondent upon learning of the congressman's marriage ended the rela tionship the congressman, who apparently wanted to continue to have sex with the Respondent forced himself upon the Respondent. Mr. Diaz does not appear to have been interested in changing any characteristic of the Respondent as much as to take advantage of a charac teristic. While the Respondent claims that the body guards whom the congressman's wife directed to the Respondent made derisive reference to the fact that Respondent was homosexual there is no reason to be lieve that Mrs. Diaz would have had any interest in the Respondent apart from the fact that Respondent had slept with her husband. In the end Mrs. Diaz obtained her personal revenge.

Although Respondent attempts to portray this case as being about Guatemala's treatment of homosexuals and his status as a homosexual and, in fact, it is about infi delity and the domestic disruption caused by an affair between the Respondent who happens to be a homosex ual and a married congressman who appears to be bisex ual but for this conduct or affair between Respondent (a homosexual) and the congressman (a bisexual) there is no reason to believe that Respondent would have had any difficulty with either congressman Diaz, Mrs. Diaz and the men whom Mrs. Diaz sent to beat up the Re spondent.

The social groups to which Congress refers are those whose members share similar backgrounds, habits or social status. Although homosexuals can be such a group, "social groups" would not normally be considered to apply to persons whose only common characteristic is that they have transgressed the rules of conduct of a given society. The circumstances of this case do not es tablish status based persecution. Accordingly, Respon dent's application for asylum is denied on statutory grounds.

The Court further finds that the Respondent has failed to establish that there is a clear probability that his life or freedom would be threatened in Guatemala on account of any of the statutory grounds under the with holding provision.

The Respondent has applied for the privilege of vol untary departure pursuant to Sections 244(e) of the Act as it existed prior to April 1, 1997. That section requires an alien to establish that he is a person of good moral character at least five years immediately preceding his application. Good moral character as a defined term in Section 101(f)(6) of the Act bars the finding of good moral character if the alien has given false testimony for the purpose of obtaining any benefit under the Act. In this case, Respondent is unable to establish statutory eligibility as he gave false testimony before an INS asy lum officer on November 13, 1995 for the purpose of ob taining asylum in the United States pursuant to Section 208 of the Act. Accordingly, Respondent's application for voluntary departure is denied on statutory grounds.


IT IS ORDERED that the Respondent's application for asylum be and the same is hereby denied.

IT IS FURTHER ORDERED that Respondent's ap plication for withholding of deportation be and the same is hereby denied.

IT IS FURTHER ORDERED the Respondent's ap plication for voluntary departure be and the same is hereby denied.

It is further ordered THAT THE Respondent be de ported from the United States to Guatemala on the charge contained in the Order to Show Cause.




Immigration Judge




I hearby certify that the attached proceeding before JUDGE WILLIAM J. MARTIN, in the matter of:


A 70 217 803


is an accurate, verbatim transcript of the cassette tape as provided by the Executive Office for Immigration Review and that this is the original transcript thereof for the file of the Executive Office for Immigration Re view




Diane L. Mello, Transcriber

Free State Reporting, Inc.

1324 Cape St. Claire Road

Annapolis, Maryland 21401

(301) 261-1902

August 24, 1997

(Completion of date)


By submission of this CERTIFIED PAGE, the Con tractor certifies that a Sony BEC/T-147, 4-channel tran scriber or equivalent, as described in Section C, para graph C.3.3.2 of the contract, was used to transcribe the Record of Proceeding shown in the above paragraph.










20. File No.: A 70 217 803







23. Mar. 26, 1993









* * * * *





How does he plead?


He admits the allegations, concedes deportability, declines to designate a country of deporta tion and would like to renew his application for asylum before this Court.


All right. The Court designates Guatemala as the country of deportation should deportation become necessary. And is he renewing the-well, the Court has a copy of a Request for Asylum in your client's name dated September 21, 1992. This application was sent to the Court by the Service along with the Order to Show Cause in your client's case. Does he wish to re new-pursue that application?


Not exactly. There's-that, that application-


Well, you said renew, that's the only one I've got.


I said renew an application for asylum. I know I-we, we, we don't want the case to be expedited but that pro-that application was filled out by a notary and it has problems. And I understand that if we file a new form, it turns into an [4] expedited case and we don't want that.


That's right.


Well, we'll set the record straight-


So what do you want to do?


-with a declaration


All right. All-


Because as long as you're not going to bind him-you know, hold him to that application just be cause it happens to be the one that was submitted we will submit a sworn declaration and provide testimony on the facts of the case and explain the reason that the ones in the application are not correct. They were-it wasn't filled out by a professional representative.


All right. You've indicated that the Respondent wishes to supplement that application with a declaration noting that matters that you referred to. Is that cor rect?


Yes, Your Honor

* * * * *





U.S. Department of Justice

Immigration and Naturalization Service

Order to Show Cause and Notice of Hearing





In Deportation Proceedings under section 242 of the Immigration and Nationality Act.

(En los procedimientos de deportación a tenor de la sección 242 de la Lay de Inmigración y Nacionalidad.)


United States of America: File No. 70 217 803

(Estados Unidos de América:) (No. De registro)

Dated [Nov. 17, 1995]




(En el asunto de) (Respondent) (Demandado)


Address 2354 LAVERNA AVE.

(Dirección) EAGLE ROCK, CA 90041-0000


Telephone No. (Area Code) 213-484-0897

(Num. De telèfono y código de àrea)


Upon inquiry conducted by the Immigration and Nat uralization Service, it is alleged that:

(Según las indagaciones realizadas por el Servicio de Inmigración y Naturalización, se alega que:)

1) You are not a citizen or national of the United States.

(Ud. No es ciudadano o nacional de los Estados


2) You are a native of GUATEMALA and a citizen of GUATEMALA;

(Ud. es nativo de) (y ciudadano de)

3) You entered the United States at or near SAN YSIDRO, CA on or about May 14, 1992;

(Ud. entró a los Estados Unidos en o cerca de SAN YSIDRO, CA el día o hacia esa fecha 14 de Mayo 1992;)

4) You were not then inspected by an immigration officer.

(Ud. no fue inspeccionado entonces por un funcionario de inmigración)


Form I-221 (Rev. 6/12/92) N Page 1


U.S. Department of Justice

Immigration and Naturalization Service Page 2

Order to Show Cause and Notice of Hearing





The Immigration and Nat uralization Service believes that you are an alien not lawfully entitled to be in or to remain in the United States. Read this notice carefully and ask questions about anything in this no tice you do not understand. This notice identifies your rights as an alien in depor tation proceedings, and your obligations and the conditions with which you must comply in order to protect your eligibility to be considered for certain benefits.

El Servicio de inmigra cion y Naturalizacion opina que Ud. es un extranjero sin derecho legal a estar o perma necer en los Estado Unidos. Lea este aviso cuidadosamente y pregunte acerca de cual quier parte del mismo que no entienda. Este aviso le explica los dere chos que tiene como extranjero en los tramites de deportacion, y las obligaciones y condiciones que debe cumplir con el fin de proteger su der echo a que se le considere para recibir ciertos beneficios.

Any statement you make before an Immigration Of ficer may be used against you in any immigration or administrative proceeding.

Las declaraciones que haga ante un funcionario del Servicio de Inmigracion podran usarse en su contra en cualquier tramite administrativo o de inmigracion.

You may be represented, at no expense to the United States government, by an attorney or other individ ual who is authorized and qualified to represent per sons in these proceedings. You will be given a list of organizations, attorneys and other persons who have indicated their avail ability to represent aliens in these proceedings. Some of these persons may represent you free of charge or for a nominal fee. You may also be repre sented by a friend, relative, or other person having a pre-existing relationship with you, provided his or her appearance is permit ted by the immigration judge.

Ud. puede ser representado, sin costo alguno para el gobierno de los Estado Unidos, por un abogado o otra per sona autorizada y calificada para representar personas en estos tramites. Ud. recibira una lista de las entidades, abogados y demas personas dispuestas a representar a extranjeros en estos tramites. Algunas de esas personas pueden representarle gratuitamente o por honorarios nominales. Tambien puede representarle un amigo, familiar o otra persona con la que tenga una relacion establecida, siempre que el juez de inmigracion permita su comparecencia.

You will have a hearing before an immigration judge, scheduled no sooner than 14 days from the date you are served with this Order to Show Cause (un less you request in writing an earlier hearing date). The fourteen-day period is to allow you to seek an at torney or representative, if you desire to be repre sented. At your hearing, you will be given the oppor tunity to admit or deny any or all of the allegations in this Order to Show Cause, and whether you are deportable on the charges set forth herein. You will have an opportunity to present evidence and/or witnesses on your own be half, to examine evidence presented by the govern ment, to object, on proper legal grounds, to the re ceipt of evidence and to cross examine any wit nesses presented by the government. Any docu ment that you present that is in a foreign language must be accompanied by a certified English transla tion. It is your responsibil ity to ensure that any wit nesses you wish to present on your own behalf be present at the hearing.

Ud. tendra una audiencia ante un juez de inmigr acion, fijada con un minimo de 14 dias a partir de la fecha que se le expidio esta Orden (a menos que Ud. solicite por escrito una audiencia en plazo aun menor). El plazo de catorce dias le permitira conseguir los servicios de un abogado o representante, si lo desea. En la audiencia se le dara la oportunidad de admitir o negar cualquiera de los alegatos de esta Orden o todos ellos, y se le informara si esta sujeto a deportacion por los cargos expresados en la misma. Ud. tendra la oportunidad de pres entar pruebas y testigos a favor suyo, de examinar las pruebas presentadas por el gobierno, de oponerse, con base en los razonamientos legales pertinentes, a la admision de pruebas y de inter rogar a cualquier testigo del goviemo. Todo docu mento que presente en un idioma extranjero debe ir acompanado de una traduccion certifieada al ingles. Sera respons abilidad suya asegurarse de que cualquier testigo suyo comparesca a la audiencia.

The immigration judge will advise you regarding relief from deportation for which you may be eligible. You will be given a reasonable opportunity to make an application for any such relief. If you are not satis fied with the decision of the immigration judge, you have the right to appeal. The immigration judge will provide you with your ap peal rights.

El juez de inmigracion le informara sobre los recursos de deportacion a los que tenga derecho y se le dara una oport unidad adecuada para solicitarlos. Si no esta de acuerdo con la decision del juez, puede apelarla. E1 juez de inmigracion le informara acerca de sus derechos de apelacion.


U.S. Department of Justice

Immigration and Naturalization Service

Order to Show Cause and Notice of Hearing


Continuation Sheet

(Hoja complementaria)


Dated [Nov. 17, 1995]




File No. 70 217 803

(No. de registro)

AND on the basis of the foregoing allegations, it is charged that you are subject to deportation pursuant to the following provision(s) of law:

(Y según los alegatos anteriores, se le acusa de estar sujeto a deportación de acuerdo con la(s) siguiente(s) disposicion(es) de la ley:)


Section 241(a)(1)(B) of the Immigration and Nationality Act (Act), as amended, in that you entered the United States without inspection.

(Sección 241(a)(1)(B) de la Ley de Inmigración y Nacionalidad (INA), según enmendada, en que Ud. entró los Estados Unidos sin inspección)


WHEREFORE, YOU ARE ORDERED to appear for a hearing before an Immigration Judge of the Executive Office for Immigration Review of the United States De partment of Justice at:

(POR LO CUAL, SE LE ORDENA comparecer ante un juez de inmigración de la Oficina Ejecutiva de Revisión de Inmigración del Departmento de Justicia de los Estados Unidos en:)




Address LOS ANGELES, CA 90012-0000



On [Mar. 26, 1996] At {8:30 a.m.]

(Fecha) (Hora)


and show cause why you should not be deported from the United States on the charge(s) set forth above.

(y mostrar motivos justificantes por cual no debería ser deportado de los Estados Unidos por los cargos expresados anteriormente.)


Dated [Nov. 17, 1995]



Signature of Issuing Officer /s/ ILLEGIBLE

(Firma del funcionario que la expide)


City and State of Issuance ANAHEIM, CA

(Ciudad y Estado donde se expide)


Title of Issuing Officer Supervisory Asylum Officer

(Título del funcionario que la expide)



Form I-221 (Rev. 6/12/92) N Page 3

Page 4


You are required to be present at your deporta tion hearing prepared to proceed. If you fail to appear at any hearing after having been given written notice of the date, time and location of your hearing, you will be or dered deported in your absence, if it is estab lished that you are deportable and you have been provided the appro priate notice of the hear ing

Esta obligado a asistir a la audiencis deportacion y de estar preparado para ella. Si no asiste a cualquiera de las audien cias despues de haber sido notificado por escrito de la fecha, hora y lugar de la audiencia, se ordenara su deportacion en su ausencia, si se establece que puede ser deportado y que recibio los avisos corresp ondientes.

You are required by law to provide immediately in writing an address (and telephone number, if any) where you can be con tacted. You are required to provide written notice, within five (5) days, of any change in your ad dress or telephone num ber to the office of the Immigration Judge listed in this notice. Any no tices will be mailed only to the last address pro vided by you. If you are represented, notice will be sent to your represen tative. If you fail to ap pear at the scheduled de portation hearing, you will be ordered deported in your absence if it is established that you are deportable and you have been provided the appro priate notice of the hear ing.

La ley le obliga a informar inmediate amente por escrito de su domicilio (y numero de telefono, de haberlo) donde pueda ser local izado. Tiene la obligacion de notificar por escrito, en el plazo de cinco (5) dias, cualquier cambio de domicilio o de telefono a la oficina del juez de inmigracion qu aparece en este aviso. Los avisos se enviaran solamente a la ultima direccion facilitada por Ud. Si ha decidido tener un repre sentante, se enviaran los avisos a dicha persona. Si no asiste a cualquiera de las audiencias despues de haber sido notificado por escrito de la fecha, hora y lugar de las mismas, se ordenara su deportacion en su ausencia, si se establece que puede ser deportado y que recibio el aviso de la audiencia.

If you are ordered de ported in your absence, you cannot seek to have that order rescinded ex cept that: (a) you may file a motion to reopen the hearing within 180 days after the date of the order if you are able to show that your failure to ap pear was because of ex ceptional circumstances, or (b) you may file a mo tion to reopen at any time after the date of the order if you can show that you did not receive written notice of your hearing and you had provided your address and tele phone number (or any changes of your address or telephone number) as required, or that you were incarcerated and did not appear at your hear ing through no fault of your own. If you choose to seek judicial review of a deportation order en tered in your absence, you must file the petition for review within 60 days (30 days if you are con victed of an aggravated felony) after the date of the final order, and the review shall be confined to the issues of validity of the notice provided to you, the reasons for your failure to appear at your hearing, and whether the government established that you are deportable.

Si se ordena su deport acion en su ausencia, no podra solicitor la anul acion de esa orden salvo que: (a) pueda presentar un pedimento para tener otra audiencia en el plazo de 180 dias despues de la fecha de la orden si puede demostrar quo no comp arecio debido a circum stancias excepcionales, o (b) puede presentar un pedimento para tener otra audiencia en cual quier momento despues de la fecha de la orden si puede demonstrar que no recibio el aviso de la audiencia por escrito y que habia facilitado su direccion y numero de telefono (o notificado los cambios de direccion o numero de telefono) segun lo previsto, o que estaba encarcelado y no comparecio a la audiencia por motivos ajenos a su voluntad. Si decide solic itar una revision judicial de la orden de deportacion en su ausen cia, debe presentar la solicitud de revision en el plazo de 60 dias (30 dias si ha sido condenado por un delito grave con agravantes) a partir de la fecha de la orden definitiva, y la revision se limitara a decidir si el aviso que recibio es valido, las razones por las cuales no comparecio a la audiencia y si el gobierno demostro que puede ser deportado.

In addition to the above, if you are ordered de ported in your absence, you are ineligible for five (5) years from the date of the final order for the following relief from de portation: voluntary de parture under section 242(b) of the Immigration and Nationality Act (INA); suspension of de portation or voluntary departure under section 244 of the INA; and ad justment of status under sections 245, 248, and 249 of the INA.

Ademas de lo anterior, si se ordena su deportacion en su ausencia, no podra, en el plazo de cinco anos despues de la fecha de la orden definitiva, tener derecho a los siguientes recursos: salida volun taria segun la seccion 242(b) de la ley de Inmig racion y Nacionalidad (INA); suspension de la deportacion o de la salida voluntaria segun la seccion 244 de la INA, y ajuste de condicion segun las secciones 245, 248, y 249 de la INA.

The copy of this Order to Show Cause served upon you is evidence of your alien registration while you are under deporta tion proceedings. The law requires that you carry it with you at all times.

Esta copia de la Orden de Presentar Motivos Just ificantes que le ha sido notificada constituye la prueba de su registro de extranjero mientras se llevan a cabo los tramites para su deportacion. La ley le exige que la lleve consign en todo momento.


Form I-221 (Rev. 6/12/92) N


This Order to Show Cause shall be filed with the Immigration Judge of the Executive Office for Immigration Review at the address provided be low. You must report any changes of your address or telephone number in writing to this office:

Debe presentar [illegible] Orden de presentar Mot ivos Justificantes a la Oficina Ejecutiva de Revisión. Debe notificar cualquier cambio [illeg ible] su domicilio o núm ero de teléfono por escrito a:


The Office of the Immigration Judge


LOS ANGELES, CA 90012-0000


Certificate of Translation and Oral Notice


This Order to Show Cause _ was _ was not read to the named alien in the SPANISH language, which is his/her native language, which he/she understands.



Date Signature Printed Name and Title of Translator



Address of Translator (if other than INS employee) or office location and division (if INS employee)



(If oral notice was not provided please explain)


Manner of Service

Alien's Right Thumb Print

_ Personal Service to Alien

_ Certified Mail-Return Receipt Requested

_ Alien

_ Counsel of Record



Certificate of Service

This Order to Show Cause was served by me at ANA HEIM, CA on [Nov. 21, 1995] at [2:30 p.]m.



Officer's signature Printed Name


Investigative Asst. -ZLA

Title Office



Alien's Signature (acknowledgment/receipt of this form)

(firma de extranjero/acuse de recibo)


Request for Prompt Hearing and Waiver of 14-Day

Minimum Period

(Solicitud de audiencia inmediata y renuncia al plazo minimo de 14 dias)



To expedite determination of my case, I request an immediate hearing, and waive my right to the 14 day notice.

(Para agilizar la decisión sobre mi caso, solicito una audiencia inmediata y renuncio a mi derecho a un plazo mínimo de 14 dias.)


______________________ ___________________

Signature of Respondent Date

(Firma del Demandado) (Fecha)




Form I-221 (Rev. 6/12/92) N Page 5

1 The Honorable Donald Pogue, U.S. Court of International Trade, sitting by designation.

Petition Stage Response
Brief Topic: 
Immigration, Naturalization, & Citizenship
Updated February 4, 2016