Wilfredo Mendoza Perez v. U.S. Immigration and Naturalization Service

concurring specially:

I concur in the court’s opinion with a reluctance grounded in dissatisfaction with both the law enacted by Congress and its application by this circuit.

As to the law, the standards “clear probability of persecution” and “well founded fear of persecution” have too little objective content to enable administrators and courts to apply them with confidence and consistency. It is impossible to exclude from the decisional process extra legal concerns derived from the experiences of the decision maker or his or her forbears. Also not excludable is the decision maker’s understanding of the history of, and conditions prevailing in, the country of the refugee’s origin. No doubt the argument that these influences should not be excluded can be made with some force. The difficulty the argument encounters, however, is that its strength suggests that administrators should be the decision makers rather than judges who in our legal system function best in applying Jaw to facts established by an adversarial process in which their role is essentially a subordinate one.

The response of Congress has been to create immigration judges and the Bureau of Immigration Appeals that…

Mr. Mendoza appeals the denial of his request for withholding of deportation and his application for political asylum. At issue is whether there was substantial evidence on which the Board of Immigration Appeals could affirm the Immigration Judge’s finding that Mendoza did not establish either a “clear probability of persecution” or a “well-founded fear” of persecution.

FACTS

Mendoza, an El Salvadoran, entered the United States without inspection on March 11, 1982, across the Mexican-American border. He was apprehended by the INS and deportation proceedings were started. On March 11, 1985, Mendoza conceded deporta-bility to the Immigration Judge and moved to remand for further consideration of his asylum application. This motion was denied and Mendoza appealed to the Board of Immigration Appeals, which denied the appeal and ordered voluntary deportation on October 25, 1988.

Mendoza bases his request for withholding of deportation and asylum on the fact that he was threatened with serious harm shortly before he left El Salvador. Mendoza was an accountant with the Salvadoran Communal Union for between three and five years, before he left the country. He described the Communal…

902 F.2d 760 Wilfredo MENDOZA PEREZ, Petitioner, v. U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 89-70035. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 14, 1990. Decided May 7, 1990. Carolyn P. Blum, Asylum Appeals Clinic, Boalt Hall School of Law, Berkeley, Cal., Sergio Garcia-Rodriguez Heller, Ehrman, White & McAuliffe, San Francisco, Cal., for petitioner. Alice M. Smith and Mark Walters, Office of Immigration Litigation, Civ. Div., U.S. Dept. of Justice, Washington, D.C., for respondent. Petition to Review a Decision of the Immigration and Naturalization Service. Before SNEED, FARRIS and FERNANDEZ, Circuit Judges. FARRIS, Circuit Judge: 1 Mr. Mendoza appeals the denial of his request for withholding of deportation and his application for political asylum. At issue is whether there was substantial evidence on which the Board of Immigration Appeals could affirm the Immigration Judge's finding that Mendoza did not establish either a "clear probability of persecution" or a "well-founded fear" of persecution. FACTS 2 Mendoza, an El Salvadoran, entered the United States without inspection on March 11, 1982, across the Mexican-American…