Oscar Alberto Canas Cuadras v. United States Immigration and Naturalization Service

910 F.2d 567 Oscar Alberto Canas CUADRAS, Petitioner, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 88-7478. United States Court of Appeals, Ninth Circuit. Argued and Submitted Dec. 15, 1989. Decided Aug. 3, 1990. Kathleen A. McKinley, Thelen, Marrin, Johnson & Bridges, San Francisco, Cal., for petitioner. Ellen Sue Shapiro and Alison R. Drucker, Office of Immigration Litigation, Civ. Div., Dept. of Justice, Washington, D.C., for respondent. Petition to Review a Decision of the Immigration and Naturalization Service. Before HALL, BRUNETTI and NOONAN, Circuit Judges. BRUNETTI, Circuit Judge: 1 Oscar Alberto Canas Cuadras ("Cuadras") petitions for review of the Board of Immigration Appeals ("BIA") decision dismissing his appeal from the Immigration Judge ("IJ") decision that ordered Cuadras's deportation to El Salvador and denied Cuadras's applications for voluntary departure, asylum, and withholding of deportation. We affirm. 2 Cuadras is a 28 year-old native and citizen of El Salvador who entered the United States without inspection on April 30, 1983. 3 On June 28, 1983, Cuadras was served with an order to show cause why he should not be deported to…

Oscar Alberto Canas Cuadras (“Cua-dras”) petitions for review of the Board of Immigration Appeals (“BIA”) decision dismissing his appeal from the Immigration Judge (“IJ”) decision that ordered Cua-dras’s deportation to El Salvador and denied Cuadras’s applications for voluntary departure, asylum, and withholding of deportation. We affirm.

Cuadras is a 28 year-old native and citizen of El Salvador who entered the United States without inspection on April 30, 1983.

On June 28, 1983, Cuadras was served with an order to show cause why he should not be deported to El Salvador. Cuadras hired counsel and obtained a continuation of his deportation hearing in order to file an asylum application.

Cuadras submitted his asylum application on November 17, 1983. It stated that Cuadras feared persecution primarily for the following reasons: (1) “Especially because of my age, I [Cuadras] am subject to suspicion and forceable recruitment by both sides”; (2) “A cousin belongs to a guerrilla organization. He lives in the same town and has one last name [the same] as mine. I am in danger from the authorities because I am related to him” and (3) “[B]ecause I am a young man, I am especially subject…

dissenting:

In adopting the position that a petitioner for asylum must show that a reasonable person in his circumstances would have well-founded fear, the Board adopted an objective standard of proof. The difference between the subjective state of mind of any particular individual and the state of mind of a hypothetical “reasonable person” is one of the most fundamental distinctions of Anglo-American law, see Prosser and Keeton, Torts, § 32 (1984); Holmes, The Common Law, 108-11 (1948); The Germanic, 196 U.S. 589, 596 , 25 S.Ct. 317, 318 , 49 L.Ed. 610 (1905).

In Cardoza-Fonseca v. INS, 767 F.2d 1448, 1452 (9th Cir.1985), aff'd, 480 U.S. 421 , 107 S.Ct. 1207 , 94 L.Ed.2d 434 (1987), this court stated: “The term ‘well-founded fear’ refers to a subjective state of mind, while ‘clear probability’ refers to an objective fact. The latter phrase requires an examination of the objective realities, while the former requires an analysis of the applicant’s mental state (notwithstanding the fact that the fear must have some objective basis if we are ultimately to find it well-founded).” The court thus carefully distinguished between “a reasonable person” test and a subjective test of…