Vallecillo-Castillo

Vallecillo-Castillo v. Immigration & Naturalization Service

Good Law
121 F.3d 1237·97 Daily Journal DAR 9883·1997 WL 425485·1996 U.S. App. LEXIS 41633·97 Cal. Daily Op. Serv. 6018
United States Court of Appeals for the Ninth CircuitAugust 5, 1996No. 95-70020California2,024 words

Opinion

Lead Opinion

Pregerson, J.

Opinion by Judge PREGERSON; Dissent by Judge TROTT.

Bayardo Rafael Vallecillo-Castillo petitions for review of the decision of the Board of Immigration Appeals (“BIA”) affirming an immigration judge’s denial of his request for asylum and withholding of deportation. This court has jurisdiction under § 106(a) of the Immigration and Nationality Act, 8 U.S.C. § 1105a(a). We grant the petition for review.

BACKGROUND

Petitioner is a native and citizen of Nicaragua. He entered the United States without inspection on January 12, 1989, at Brownsville, Texas. Petitioner applied for political asylum administratively in San Francisco, California, on March 7,1989. On March 13, 1990, an order to show cause was issued placing petitioner in deportation proceedings.

On February 19, 1991, an immigration judge (“IJ”) held a hearing on the merits of petitioner’s claim. The IJ treated petitioner’s application as a request for both political asylum and withholding of deportation. See 8 C.F.R. § 208.3 (b). Petitioner testified to the following facts, which the IJ did not challenge, and which we accept as true. Singh v. Ilchert, 69 F.3d 375, 378 (9th Cir.1995).

After obtaining a university degree…

Dissenting Opinion

Trott, J.

Dissenting.

I respectfully dissent. In my view, the majority’s analysis misapplies the substantial evidence test of INS v. Elias-Zacarias, 502 U.S. 478 , 112 S.Ct. 812 , 117 L.Ed.2d 38 (1992) (“BIA’s determination that [a petitioner] was not eligible for asylum must be upheld if ‘supported by reasonable, substantial, *1241 and probative evidence on the record as a whole.’ ”). In so doing, this court invades the prerogative of the Board of Immigration Appeals and operates beyond the reach of our power of review.

Moreover, the majority errs in refusing to remand the matter to the Board to determine whether the evidence of record rebuts the presumption of a well-founded fear. Once again, we arrogate power that belongs to others, and in so doing, we are not faithful to our own precedent. See Surita v. INS, 95 F.3d 814 (9th Cir.1996) and Singh v. INS, 94 F.3d 1353 (9th Cir.1996). The irony is that Surita and Singh were decided by this very panel, and in both we remanded to the BIA to consider the rebuttable presumption. To me, there is no principled distinction between these cases. In fact, given the political sea-change in Nicaragua in 1990, this is a better ease for remand than the…

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