USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 94-1385
JUAN FRANCISCO CORDERO-TREJO,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
____________________
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
____________________
Before
Boudin, Circuit Judge,
_____________
Aldrich, Senior Circuit Judge,
____________________
Young,* District Judge.
______________
____________________

Maureen O'Sullivan with whom Harvey Kaplan, Jeremiah Friedman a

__________________
_____________ _________________
Kaplan, O'Sullivan & Friedman were on brief for petitioner.
_____________________________
Iris Gomez with whom Massachusetts Law Reform Institute was on

__________
__________________________________
brief for Guatemaltecos Unidos En Accion of Rhode Island and
Massachusetts Immigrant and Refugee Advocacy Coalition, amici curia
Donald E. Keener, Office of Immigration Litigation, with whom
________________
Frank W. Hunger, Assistant Attorney General, and Philemina McNeill
_______________
_________________
Jones, Office of Immigration Litigation, were on brief for responde
_____
____________________
November 23, 1994
____________________

____________________
*Of the District of Massachusetts, sitting by designation.

ALDRICH,
Francisco
Appeals
denial

Cordero
("Board")

of

asylum

immigration judge.
the

Board,

ignored

in

Senior Circuit Judge.

_____________________
Trejo

claims

erred in
and

Board of

dismissing

withholding of

Cordero's

summarily

assumptions

his

Immigration

appeal from

deportation

by

principal contention is

adopting

substantial portions

inappropriate

the

Petitioner Juan

the

of the

about

how

IJ's

a
the

that

conclusions,

evidence and

accepted

Guatemalan

society

operates in
fear of

concluding that his claim to have a well-founded

persecution if returned to

"inconsistencies"

and

Guatemala contains fatal

"implausibilities,"

and

that

he is

statutorily ineligible for either asylum or withholding.

8 U.S.C.

1158(a) and 1253(h) (1988 & Supp. IV 1992).

After

full

review,

we

hold

underlying the Board's conclusion that

for asylum are
Board's

The

the

that

in

the

findings

Cordero is ineligible

substantial evidence.

IJ's findings

when evaluated

and conclusions

light of

the

record as

The
is
a

Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951).

______________________
____

Board's

asylum,

not supported by

adoption of

unreasonable
whole.

See
___

initial basis

i.e.,

the

IJ's

for

denying

extensive

Cordero's bid

negative

findings, are without foundation in the record.

alternative

holding that

Cordero is

-22

for

credibility
The

Board's

statutorily ineligible

for asylum based

one in

upon, inter alia,1

__________

Guatemala "is interested in

statutory grounds for asylum,"

slip

op. at 2 (BIA Mar. 22,

reliance

on

substantial
Board did

those

not
in

concerning

the

Guatemala and

similarly situated
regulations.

findings

and

to

"in

failed

to

practice

of

of

a
the

general

consider evidence
persecution

of

required by INS

208.13(a) and (b)(2)(i).

v. INS, 18 F.3d 1017, 1031 (2nd Cir. 1994).

___
vacate the

Finally,

light

persons in Guatemala, as

8 C.F.R.

discredit

evidence.

the record

pattern

of the five

1994), can only be derived from

Cordero's

evaluate

conditions"

him for any

no

In re Cordero, No. A70438773,

__ __ _______

unreasoned

portion of

its conclusion that

See Osorio
___ ______

Accordingly, we

Board's eligibility determination and

remand for

new proceedings in accordance with this opinion.

I.
I.
__
BACKGROUND2
BACKGROUND
__________

was born

Cordero is a native and

citizen of Guatemala.

in 1948,

high

and completed

medical school there.

four

daughters,

school and

He

attended

He was a 42 year-old married father of

small

property

owner,

and

owner

and

____________________
1. The Board
also based this alternative
holding on
Cordero's failure to show past harm and the fact that his
family remains in Guatemala unharmed. These are statutorily
insufficient grounds for a denial of asylum, as discussed
infra.
_____
2. Except where expressly indicated, the facts stated herein
were not contradicted.
-33

operator of a successful construction

dozens of workers
1990.

when he

business that employed

fled his country

in November

of

He enjoyed a good standard of living, had savings, and

sent his daughters to private school.

His wife and daughters

remain in Guatemala.
From

1976

to

1990

Cordero

also

worked

as

volunteer with "Laicos Comprometidos" (the committed laymen),

a religious organization dedicated to
faith, to

promoting the Catholic

providing medical care, food and clothing to needy

Guatemalans and
He travelled
year to remote

to helping them "rise

on these

above their poverty."

missions approximately three

areas which

had been hard

hit by

times a
conflicts

between

guerrillas

and

the

Guatemalan

military.

Cordero

testified to having been stopped many times on these missions

by

armed groups who accused him

and his fellow missionaries

of inciting rebellion among the rural people.

In

1985

threatening phone
with Laicos.

Cordero

began

calls warning

Then, in 1986,

to

receive

him to stop

anonymous

his activities

Cordero's younger brother

was

attacked by armed men who stabbed him multiple times, stating

that this was a

warning for Cordero.

Several

months later,

Cordero's older

brother was attacked by armed

men who threw

him

off a

cliff,

stating that

brother's (Cordero's)
brothers

survived,

it

was on

failure to heed their

and

remain

in

account of

his

warnings.

Both

Guatemala.

Cordero

-44

testified that both

before and

members of his

family were

house was being

watched.

after these

attacks he

and

followed on the

street and

his

He reported

the threatening phone

calls

and

surveillance,

but

was

unable

to

obtain

any

stopped by

the

assistance from the National Police.

In
army3

November of

while on

unrest.

a mission

Cordero was

in a

region plagued

by guerilla

He was interrogated at length about his motives for

coming

to

the region,

"Laicos Comprometidos"
among

1987

the people.

intimate

were

and when

he

he was accused

Several

killed in

priests

the course

explained he

of inciting rebellion
with whom
of

In 1989 Cordero suspended the

group

social workers

that he

in the

activities of a

and some

founded to help troubled teens because of a

Cordero was

their work

countryside.
of lay

was with

friends had

telephone threat

they received.4
____________________
3. In his affidavit in support of his asylum application,
Cordero states that he was "arrested" by the army. Later, in
response to questioning before the immigration judge, Cordero
stated that he had never been arrested in Guatemala.
The IJ
in his opinion and the INS in its brief ignore this incident,
whereas Cordero's brief maintains he was in fact arrested.
Because the record offers no reason to believe the incident
described here did not occur, we feel it is safe to assume
that Cordero probably understood the word "arrest" as he used
it in his affidavit to mean "stop," rather than its more
specialized criminal law meaning. We believe the discrepancy
can therefore be
simply explained by inadequacies
of
translation.
4. This incident too, although not contradicted anywhere in
the record, is not acknowledged by either the immigration
judge or the INS.
-55

In

June of

Cordero resigned
put a stop

1990, after

from Laicos because he

to the

he was accosted

warning.

and his

activities

However, in October of 1990

on a city street by armed men who identified

as belonging to the "death

him to abandon

of service,

believed this might

campaign against him

that was terrorizing his family.

themselves

twelve years

squads."

the country and that this

They warned

would be his final

They robbed him, but did not harm him physically.

Cordero

claims that his

family was terrorized and

that his own fears of persecution crystallized at this point.

He believes that if he returns to Guatemala he will be killed
by

those who continuously threatened him.

leave

Guatemala that

night, but decided

leave legally.

He

but

down by

visa.

was turned
He

then

obtained a passport

left

the United
Guatemala

He was tempted to
instead to

try to

without difficulty,

States Consulate
on

November

travelling by bus and on foot through Mexico.

for a

21,

1990,

He entered the

United States near Brownsville, Texas on or about February 2,

1991

without

inspection

and

was

apprehended

by

the

Immigration Service shortly thereafter.

In deportation

hearings held in March

and June of

1991 Cordero conceded

and

withholding

deportability and

of

deportation,

voluntary departure.
243(h)

and

applied for
in the

asylum

alternative,

Immigration and Nationality Act

and 244(e), 8 U.S.C.

208,

1158(a), 1253(h) and 1254(e)

-66

(1988

and

Supp.

IV

applications for
request
Board.

1992).

asylum

for voluntary
On

March 22,

The

IJ

denied

and withholding,
departure.

but

Cordero's

granted

his

Cordero appealed

to the

dismissed the

appeal.

1994 the Board

The Board relied on adverse credibility findings by the IJ in

reaching its decision that Cordero did not meet the statutory
definition

of

"refugee."

INA

101

101(a)(42)(A), 208(a), as amended, 8 U.S.C.

1101(a)(42)(A),

1158(a).

"inconsistencies

and

application
even

if

rendered him

credible,

he

The

Board

implausibilities"

et

1101 et seq.,
reasoned
in

eligibility for asylum because

to

establish

that

Cordero's

unworthy of credibility,
had failed

seq.,

and that
statutory

he had not shown that

he was

ever harmed

in Guatemala,

Guatemala had

been harmed, or

interested in him for

asylum."
that

In re
__ __

of

his family

remaining in

that "anyone in

Guatemala is

any of the five statutory

Cordero, slip. op.

_______

suffering from

conditions

or that

at 2.

The Board noted

civil disturbances and

violence

do

not qualify

grounds for

an

fleeing general
applicant

for

asylum.
Cordero now appeals.
II.
II.
___
EXHAUSTION OF ADMINISTRATIVE REMEDIES
EXHAUSTION OF ADMINISTRATIVE REMEDIES
_____________________________________
The INS

charges that

Cordero did not

exhaust his

administrative remedies because until now he has claimed only

-77

religious

persecution,

and failed

imputed political opinion and/or

to claim

persecution on

social group grounds, as he

now seeks to do on appeal

without

merit.

Commissioner

See
for

to this court.

generally

Refugees,

the

This contention is

United

Nations

Handbook
on Procedures and
______________________________

Criteria for Determining Refugee Status (Geneva, 1979),

_______________________________________
and

67.

his

I-589

Not only did Cordero

application

for

High

66

check the social group box on

asylum, the

immigration

judge

framed the discussion in his order and opinion principally in

terms

of the social group ground.

the Board's

decision reveals

application

lacking with

statutory grounds."5

Moreover, the language of

that

it considered

respect to

"any one

Cordero's

of the

five

In re Cordero, slip. op. at 2.

__ __ _______
III.
III.
____
STANDARD OF REVIEW
STANDARD OF REVIEW
__________________

We review

findings of fact and

Board "under a deferential 'substantial'

Alvarez-Flores
______________

credibility by the
evidence standard."

v. INS, 909 F.2d 1, 3 (1st Cir. 1990); Novoa___

______

Umania v. INS, 896 F.2d 1, 2 (1st Cir. 1990) ("we must uphold
______
___
any

finding

evidence'").

of

fact

that

is

supported

Board determinations of

by

'substantial

statutory eligibility

____________________
5. Petitioner stated his fear to be "on account of his
membership in the social group of religious layworkers
(catechists) and on account of the political opinion which is

imputed to such people, and to the Petitioner in particular."

We regard Cordero's application for asylum as justiciable
under any one or several of the statutory grounds that the
record as a whole supports.
-88

for

relief

withholding,

from
are

deportation,
conclusive

if

whether
"supported

via

8 U.S.C.

1105a(a)(4) (1988).

or

by reasonable,

substantial, and probative evidence on the record

as a whole."

asylum

considered

Gebremichael v.
____________

INS, 10 F.3d 28, 31 (1st Cir. 1993).

___
Under

normal

principles

of

administrative

law

governing the role of courts of appeals when reviewing agency

decisions for substantial evidence,
[t]he Board's findings must . . . be set
aside when the record before a Court of
Appeals clearly precludes the Board's
decision from being justified by a fair
estimate of the worth of the testimony of
witnesses or its informed judgment on
matters within its special competence or
both.
Universal Camera, 340 U.S. at 490.
________________

This is to ensure that an

agency

"keeps

Ghebllawi
_________

within

v. INS, 28 F.3d
___

Universal Camera
_________________

entitled

"supplant

the

to

extreme

agency's

the Board
970 F.2d

973,

975

(1st

Maritime Commission, 383

___________________

Board

We

merely

by

will

not

supported by substantial
112

S.Ct.

at

evidence, see, Martinez

___ ________
Cir.

of

identifying

to reasonable inferences

from conflicting

See,
___

kind of administrative

Oklahoma,
________

we defer

that

deference").

findings

v.

Id.
___

Cir. 1994) (invoking

emphasize

that could be

Arkansas
________

However, though

to

is not "a unique

alternative findings
evidence."

grounds."

83, 85 (9th

standard

Immigration Appeals
agency

reasonable

1992),

Consolo
_______

v.

U.S. 607, 619-20 (1966),

1060.

drawn by
v. INS,
___
Federal
_______
deference

-99

is

not

due

inferences

where findings

and

or presumptions that

conclusions

are based

on

are not reasonably grounded

in

the record, viewed as a whole, Universal Camera, 340 U.S.

________________

at

491; Radio Officers' Union v.

_______________________

(1954),

or

are merely

personal

NLRB,
____
views

347 U.S.
of the

17,

49

immigration

judge.

See Damaize-Job v. INS, 787 F.2d 1332, 1337 (9th Cir.

___ ___________
___

1986).

In any case, credibility findings resting on analysis

of testimony rather than on

usual deference."

demeanor may "deserve less

than

Consolidation Coal v. NLRB, 669 F.2d 482,

__________________
____

488 (7th Cir. 1982).

IV.
IV.
___
DISCUSSION
DISCUSSION
__________
Of the issues Cordero raises on appeal with respect
to

the

denial of

his

application

for asylum,

two

merit

serious discussion: (1) the Board erred in relying on adverse

credibility

and

other

factual

findings

which

supported by substantial evidence in the record;

Board's decision

is not

supported

are

not

and (2) the

by substantial

evidence

because it ignores significant documentary evidence pertinent

both

to

the

persecution on
and

to

credibility

account of one or

the persecution

Guatemala.

of

of

Cordero's

claimed

fear

of

several statutory grounds,

similarly

situated persons

We address each argument in turn.

A.
Credibility and Other Factual Findings
A.
Credibility and Other Factual Findings
________________________________________________

in

-1010

The

Board's

findings that
rife

with

failed

denial

Cordero's

show either

Guatemala,

or that

asylum adopted

application and

inconsistencies

to

of

and

that he

his

the

testimony (1)

implausibilities,
had

family had

suffered past
been

any of the

five statutory grounds

was

and

(2)

harm in

harmed since

departure, or "that anyone in Guatemala is interested

for

IJ's

his

in him

for asylum."

In re
__ __

Cordero, slip. op. at 2.

_______
As

to

the Board's

second

holding,

it is

well-

established that the first

two reasons are not prerequisites

to

under

qualify

101(a)(42)(A),

for
8

asylum
U.S.C.

208.13(b) and

(b)(2)(i).

421

Matter

(1987).

the

statute.

1101(a)(42)(A),

INS v. Cardoza-Fonseca,
___
_______________

of Mogharrabi,

19

I&N Dec.

INA
C.F.R.
480 U.S.
439 (BIA

_____________________
1987).

See also,
___ ____

(2nd Cir.

Sotelo-Aquije v. Slattery, 17 F.3d

_____________
________

1994)

(fact

that petitioner

physically harmed "is not determinative

well-founded fear of persecution");
1396,

1402

(9th

threatened

when

Cir.
he

1987)

was

that the

not

been

of whether he has

(petitioner's

watched

yet

Turcios v. INS, 821 F.2d

_______
___
"freedom

continuously

compelled to restrict his activities").

is a conclusion

had

33, 37

and

was
felt

And the third reason

Board could only

have reached

by

relying on the IJ's adverse credibility findings to discredit

the bulk of Cordero's evidence.

-1111

Because

the

findings as the initial

relied on
Cordero

them in
had

in

Board

adopted

these

credibility

basis for its denial of

asylum, and

formulating its alternative

any

event

not

established

holding that
statutory

eligibility

for asylum,

supporting these

the

sufficiency

findings remains an

of

the

issue on

evidence

appeal.

We

evaluate each IJ finding for substantial evidence:

1.

Because

Cordero's affidavit does

not identify the

"unknown armed men" who attacked him and two of his

brothers as members of "death squads," nor mentions
that
the

the attackers identified

judge

found

inconsistent,

his

and

themselves as such,

testimony

his

to

that

effect

characterization of

these

attacks therefore not deserving of credibility.

The
significant

record

establishes that,

fact that one . . .

far

from

being "a

would be expected to state

in the asylum application or supporting affidavit," as the IJ

asserted, accounts

of

Guatemala refer to

"unknown attackers," "unidentified

"armed

assailants"

interchangeably.
family's

attackers

incidents are
The record
unofficial

political

and

described

reveals that
and

members

Cordero's
are

attacks

of

and

"death

descriptions of

thus

killings

in Cordero's

precisely because these

"clandestine"

-1212

they

are

and

how

supporting

by

men,"
squads"

his

consistent with

in

his

similar
evidence.

groups are
definition

"unknown."

In

instances

the

fact,

the

only

way

distinguishable from
threats and

record suggests
they

mere bandits

are

violence.

discontinue his

most
i.e.,

and criminals, is

by the

typically precede or

Both Cordero's

affidavit refer repeatedly to

in

knowable,

indications of motive that

accompany their

that

testimony and his

the attackers' demands that he

activities with

Laicos, and to

warnings of

future violence should he disregard them.

Viewing Cordero's affidavit and testimony "in light
of the record as a whole," it is difficult to

perceive how a

reasonable factfinder could find an inconsistency between the

labels "death
impugn

the

testimony

squad" and

"unknown armed men"

applicant's credibility.
concerning

"strongly

sufficient to

Similarly, Cordero's

armed

men

with

vehicles

without number plates" is consistent with both labels.

2.

"One must question why [Cordero] would report these

threats

to

national

police

of

the

Guatemalan

government."
The
other

record shows

things, a

power to halt

lack of
____

these sorts

that in
response

Guatemala it

is, among

by authorities

with the

of attacks that

suggests that

particular incident was no ordinary crime or random violence.

Viewed in this

context, it makes perfect

sense that victims

would report violent incidents to the authorities.

In fact,

given that the record contains several examples of victims or

-1313

relatives

reporting such

incidents to

support the assumption that

exercise their legal

police, it

does not

Guatemalans would not attempt to

rights in order to

prevent, redress or

simply record incidents of persecution.

3.

Given that
always
"one

Cordero testified that the death squads

carry rifles
must

and use

wonder why

them with

[neither

he

impunity,

nor his]

two

brothers who were allegedly attacked by death squad

members

were not shot

or apparently attacked with

firearms and were not killed."

The record documents numerous politically motivated
attacks
many,

upon
if not

social
most, of

activists and
which are

religious

lay workers,

characterized by

acts of

violence

accompanied

by

warnings

violence

that do not result

and

threats

in the death

of

future

of the victim(s).

The record suggests that the use of violence as a vehicle for

intimidation is widespread in
context, a

Guatemala.

reasonable interpretation of

that the death squads

encompass

their use

Understood in this
Cordero's testimony

use their weapons with

for purposes

impunity would

of intimidation,

and not

merely for killing.

It is difficult to
could

view

attackers'
record,

Cordero's
fondness

and

see how a reasonable factfinder

off-hand

for weaponry

conclude

that

comment
in

his

the

regarding

his

context of

this

credibility

has

been

-1414

compromised.

Moreover, to infer that

unlikely to be

persecuted because he and his

not killed during attempts to

absurd result of

an asylum applicant is

terrorize them "lead[s] to the

denying asylum to

experienced persecution

relatives were

those who have

actually

and were fortunate enough to survive

. . ".

Del Valle v.
_________

INS, 776 F.2d 1407,

___

1413 (9th Cir.

1985).
4.

The IJ found
Cordero

it "not

particularly credible"

"would not tell

October of 1990 that

or active
fact

in the

he was

his alleged

attackers in

he was no longer a

member of

Laicos religious movement

threatened .

. .

that

for his

if in

religious

activities."
There is
question.

perhaps a superficial basis

for the IJ's

How much credit, however, would his attackers give

to

a protestation that, after so many years, he had resigned

or

retired?

It

is to

occurred in an urban
find him in the

be

noted that

this

confrontation

area, without the attackers waiting

countryside.

Could he reasonably

to

expect to

end these threats by talk?

5.

The

IJ found

[Cordero's]
interested
him as

it "not
attackers,

particularly credible
if

in his religious

opposed to

they

were

truly

activities, would rob

physically harming him

had allegedly threatened to do. . . .".

-1515

that

as they

The

record,

exploitation,

documenting

including thefts of

wide

variety

documents, robberies, and

ransacking of artwork, religious and other valuable

property

by those seeking to terrorize or intimidate the populace,

to the

contrary, and

of

contains no

evidence to

is

support this

assumption.
6.

"One

must wonder

would

why

the

Guatemalan

government

place its seal on a document . . . extolling

[Cordero's]
targeted

virtues
by

in

government

movement

death

provide information purporting

allegedly

squads

or

would

to corroborate

the

death squad atrocities."

Referring to the letter
commemorating

Cordero's

certain hospital
the

government

executed upon

service

documents, it
puts

from the Laicos leadership

its

and

resignation,

appears that the

stamp of

approval

paper bearing government

on

and

to

IJ assumed
documents

"seals" after
_____

their

completion

in concluding that they therefore deserve "little

weight."

This assumption

discernible

evidence,

testimony that
arm of the

but

is not
is

these documents

only unsupported

contradicted

by

Cordero's

were never submitted

Guatemalan government.

by any

to any

In fact, examination

of

the documents

belies the IJ's conclusion:

paper preprinted

with such seals appears to be obtainable from

merely

by payment

of fifty

"centavos de

the government

quetzal"

for the

-1616

purpose of

executing "official" documents of

any sort, thus

the government never sees, let alone approves their contents,

as Cordero himself testified.
7.

The

IJ found

"are

not

provide

that Cordero's

under

oath, are

no foundation

supporting documents
conclusory

for the

in nature,

stated conclusions

and . . . are suspect at best."

An examination of the letters, hospital reports and
other

documents

submitted

in

support

reveals that they were executed on

the

affiant,

sealed

"Hospital General

with,

of Cordero's

claim

official paper, signed by

e.g.,

"Laicos

San Juan de Dios"

Comprometidos,"

or "Hospital Roosevelt"

insignia, and included the language "giving faith to what was

previously said" or

"CERTIFIES."

There is

no evidence that

this is

insufficient to be

Guatemala.

Both medical

officials and

the heads

considered a sworn

statement in

statements are signed

by hospital

of the examining

departments; both

detail the injuries, and their causes, sustained by Cordero's

brothers, as contained in their medical
Comprometidos document

is signed

records.

by both the

The Laicos

President and

Secretary of the organization and describes Cordero's work in

detail.

No reasonable

supports the

immigration

authenticity or worth.
96 (6th

Cir.

interpretation

1986)

of

these documents

judge's conclusions

as

to

their

Cf., Dawood-Haio v. INS, 800 F.2d 90,

___ ___________
___
(observation

that

petitioner's

sworn

-1717

statements "are not documented" to conclude he is not telling

the truth "is a non-sequitur").
8.

The IJ
her

found the

full

name on

fact that Cordero's

letters

to him,

wife signed
and

that the

letters "are addressed to respondent's formal name"

suspect

because

"one

would normally

expect

the

that Cordero's wife opened

her

spouse to use the more familiar form."

The record reveals
letters to her husband

with either "Dear Paco," "My

Beloved

Husband," or "My dear one," while addressing the envelopes to

_________
"Senor
see

Juan Francisco Cordero

Trejo."

It

is impossible to

how this is contrary to what "one would normally expect"

anywhere.
that

Nor is there any evidence in the record to suggest

signing

country

a letter

to a

by using one's full

spouse

residing in

name is contrary

a foreign

to the common

practice of someone of Mrs. Cordero's cultural background.

9.

If Cordero "were truly targeted by the government,"

it is "not particularly plausible" that he obtained
a passport.
This court has acknowledged

passport

persecution.
1989).

does
Ipina
_____

not

indicate

v. INS, 868 F.2d 511, 515

___

absence

of

n.9 (1st Cir.

The "mere possession of a valid national passport is

no bar to refugee status."

for

necessarily

that ability to obtain

Refugees,

United Nations

High Commissioner

Handbook on Procedures and Criteria for

____________________________________________

-1818

Determining Refugee Status,

__________________________

48, at 14 (Geneva

1979); See,
___

Turcios
_______

1396,

Cir.

v.

INS,
___

821

(incorrect for IJ
to leave

F.2d

will not persecute him upon

the civilian

(9th

to assume government that

Cordero is not claiming to

by

1402

1987)

allows a person

return).

Furthermore,

have been targeted and threatened

government, but

by a

shadowy, extra-legal

entity associated with the Guatemalan military.

10.

The

IJ

office

assumed that
in

Laicos,

missions

per

religious

movement

because
and

year,

led
his

Cordero
only

never held

two

involvement

was "relatively

or
in

three
this

limited," and

that since officers of Laicos "suffered no apparent

harm . . . for the past several years," Cordero had
"embellished"
leading

his

officers

alleged
.

susceptible to potential

fear:
are

"Certainly

more

the

visible

and

persecution than are

the

rank and file members such as respondent."

The

record is replete with references to incidents

of politically, socially or religiously motivated persecution

of

precisely

workers,

like

the sort

of

Cordero, who

non-prominent
carried

out

lay or

volunteer

the missions

for

social

change

committed.

to

which

The IJ's

legitimate fear

they or

their

organizations

conclusion

about

who would

under these circumstances

are

have

in Guatemala thus

-1919

cannot be derived from a reasonable appraisal of the evidence

presented in the record.
* * *
Each "inconsistency" or
IJ identified either appears
without

support

uncontroverted

in

the

the

to be based upon "expectations"

record,

testimony,

relevant background

"implausibility" that

or

or

is

inexplicably

flatly

refutes

contradicted

and country conditions evidence.

by

It is

apparent that the IJ did not consider Cordero's testimony and

evidence "in
required

light of

by law.

referred to

general conditions" in

Guatemala, as

C.F.R.

The IJ

the significant

208.13(a).

never

country conditions evidence

in

the record.
This court, in reversing the Board in Perez-Alvarez
_____________
v. INS, adopted the analysis of a dissenting Board member:
___
As a general rule, in considering claims
of
persecution
I
think it
highly
advisable to avoid assumptions regarding
the way other societies operate.
Time
and again this Board
has considered
appeals in which assumptions of this
nature have been proven to be totally
wrong . . . .
857 F.2d 23, 24

(1st Cir. 1988) (nothing in

IJ's assumptions, "except

life

perhaps his general

record sustains
perception of

or political conditions in El Salvador which may or may

not be grounded in fact").

Here, the
perspectives

IJ's conclusions are not

offered

by the

unique

vantage

drawn from any

point of

the

-2020

factfinder, such as witness demeanor, conflicting or confused

testimony,
assessed.

etc.,

from

In fact, it

which

credibility

is difficult to

is

typically

ascertain from what

sort

of evidence

The opinion

the IJ

drew his

states no more than "one must question why . . .

" or "one must wonder why . . . ."

evidence

that supports

unreasonably
the

credibility conclusions.

objective

these

As the record contains no

findings, we

eviscerate Cordero's attempt

and the

subjective

claim--that he has been, and fears

persecution in Guatemala.

-2121

find that

they

to establish both

elements

of his

asylum

being again, targeted for

B.
Background and "Country Conditions" Evidence
B.
Background and "Country Conditions" Evidence
______________________________________________________
1.
Credibility and Context
1.
Credibility and Context
_________________________________
A "well-founded fear
a subjective and an
U.S. at 430-31,
(1st

Cir.

while

objective element.

440.

1990).

applicant's

former

credible testimony

believability
presentation

he
of

can

Cardoza-Fonseca, 480
_______________

Alvarez-Flores v.
______________
The

the latter is

evidence.

of persecution" contains both

is
that

INS, 909 F.2d

___

established

via

his

genuine;

largely dependent upon

establish

reliable,

for

specific,

Id. (collecting cases).

___

his

fear is

claims

objective

of

the

through

supporting

In addition, the Code of

if
__
credible in light of general conditions
_________________________________________
in the applicant's country of nationality
__________________________
or last habitual
residence, may
be
sufficient to sustain [his] burden of
proof without corroboration.
8 C.F.R.

testimony

the

the context and

Federal Regulations provides that

[t]he

1, 5

applicant,

208.13(a) (emphasis added).

The

Board recognizes the importance of documentary

evidence both in providing a

plausible context for an asylum

applicant's claim, and in making credibility assessments:

Without background information against
which to judge the alien's testimony, it
may well be difficult to evaluate the
credibility of the testimony. . . . The
applicant's statements cannot . . . be
considered in the abstract, and must be
viewed in the context of the relevant
background situation.
A knowledge of
conditions in the applicant's country of
origin . . . is an important element in
assessing the applicant's credibility.
-2222

Matter of Dass,
_______________
(citation

Int.

omitted).

consideration
and the Board .

Dec. 3122,
"[T]he

of asylum

general

WL 331876,
rule

at

*10

regarding

the

applications by

immigration judges

. . is that they must be

evaluated based on

matters of record (i.e., based

the parties to the
*9.

1989

on the evidence introduced by

case under consideration).

Id.
___

at LEXIS

Cordero
confirming

submitted

persecution of

ample

religious, community,

activists, religious lay workers

This evidence
viewed by
claims

suggests that

hounding

inciting rebellion

him

all such activists

and others

among poor

as

peasants in

helping to improve their quality

direct corroboration,

constitute

and social

and members of the clergy.6

tend to

responsible

be

persecution

account of activities

the
or

events which

the

threat

similar to those

of

for

the countryside,
of life.

thus extremely important for contextualizing, in

of

evidence

the shadowy, quasi-military "death squads" Cordero

were

simply for

documentary

It is

the absence

Cordero

claims

persecution

on

of other victims

in

Guatemala.
Both the judge and the Board failed to address much
of Cordero's evidence.

With

all deference, it

is far

too

____________________
6. The Board nowhere suggests
that this evidence
is
unreliable, and we note that it comes from sources, such as
the State Department and internationally recognized nongovernmental organizations, generally regarded by courts of
law as reliable.
-2323

extensive

and significant

statement.

This

to

be dismissed

failure

unreasonably

with a

general

eviscerates

the

applicant's attempt to establish the objective element of his

asylum claim.
2.
Pattern and Practice
2.
Pattern and Practice
______________________________
The

"Immigration

applicant to provide

Judge

shall

evidence that he

not

require

the

would be singled

out

individually for persecution" if he establishes his inclusion

in and

identification

persons against which

persecution
statutory

in his
grounds

with "similarly

situated" groups

there is

a "pattern

or practice"

country on

account of

any of

for

asylum.

of
of

the five

C.F.R. 208.13(b)(2)(i).

Cordero supports his fear of persecution on account of one or

several

statutory

concerning the

grounds

treatment of persons in

similar activities

and

motivated by

social concerns as himself.

items,

with considerable

reports

from

international

Guatemala engaged in
similar religious

and

There are some 150 pages of news

the

human

documentation

State
rights

Department,
and

and

from

non-governmental

organizations.
Again, the Board makes no mention of this evidence,
and

no effort

regulation.

to

engage

in

Id.
___

The

record

the inquiry

necessitated

contains upwards

of

by

sixty

specific
murder

incidents
and other

of threats,
infliction of

kidnapping, disappearances,
harm upon

the

clergy, lay

-2424

church

workers

activities.

and

others

It also

connected

to

church-related

contains information regarding similar

violenceagainsthundredsof
othersinvolvedincomparableactivities.
V.
V.
__
CONCLUSION
CONCLUSION
__________
Although, for

the reasons

stated, we

believe the

present decision denying eligibility cannot stand, we are not

sufficiently moved to depart from the usual practice and rule
as matter of law.
Board.
Board

We remand for further consideration by the

At the same
that we have

time, in all

fairness, we apprise

grave doubts whether

the

a reasonable fact-

finder making the full study this record calls for could deny

refugee
should

status
be

to Cordero.

granted

to

The

Cordero,

statutorily eligible refugee, is a

determination.
Remanded.
________

-2525

question whether
assuming

him

to

asylum
be

matter for administrative