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Gonzalez v. Immigration and Naturalization Service

filed: May 3, 1996.


Petition to Review a Decision of the Immigration and Naturalization Service. INS Nos. A28-716-701, A28-716-702.

Before: David R. Thompson and Andrew J. Kleinfeld, Circuit Judges, and Stephen V. Wilson, District Judge.*fn* Opinion by Judge Kleinfeld.

Author: Kleinfeld

KLEINFELD, Circuit Judge:

In this asylum case, the Board of Immigration Appeals (BIA) erred regarding Rosaura Gonzalez Gallegos's petition by taking administrative notice of the effect of political changes in petitioner's country after she left, without giving her a fair opportunity to be heard. We, therefore, grant Gallegos's petition for review and remand the case. We deny Jeaneth Catuse's petition for review.


The petitioners are a mother, Mrs. Gallegos, and her adult daughter, Ms. Catuse, both citizens of Nicaragua. Both petition for review of the BIA's denial of their separate asylum claims, based on fear of persecution by the Sandinistas. The daughter entered the United States almost three years later than the mother, and their histories in Nicaragua are different, so we set out the facts separately. The Immigration Judge (IJ) made an express finding that both petitioners' testimony was "at all times truthful, candid, and forthright," and the BIA made no express finding on credibility, so we accept as undisputed the facts as testified to by the petitioners. Singh v. Ilchert, 63 F.3d 1501, 1506 (9th Cir. 1995).

The asylum hearing was held April 27, 1990. The date is significant because Violeta Chamorro won her upset election to the presidency of Nicaragua on February 25, 1990, and took office on April 25, just two days before the hearing. Petitioners sought a continuance of the hearing, but the IJ denied it because the hearing had already been continued several times.

Mrs. Gallegos testified that the Sandinistas had harassed and harmed her and her family because they were anti-Communist and had been supporters and employees of the Somoza government. Her mother was a Somoza party activist, and her stepfather was a Judge during the Somoza regime. He did not remain a Judge because a bomb exploded in 1988, and he was left a maimed deaf-mute. The Sandinista government took her mother's lands away and gave them to Sandinista combatants. One of her brothers was "incarcerated because he was always speaking about the government. Another brother, he's crazy because they sent him to the service." Her sister-in-law was beaten in public when she objected to her son being drafted. Her previous husband had helped her son escape from the country to avoid the draft and was held prisoner before being released for health reasons.

Mrs. Gallegos had been deprived of a ration card and of freedom to buy goods in the legal market because of her and her family's political beliefs, so she obtained food on the black market at three times the legal price. She worked as a merchant, but was forced to liquidate her business because she was denied the card she would need from the Ministry of Commerce to buy inventory. She then was supported by family members for over a year until she left on July 1, 1985. Despite being put out of business, she testified that she did not leave Nicaragua for economic reasons, stating "we have money."

"Contra" was painted on Mrs. Gallegos's house in 1980. She painted it over, but it was done again in 1983. Then she surrounded the house with iron bars. Government soldiers came to her house in 1981 and told her to "integrate yourself to life, a Sandinista life." Two or three months later they came again and said "it was going to be very bad for me should I not join them."

The woman who headed the official Sandinista neighborhood committee, called the CDS, lived three doors down from Ms. Gallegos. "She told my neighbor that should . . . should we keep on going like that wanting to do nothing we would be disappeared . . . with a bomb." The death threats continued, the last about five months before Mrs. Gallegos left Nicaragua. Mrs. Gallegos saw the CDS chief daily and "had a great fear of her, I was horrified." The CDS chief threatened Mrs. Gallegos to her face, and told her she could have her "disappeared."

Mrs. Gallegos testified that the CDS chief had the power to carry out her threat, but had not as yet done so. Mrs. Gallegos was not arrested and no violence was done to her person.

Mrs. Gallegos testified that she was scared to go back to Nicaragua because she feared that the threats made against her would be carried out. By the time of the hearing in 1990, a relative immigrant visa to the United States had been approved for Mrs. Gallegos, because she had married a United States citizen. Getting it, however, would have required her to return to Nicaragua for administrative processing in the United States Consulate there, and she was not willing to return.

Ms. Catuse, the daughter, left Nicaragua on December 12, 1987, two and a half years later than her mother. While in high school, she became an adherent of the Jehovah's Witnesses, and quite active with the Jehovah's Witness congregation. Because of her religious belief, she refused to comply with the high school requirement that she go out and cut coffee in the mountains. The reason was that students had to wear government uniforms and carry weapons when they cut coffee. As a result of her refusal, she could not get a high school diploma. She became a nurse's assistant, but refused an assignment in the mountains because it also required that she wear a government uniform and carry a weapon. She left the hospital where she was working as a nurse's assistant and left Nicaragua three or four months later.

The kind of problems she encountered were that when the Jehovah's Witnesses worshipped, Sandinistas would gather outside the Kingdom Hall and call the Jehovah's Witnesses "CIA." Eventually the government took away the Kingdom Hall from the congregation and removed the permit to hold meetings. The government also arrested the male members of the congregation.

After leaving her hospital job, Ms. Catuse supported herself by buying and selling, and lived in various houses, including the house her mother had left her. The government then took the house her mother had left her because Ms. Catuse was not living there when they took a census. "Should my ...

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