Jose Mauricio DOMINGUEZ-RIVERA, Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 89-70211.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 17, 1990.
Decided Sept. 20, 1990.

Before ALARCON and POOLE, Circuit Judges, and WILLIAMS, District Judge.**

MEMORANDUM*

Jose Mauricio Dominguez-Rivera, a native of El Salvador, petitions for review of a decision of the Board of Immigration Appeals dismissing his appeal from an immigration judge's denial of his applications for asylum and withholding of deportation.

FACTS1

Dominguez is a thirty-year-old citizen of El Salvador who entered the United States illegally in 1984. He grew up on a large farm called Santa Elena, four kilometers from the town of Zacatecoluca. The farm employed 150-500 workers depending on the season. Dominguez's father was the supervisor of the farm, overseeing the work in the fields, contracting and paying the workers. From ages 14-23, Dominguez was his father's helper and supervised about a hundred people when his father was unavailable.

At an unspecified time, some of the workers began to organize into "guerrilla groups," "something similar to a union." They held meetings with some members of guerrilla organizations outside the farm; these other people "gave them orders." They also held meetings on the farm, about seven of which Dominguez attended in place of his father who could not attend because of his alcoholism. At the meetings the workers discussed the treatment given to the people, the food, salary and conditions. Dominguez was expected to take messages to the employer. He also took messages from the employer to the workers. The workers, some of whom were guerrillas, demanded that Dominguez get a favorable response to their demands. Some of the demands he met; others he did not, explaining that only the boss had authority. The workers would then say that he, like his father, had a good life and that, contrary to his assertions, he did have power to make their lives better. They accused him and his father of supporting the landlord's ideas. When the landlord refused their demands, they burned crops and put signs on the farm walls reading, "Better salaries, better food, a better life condition, death to capitalism, death to the landlords." Several armed men came to Dominguez's home in October 1978, forced the door open, tied up his father, ordered the family to lie face down on the floor, and demanded arms and money. Another night they came looking for food and took all they found.

In August 1979 the workers threatened Dominguez and his father: "If you don't collaborate with our cause you and your father will pay the consequences." Dominguez refused to collaborate, explaining that he owed a duty to the property and the owner. Dominguez and his father then obtained a house in the city of Santa Tecla and spent a week there. After another meeting with the workers they returned to the farm, but they spent nights in Santa Tecla. The workers had told them they could return if they obeyed their demands. Even so, they continued to receive threats. Dominguez once saw a sign which said, "Death to the Dominguez family." Between 1979 and 1982, some nine bombs were placed near the door of his house; one permanently injured his little sister. On the walls and door of the house were put signs saying, "Traitors." On about three occasions, when government agents came to investigate the attacks, Dominguez gave names of guerrillas to the government.

The workers had said that the family had until 1983 to "integrate with them or they would kill us." In 1983, the workers again came to the house searching for arms and food. They told the family that they wanted the farm. Dominguez's parents then decided to leave the farm and move to Zacatecoluca. Dominguez stopped working at the farm and, after unsuccessfully looking for a job, began a carpentry and mechanics apprenticeship in Santa Tecla, which was farther from the farm than Zacatecoluca and where he felt a little bit safer. The apprenticeship paid a small salary. Later in 1983, his father, who had for a while worked at the farm during the day and spent nights in Zacatecoluca, stopped working at the farm as well and went to live in Santa Tecla. The father visits his family in Zacatecoluca once or twice a month. The supervisor who replaced his father on the farm is connected with the guerrillas, and guerrillas control the farm now. Dominguez's father still processes the payroll and delivers messages from the new supervisor to the owner; for this work he receives the same salary as when he supervised at the farm.

In May 1984, "unknown persons" tried to recruit Dominguez. They said, "You are the son of Miguel Dominguez who is working at the farm and he didn't want to help us with our cause.... Take care of yourself because you'll pay for the consequences, because you are a young man. What you can do is you can join our forces because you know a lot about our lives." Dominguez said he would join them because he was too frightened to say no. He did not, however, join them. In July 1984, some other persons, related to the previous recruiters, detained him briefly and asked him why he would not paint signs against the army; they later released him without harm. At the end of July they asked him again why he would not paint signs.

While Dominguez was living with his grandmother in Santa Tecla, the army took him to its headquarters to recruit him. His grandmother intervened on his behalf, and he was released. In August 1984 he received a telegram ordering him to report for military service. He ignored it. Dominguez has known people who were killed for failing to respond to such telegrams. He didn't respond because he felt that to do so would place his family in even greater danger from the guerrillas.

Dominguez left El Salvador soon after receiving this telegram. On direct examination, Dominguez testified that he obtained a passport at the beginning of 1984, before the army tried to recruit him. When confronted on cross with a copy of his passport dated August 1984, however, he testified that he obtained it then and left the country the same month; "I don't remember very well the date I obtained it, but I did obtain it that year."

Since Dominguez left El Salvador, his family has received phone calls from unidentified persons asking about him. Since his father left Zacatecoluca in 1983, people have tried to burn the house and posted signs reading "Traitors." Some guerrillas believe that Dominguez has given information about them to the government; threats have been made that he will have to pay the consequences for the deaths of some guerrillas. Dominguez has learned that a supervisor's helper on another farm was killed for refusing to collaborate with the guerrillas. Dominguez's father and a friend have sent letters advising that the danger to Dominguez's life is great, and he should not return. The friend wrote that the guerrillas had put signs on the wall of his house saying that "the sons of the Administrator of the Santa Elena farm will die." Dominguez's brothers have been sent to Santa Tecla because it is considered too dangerous for them in Zacatecoluca.

INS PROCEEDINGS

Dominguez was apprehended while trying to enter the United States without inspection. He was charged with deportability under 8 U.S.C. Sec. 1251(a)(2). An order to show cause why he should not be deported and a warrant for his arrest were issued. Through counsel, Dominguez admitted all the allegations in the order and conceded deportability. He made a request for asylum under 8 U.S.C. Sec. 1158, which is also construed as a request to withhold deportation under 8 U.S.C. Sec. 1253(h). 8 C.F.R. Sec. 208.3(b). After a hearing, the Immigration Judge issued an oral decision denying both requests. Finding that Dominguez had not shown a well founded fear of persecution, the IJ denied the application for asylum. The IJ also found that Dominguez had not shown that if he did fear persecution, he feared persecution for one of the reasons listed in the statute. The IJ also indicated that he had reason to question Dominguez's credibility, but even assuming him credible and taking all facts as true, Dominguez had failed in his burden of proof for both asylum and withholding of deportation.

In an opinion dated March 31, 1989, the Board of Immigration Appeals dismissed his appeal. Dominguez timely petitioned this court pursuant to 8 U.S.C. Sec. 1105(a).

STANDARD OF REVIEW

This court reviews for substantial evidence BIA's finding of whether the alien has established a well founded fear of persecution making him a "refugee" under 8 U.S.C. Sec. 1101(a)(42) and thus eligible for asylum. Arteaga v. INS, 836 F.2d 1227, 1228 (9th Cir.1988). Questions of law, such as whether BIA applied the correct legal standard, are reviewed de novo. Id.

The substantial evidence test "is essentially a case-by-case analysis requiring review of the whole record." Turcios v. INS, 821 F.2d 1396, 1398 (9th Cir.1987). The court must consider the record as a whole, weighing both the evidence that supports and the evidence that detracts from the agency's decision. Desrosiers v. Secretary, 846 F.2d 573, 576 (9th Cir.1988). The court must affirm where there is such relevant evidence as reasonable minds might accept as adequate to support a conclusion, even if it is possible to draw two inconsistent conclusions from the evidence. St. Elizabeth Community Hosp. v. Heckler, 745 F.2d 587, 592 (9th Cir.1984). A reviewing court may not reverse BIA simply because it disagrees with the Board's evaluation of the facts. Diaz-Escobar v. INS, 782 F.2d 1488, 1493 (9th Cir.1986).

Credibility findings are reviewed for substantial evidence. Turcios, 821 F.2d at 1399. Although this court grants substantial deference to credibility determinations made by immigration judges, Sarvia-Quintanilla v. INS, 767 F.2d 1387, 1395 (9th Cir.1985), an IJ "who rejects a witness's positive testimony because in his or her judgment it lacks credibility should offer a specific, cogent reason for [his] disbelief." Turcios, 821 F.2d at 1399 (internal quotations omitted). "[N]o special deference is given to the derivative inferences the IJ draws from the findings of fact." Laipenieks v. INS, 750 F.2d 1427, 1438 (9th Cir.1985) (Boochever, J. dissenting) (citing Penasquitos Village, Inc. v. NLRB, 565 F.2d 1074, 1079 (9th Cir.1977)).