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appealhearinghabeas corpuswillasylumdeportation
attorneywillasylumvisadeportation

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Sotelo-Aquije v. Slattery

Facts

Petitioner came illegally from Peru to the United States and was taken to a detention center. The government began exclusion proceedings. Petitioner filed an application for political asylum and withholding of deportation, claiming if he returned to Peru, he feared persecution from a guerrilla group. A hearing was held before an immigration judge, who denied the application. Petitioner then appealed to the Board of Immigration Appeals (BIA), which upheld the judge's decision. Petitioner sought review of by filing for writ of habeas corpus, which was denied on the ground that the BIA's determinations were supported by substantial evidence, and petitioner appealed.

Sotelo fled Peru in November 1992 and arrived at a New York airport with a false passport and no visa. He was taken to a detention center, where he remains today. The government commenced exclusion proceedings against Sotelo, which he defended by filing an application for political asylum and/or withholding of deportation. See 8 U.S.C. 1158(a), 1226, 1253(h).

Issue

Whether the BIA's conclusion that petitioner did not have a well-founded fear of persecution on account of his political opinion was supported by the record.

Whether the BIA's conclusion that petitioner did not have a well-founded fear of persecution on account of his political opinion was supported by the record.

Rule

An alien may be granted asylum if she determines that the alien is unable or unwilling to return to his country of origin 'because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.'

An alien may be granted asylum in the discretion of the Attorney General, 1158(a), if she determines that the alien is unable or unwilling to return to his country of origin 'because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion,' id. 1101(a)(42)(A).

Analysis

The court found that the BIA's conclusion that Sotelo was not targeted because of his political acts and opinions was not supported by the record and contradicted by the BIA's own findings. The BIA acknowledged that Sotelo spoke out against the Shining Path and that only those CUAVES members who actively opposed the guerrilla group became targets of its violence. The evidence compelled the conclusion that Sotelo had a well-founded fear of persecution on account of his political opinion and actions opposing the Shining Path.

We find, however, that the BIA's conclusion that Sotelo was not targeted because of his political acts and opinions is not supported by the record and indeed is contradicted by the BIA's own findings, and we therefore reverse its denial of asylum.

Conclusion

The court reversed the BIA's denial of Sotelo's claim for asylum and remanded for further proceedings. The court also set aside the BIA's denial of Sotelo's request for withholding of deportation.

As noted above, we reverse the BIA's denial of Sotelo's claim for asylum and remand for further proceedings as appropriate.

Who won?

Petitioner, Luis Alberto Sotelo-Aquije, prevailed because the court found that the BIA's conclusion regarding his fear of persecution was not supported by the evidence.

Petitioner, Luis Alberto Sotelo-Aquije, prevailed because the court found that the BIA's conclusion regarding his fear of persecution was not supported by the evidence.

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