904 F. 2d 710 - Escobar-Ramirez v. Immigration and Naturalization Service

MEMORANDUM*

Jose Angel Escobar-Ramirez ("Escobar") is an unlawful alien who fled El Salvador after receiving threatening notes from a leftist opposition guerrilla group. His applications for asylum and withholding of deportation were denied by an Immigration Judge; on appeal, the Board of Immigration Appeals ("Board") affirmed these rulings.

While his appeal was pending before the Board, Escobar sought to reopen his deportation proceedings based on new evidence consisting of a declaration from his mother in El Salvador stating that after Escobar left El Salvador, five armed guerrillas came to the mother's home and asked for Escobar. When she told the guerrillas that Escobar was in the United States, the guerrillas responded that they had come to kill him.

The Board denied reopening, finding "such a sequence of events to be highly unlikely and not sufficiently supported." Certified Administrative Record at 3. This was error. The Board must accept as true the factual statements in an alien's motion to reopen unless they are inherently unbelievable. Aviles-Torres v. INS, 790 F.2d 1433, 1436 (9th Cir.1986). Escobar's proffered evidence is not inherently unbelievable and accordingly the Board should not have made a credibility finding or demanded independent corroboration. See id. (credibility); Hernandez-Ortiz v. INS, 777 F.2d 509, 514 (9th Cir.1985) (corroboration).

We conclude that the Board erred by not granting Escobar's motion to reopen. We do not reach the merits of his applications for asylum or withholding of deportation. Accordingly, we vacate and remand with instructions that the matter be remanded to the Immigration Judge for consideration of the new evidence.

VACATED AND REMANDED FOR FURTHER PROCEEDINGS.