Arlington, Virginia 22203                        

CHARGE: Section 212(a)(7)(A)(i)(1) of the Immigration and Nationality Act (Act), an alien not in possession of a valid entry document.

APPLICATIONS: Asylum, pursuant to section 208 of the Act;Withholding of Removal, pursuant to section 24 1 (b)(3) of the Act;APPEARANCESON BEHALF OF APPLICANT:

Wilfredo 0. Allen, Esq.
Manuel Alvarez, Esq.
Luis Fernandez, Esq.
2250 S.W. 3rd Avenue, Suite 201
Arlington, Virginia 22203

ON BEHALF OF THE SERVICE:

Bruce B. Dizengoff. Esq.
Deputy District Counsel
4420 N. Fairfax Drive, Room 500
Miami, Florida 33129

DECISION AND ORDER

I. Procedural History

The applicant, Jose Leonardo Fernandez Pupo (Applicant), is a fifty-four year old, married male alien, native and citizen of Cuba, who allegedly diverted or hijacked a commuter plane and forced it to land at the United States Naval Base at Guantanamo Bay, Cuba on July 7, 1996. Following a jury trial in the United States District Court for the District of Columbia, Applicant was acquitted of the criminal charges filed pursuant to that incident.

This is a removal proceeding instituted against Applicant pursuant to section 212(a(7)(A)(i)(1) of the Immigration and Nationality Act (INA or Act), as an alien not in possession of a valid entry document. The Immigration and Naturalization Service (INS or Service) commenced proceedings by filing with the Court a Notice to Appear (NTA, see Government's Exhibit 1) on May 30, 1997. At a master calendar hearing held on June 20, 1997, Applicant conceded service of the NTA, admitted the factual allegations contained therein, and conceded removability. Accordingly, this Court finds Applicant removable as charged by clear, convincing, and unequivocal evidence. Woodby v. INS, 385 U.S. 276 (1966); 8 C.F.R. 242.14(a) (1987).

Applicant has requested relief from removal in the form of asylum pursuant to INA 208, and withholding of removal pursuant to INA 241(b)(3). Generally, an application for asylum shall at the same time constitute an application for withholding of deportation. 8 CFR 208.3.

The individual hearing date was originally set for August 8, 1997, within two months of the master calendar. Respondent rejected this date and the matter was continued to September 2, 1997, during which time the Court heard the majority of the testimony given by both parties. At Respondent's request, the merits hearing was continued to September 22, 1997 to allow Respondent to produce additional witnesses to rebut the Service's case; no such witnesses, however, were produced on that date.

At the conclusion of the hearings on September 22, 1997, this Court reserved its decision and allowed three weeks, for the submission of post-trial briefs. Having properly considered the oral testimony of all witnesses and all documents submitted by the parties, this Court holds that Applicant failed to meet his burdens of proof and persuasion in order to receive asylum under Section 208(a); specifically, this Court finds Applicant's testimony not credible, that any fear of persecution was not "on account of" Applicant's political opinions, and that Applicant's case does not warrant a favorable exercise of discretion. This Court further holds that Applicant does not qualify for withholding of removal pursuant to section 241 (b)(3), but would stay such removal under the provisions of the United Nations Convention Against Torture.

II. Applicant's testimony

Applicant's military service and Communist Party affiliation

That Applicant was a highly decorated officer in the Cuban military is one of the few undisputed facts of this case. Applicant's service with the Cuban Government spanned thirty-six years, culminating in his recently retired position of Lieutenant Colonel in the Ministry of Interior, Province of Guantanamo. For the thirty years between 1960 and 1990, Applicant's service in the Cuban military intelligence unit involved extensive travel to, among other places, Africa, Sierra Leone, and Angola. Applicant's myriad experiences as an intelligence officer included terms as Director of Intelligence in the Guantanamo Province of Cuba, Chief of Intelligence for the army corps, and Chief of Military Intelligence in the Gaza Province of Mozambique ending in 1990. Specifically, Applicant's duties as an intelligence officer entailed making strategic evaluations of the armed forces of enemy countries, including the United States.

In 1990, Applicant returned to Cuba to be incorporated into the Cuban Ministry of Interior as the Chief of Instruction and Mobilization for the Province of Guantanamo located next to the United States Naval Base at Guantanamo Bay. As the Chief, Applicant was responsible for the instruction and mobilization of military forces. Applicant held this position for approximately six and one-half years before July 7, 1996, when he forced the commuter plane to land at the U.S. Naval Base and sought asylum.

Applicant testified that in addition to his military affiliations, he was a member of the Commnist Party for twenty-two years, having joined in January of 1964.

"Cinco de Agosto" -- Applicant's claimed disenchantment with Castro's regime

Applicant claims that beginning in 1989 and prior to his return to Cuba from Mozambique in 1990, he began to have serious personal doubts about Castro's government and the Communist Party. Such doubts were allegedly the result of two separate incidents in which Applicant disapproved of the government's actions.

First, Applicant disapproved of the Party's treatment of General Arnoldo Ochoa, a highly decorated and respected military officer who was incarcerated and eventually executed on supposedly trumped-up charges of narcotics trafficking. His execution, Applicant avers, was Castro's response to General Ochoa's dissident views and attempts to change the Cuban government. Two of Applicant's witnesses, Armando Valladarez, former U.S. Ambassador to the Commission of Human Rights for the United Nations, and General Rafael Del Piño Diaz, former Brigadier General of the Cuban Armed Forces, testified that the Cuban Criminal Code provides a maximum penalty of 15 years incarceration for the offense of drug trafficking. This disparity, they suggest, is evidence that General Ochoa was framed because of his dissident views.

Second, Applicant disapproved of the Party's treatment of the Minister of Interior, Division General Jose Abrantes Hernandez who was accused of deviating funds assigned to his Ministry. Applicant testified that the charges against General Abrantes were also fabricated, and that his execution was not only disproportionate to the crime charged, but was a direct response to General Abrantes's harboring of dissident views.

Applicant was "profoundly impacted" by these two incidents and began to form doubts about the Cuban government prior to his return in 1990. Applicant stated that in 1992 after his return from Mozambique, he voiced these serious concerns to the Communist Party at open meetings. Applicant testified that he was sanctioned and suspended by the Party as a result.

Applicant testified that he became further disenchanted with the Cuban government when in 1994, several incidents occurred in which public demonstrations or uprisings were suppressed by security forces. For example, an uprising in the Sancti Spiritus Province was suppressed, only to have another uprising in Havana put down by the Cuban government in August. Furthermore, Applicant testified that 1994 marked the year in which violent acts of hostility were made by the Cuban government towards the civilian population: two speedboats were allegedly destroyed; a transporter was allegedly downed on March 13; and in July 1994, Applicant claims that the Cuban government sank and destroyed a ferryboat leaving Havana. Applicant stated that he and other intelligence officers were intentionally kept uninformed of these incidents, and that he only learned of them through his own travels and conversations with others.

Based on these events and discussions with other officers, Applicant testified that he formed a clandestine group known as "Cinco de Agosto" for the purpose of bringing about change to the government; specifically, by ousting Castro. This group and its "movement," Applicant claims, has a national agenda operating at a provincial level, and because of its high need for security, Applicant refused to disclose the names of any of its 500- 1 000 members.

Applicant suggests that the secrecy of his involvement with "Cinco de Agosto" was compromised sometime in 1995, when security forces supposedly began to observe and investigate Applicant. In fact, Applicant claims to have been sanctioned four or five times between 1992, when he first spoke out against the government in a public forum, and 1996, when he forced the commuter plane to land at the U.S. Naval Base. In one such incident, Applicant testified that he was the victim of trumped-up charges by the Cuban government when he failed to timely return pesos to the government that were given to him in trust. In support of his application for asylum, Applicant would analogize this situation to those faced by Generals Ochoa and Abrantes. Applicant also testified that in November 1995, the Cuban Government assigned a vehicle to follow him and placed a tape recorder in his room. Realizing the gravity of the situation, Applicant claims that he made legal but unsuccessful efforts to get his wife and other relatives out of Cuba.

Applicant testified that his already strong suspicions that he was under investigation became unequivocal when he was forced to retire from the Ministry of Interior in May 1996. By June of that same year, Applicant was informed by other members of "Cinco de Agosto" that his arrest was imminent, and that the group had decided as a collective whole both that he should escape and his means of departure. With this directive and fearing torture and execution, Applicant claims that he had little to no choice but to follow his course of action.

July 7, 1996 air-jacking incident On July 3, 1996, Applicant claims to have received an emergency signal from a fellow member of "Cinco de Agosto" indicating that security forces intended to detain him. Notwithstanding Applicant's admission that he is the President of the movement, Applicant testified that the movement selected the plane (i.e., its size and passenger capacity), the pilot, and provided him with two pistols. In essence, Applicant claims to have been acting at the behest of "Cinco de Agosto."On Julv 7, 1996, Applicant dressed in his military uniform in order to "intimidate" soldiers of lower rank and circumvent security measures while boarding the aircraft. With the commuter plane en route from Bayamo, Cuba to Santiago de Cuba, Applicant bore two .22-caliber pistols and "diverted" or "commandeered" the sixteen passenger plane to the U.S. Naval Base at Guantanamo Bay. Applicant testified that he never mentioned anything about explosives, and that those government witnesses who claimed he had at the criminal trial were lying. Applicant also claims that because his attention was focused upon the pilots in the cockpit, he was unaware of women and children screaming in the cabin. Lastly, Applicant testified that he was forced to flre one shot towards an open window in order to inform the pilots of the gravity of the situation, and that the entire incident took no longer than four to five minutes. Again, Applicant's decision to "divert" the plane was allegedly because the movement required him to do it in order to save the lives of hundreds of "Cinco de Agosto" members who, if their names were to be disclosed, would face certain death at the hands of Castro's government.

Government's Impeachment Witness - Lawrence Wenko

The Government called Special Agent Lawrence Wenko of the Federal Bureau of Investigation to refute Applicant's testimony. Special Agent Wenko interviewed Applicant approximately eight to nine days subsequent to his arrival at the U.S. Naval Base, Guantanamo Bay. Applicant was advised of and waived his rights to confidentiality.Special Agent Wenko testified that during Applicant's debriefing sessions at the U.S. Naval Base, Applicant made the following representations to him:

Applicant was being persecuted by the Cuban government, as evidenced by his being sanctioned on four separate occasions for allegations of engaging in extramarital affairs and misappropriating government funds. In addition to the government's interest in Applicant, Applicant sought entrance to the United States for more practical reasons (e.g., economics, availability of medicine and food).

Applicant was fully aware that his act of hijacking or diverting the plane would violate U.S. and Cuban law. Just prior to the act itself, Applicant felt that he might have been monitored by the Cuban internal control. On July 7, 1996, Applicant boarded the plane that he had personally selected as carrying women and children and being flown by a pilot whom Applicant knew he could psychologically control. Applicant boarded the plane with a briefcase and a box marked with diplomatic seals and containing two guns, When Applicant revealed the guns, he held one to the pilot and the other to a small girl, supposedly the daughter of a Cuban major. Applicant fired one gun outside a cockpit window.

Perhaps more compelling than what Applicant said is what he didn't say to Special Agent Wenko during the interviews at the Naval Base. Special Agent Wenko testified that Applicant never mentioned to him "Cinco de Agosto" during the interviews, and that the first time Special Agent Wenko heard of the clandestine organization was during the criminal trial in U.S. District Court. Furthermore, Applicant never indicated that he had to protect the identity of those who helped him escape (i.e., fellow members of "Cinco de Agosto").

Similarly, Applicant never mentioned his desire and the conspiracy to overthrow Castro's regime. Applicant never told Special Agent Wenko that his office was ransacked or that he made public comments against the government in 1992. In short, although Applicant indicated that the government had sanctioned him on several occasions, he did not represent to Special Agent Wenko any dissident views or participation in an anti-Castro organization, much less indicate that any persecution was "on account of" his political views or substantiate the claims with documentary evidence.

II. Expert testimony

Both Applicant and the Service produced expert witnesses that testified as to the current conditions in Cuba; specifically, what would be the most likely result of a military officer who attempted to defect but was returned to Cuba, whether or not "Cinco de Agosto" is an existing and viable dissident group, and alternative means of departing Cuba.

Applicant's expert witnesses

Applicant's first witness was Armando Vallarez, former U.S. Ambassador to the Commission of Human Pights for the United Nations. Mr. Vallarez had been imprisoned in Cuba for 22 years, and during that time, witnessed several extra-judicial murders. Mr. Vallarez testified that such murders have been taking place for over 35 years, and that the victims are often dissident military officials who are attempting to change the Cuban government. Mr. Vallarez cited the General Ochoa case, and opined that Applicant would be more certain of execution if returned today when Cuba is a "systematic abuser of human rights," than if he were returned only a few years ago.

Applicant's second witness was General Rafael Del Piño Diaz, former Brigadier General and Deputy Chief of the Cuban Air Force and Air Defense. Similar to Applicant's duties, General Diaz's duties entailed employing intelligence officers and gathering information about potential enemies. General Diaz testified that because he was convinced that the Cuban system of government did not work, he defected in May 1987 by flying himself and his family to Key West.

General Diaz stated that military officers who advocate change in Cuba's government or military can be subject to 30 years imprisonment and the highest of penalties, including execution before a firing squad. He testified that a dissident would have an unfair trial at best, and made reference to General Ochoa and his allegedly trumped-up charges of drug trafficking. General Diaz stated that Castro effectively ignored the Cuban Criminal Code's 15 year limit for a drug trafficking offense and claimed that Ochoa's execution was justified because he betrayed the country's trust. As to the existence of clandestine anti-Castro groups advocating change in Cuba, General Diaz testified that it is likely such groups exist, especially given the totalitarian nature of Castro's regime. Further, General Diaz speculated that there are probably more dissidents in Cuba today than there were when he defected in 1987 when the Soviet Union still existed. Finally, General Diaz stated that Applicant's alternative means of departing Cuba were probably limited, as his son, having been incarcerated for three years as a political prisoner, had tried several times to avail himself of the Havana Interests Section but was told he did not qualify for asylum.

Applicant's third witness was Frank Calzon, the current Director of Cuban Programs for Freedom House, an American independent human rights organization. Mr. Calzon testified in depth about egregious human rights violations and extra-judicial killings in Cuba, as well as the inaccessibility to military officials of the U.S.-Cuba Interest Section in Havana and other means of departure. Mr. Calzon spoke of the General Ochoa execution as a case in point of the proposition that anything not accepted by the government can be construed as "political," calling for the arbitrary administration of laws by Cuban officials. Moreover, the Cuban government does not have qualms about charging military officers with non-political crimes as a pretext for punishing government opposition. One's learning of another's dissident views without reporting that knowledge is also punishable. As other military officers have been executed for less serious offenses, Mr. Calzon testified that any military officer in Applicant's situation would be justified in fearing for his life.

Mr. Calzon further testified that while Cuban Nationals who believe they've been persecuted can go to the American Interests Section lo claim asylum the First Order of the Commander in Chief prohibits Cuban military officers from meeting with foreigners. For nonmilitary Cuban Nationals who seek asylum, they must first be invited to the Interests Section by sending a letter of request. Upon arriving at the Interests Section, the first person they meet with is a Cuban military officer who verifies their identification and purpose for the visit. Mr. Calzon testified that if a Cuban military officer, specifically Applicant, attempted to go to the Interests Section, he would most certainly be imprisoned and possibly executed; furthermore, his family would be fired from their jobs and expelled from universities. The Interests Section, Mr. Calzon maintains, was not a viable option for Applicant. And while Mr. Calzon acknowledged that over 100 individuals have fled Cuba by water this year, a third of those who attempt die in the process.

Service's expert witness

The Service produced one expert witness, Janice Jacobs, who, for the past two years, has been the State Department's Deputy Director of the Office for Cuban Affairs. The crux of Ms. Jacob's testimony centered around the various and alternate means of departing Cuba. Ms. Jacobs testified that while there are both legal and illegal means of departing Cuba, the 1994 migration agreement between the United States and Cuba was designed to promote a safe, legal, and orderly migration system, and that in her opinion, it is never necessary to hijack a plane in order to depart Cuba.

Ms. Jacobs elaborated upon the various legal channels of migrating from Cuba to the United States. Firstly, Applicant could have attempted to procure 1 of the 20,000 some travel documents issued to Cuban Nationals each year per the 1994 migration agreement. In addition, Jacobs recognized at least three official, legal channels of communication between the Cuban millitary and the United States: 1) monthly meetings regarding immigration at the U.S. Naval Base, 2) communications with the Coast Gaard regarding safety at sea and interdiction issues, and 3) law enforcement matters. Ms. Jacobs indicated that a dissident military official would be able to communicate with the United States through these channels. Aside from these official channels, U.S. communications with Cuba are almost invariably made via the Foreign Ministry.

As to her opinion on whether military officials have been allowed to emigrate informally through the American Interests Section, Ms. Jacobs stated that over the past three years, the Interests Section has processed between 10 to 15 of such cases. The Interests Section provided Ms. Jacobs 8 cases, in which 1 active military officer and 7 retired officials went through the in-country program and received exit visas from the Cuban government. These successful asylees included persons who were active with human rights organizations, a person who was charged with piracy and disproportionately sentenced to 11 years in prison, and an air force pilot who was accused of treason. In brief, Ms. Jones (sic) testified that it is not at all difficult to approach the Interests Section in Havana and apply for asylum, but conceded on cross-examination that the Interests Section "screens" people to ensure they have either passports or appointments for the requested service. Despite acknowledging the Cuban Military Code provision that prohibits military officers from making foreign contacts, Ms. Jacobs suggested that the Interests Section was a readily available alternative for Applicant.

Ms. Jacobs also spoke to the various illegal channels of departing Cuba. Since the passage of the 1994 migration agreement in which the United States agreed to return Cuban Nationals interdicted at sea, over 700 Cubans have been interdicted. Of those 700, some have been returned to Cuba absent protection concerns, and others have been processed at the Naval Base in Guantanamo Bay and / or brought to the United States for miscellaneous reasons. Additionally, between 50 to 2,000 Cuban Nationals arrive safely each year to Guantanamo Bay by either swimming, boating or "fence jumping" (i.e., walking in through the mine fields).

When asked for her opinion as to what would happen to Applicant if he were returned to Cuba, Ms. Jacobs stated that his involvement in a premeditated and armed hijacking would probably subject him to between 10 and 30 years imprisonment, but that there is no reason to believe he would be executed.

As to the existence of the group "Cinco de Agosto," Ms. Jacobs testified that she had no personal knowledge of the group's existence, and that, despite asking contacts at human rights organizations, of which there are allegedly "hundreds," no one had ever heard of "Cinco de Agosto." Ms. Jacobs stated that the Interests Section knows of anti-Castro groups with memberships of only 5 people. However, the Interests Section has never heard of "Cinco de Agosto," even though Applicant claims that it is an organization with between 500 and 1,000 members. See Government Exhibit 3.10, p. 19 (Applicant's testimony at criminal trial). Ms. Jacobs did concede on cross-examination, however, that if "Cinco de Agosto" does in fact exist, secrecy would be necessary to avoid comprormsing the Identity of the group's members.

III. Asylum

A. Credibility finding

1. Applicable law

In all applications for asylum and withholding of deportation, the Court must make a threshold determination of credibility. An Immigration Judye's findings of credibility of witnesses appearing before him are ordinarily given great weight. Matter of Pulla, 19 I&N Dec. 467 (BIA 1982). Indications of credible testimony are consistency on direct and cross, consistency with the written application, and the absence of embellishment as the applicant repeatedly tells his story. Matter of B-, Int. Dec. 3251 (BIA 1995). Testimony is considered not credible when it is inconsistent, contradictory with current country conditions, or inherently improbable. Matter of SMJ Int. Dec. 3303 (BIA 1997).

The applicant's testimony cannot be rejected solely bccause it is self-serving. Matter of Acosta, supra, In fact, uncorroborated but credible testimony by the applicant may be sufficient to sustain the burden of proof. 8 CFR 208.13(a), 208.16(b). Similarly, virtually all courts have found that uncorroborated testimony is sufficient to establish a claim for asylum so long as it is credible, persuasive, and specific. Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987); Sotelo-Agtuije v. Slattery, 17 F.3d 33, 36 n.2 (2d Cir. 1994).

2. Analysis

After careful consideration of all of the testimonial and documentary evidence, this Court finds that Applicant is not credible. Although Applicant testified in a passionate and convincing manner, the testimony itself is inconsistent and contradicts the evidence of record.

As to the very existence of the group "Cinco de Agosto," Special Agent Wenko testified that Applicant never mentioned his affiliation with the group or made any reference to it during the three days of interviews from July 16, 1996, to July 18, 1996, at the Guantanamo Bay Naval Base. Applicant contends that while he was still at the U.S. Naval Base, he was not in a position to readily disclose the names of others in the secret organization, lest their lives be put in jeopardy, and therefore did not mention the group to Special Agent Wenko. Applicant failed to cite his dissident views and affiliation with "Cinco de Agosto" as the primary reasons for the government's interest in him until the criminal trial over ten months later. It seems, however, that if in fact Applicant's dissident beliefs and involvement with a clandestine organization necessitated his departure from Cuba, Applicant would have at least mentioned it at some point prior to the criminal trial.

Furthermore, this Court finds it difficult to believe that an anti-Castro group with an estimated 500 to 1,000 members can escape all recognition by American sources. Ms. Jacobs of the State Department testified that no one, including herself, contacts at human rights groups, and the U.S. Interests Section, had heard of "Cinco de Agosto." This discrepancy is especially telling given that the Interests Section knows of groups with as few as five members. The "secrecy" with which "Cinco de Agosto" operates, moreover, works to Applicant's advantage in that it provides him with a life-or-death excuse not to disclose its membership.

Applicant would also have "Cinco de Agosto" relieve him of any personal responsibility for his diversion of the aircraft. Because Applicant was allegedly fleeing the country at the behest of the movement, Applicant claims that his actions of hijacking a plane filled with women and children and flown by a psychologically fragile pilot were not his own. Throughout the criminal trial and removal proceedings, Applicant attested to the movement's control over his actions and decisions. Applicant's supposed position as the President of this organization, however, renders Applicant's submission to it an unlikely scenario. While it is not impossible that "Cinco de Agosto" is so democratic and organized that a consul or comittee could determine the fate of the group's leader, as Applicant avers, Applicant's selective invocation of "Cinco de Augusto" suggests otherwise.

This Court further finds Applicant's version of the July 7, 1996, events to be less than credible. While the Service has referred to the incident as air-jacking or hijacking and an act of terrorism, Applicant couches the severity of his actions with euphemisms like "diversion" and "commandeering" of the plane. This Court believes the former of the two depictions to be the more accurate. It is difficult to conceive of a situation where, as Applicant maintains, lives are not placed in danger by the bearing of weapons in a small commuter airplane and the forced landing thereof. It is even more difficult to conceive of a situation where the passengers do not feel threatened by or are oblivious to a hijack taking place, especially given the fact that a gun was discharged. The collective testimony of the witnesses at the criminal trial clearly contradicts that of the Applicant.

As to the testimony of Manuel Perez Carcanon, the pilot who claimed Applicant touched him with the pistol, Applicant claims he lied. As to the testimony of Arnaldo Pina Muztelier, the newspaper distributor who claimed Applicant stated his briefcase contained explosives, Applicant claims he lied. As to the testimony of Dr. Sandra Suarez Laffita, the dentist who claimed Applicant kept one gun on the pilot and the other on the passengers and shot the gun directly above the pilot's head, Applicant claims she was never on the plane. As to the testimony of Ramon Martinez Lorez, who was traveling with his wife and two children and claimed not only that Applicant stated he had explosives but threatened to kill his daughter, Applicant claims he lied.

Special Agent Lawrence Wenko, able to speak to the demeanor of these witnesses who testified at the criminal trial, stated his belief that their testimony was not coerced. According to Agent Wenko, the witnesses were visibly upset while testifying; some became so emotional that they started crying.

Applicant argues that the Cuban government, military, or Communist Party has lodged a conspiracy plot against him, orchestrating the testimonies of the above witnesses and manufacturing evidence. As mentioned, he "swear[s] to God and [his] mom" that Sandra Suarez Laffita was not on the plane, that she was not a seventeenth passenger, but that the Cuban government had effectively hired her to testify against Applicant. Furthermore, at the criminal trial, the Government produced a signed document by Applicant dated January 6, 1996, allegedly requesting leave from the Ministry of Interior. Applicant maintains that the document was forged, and that he was in fact forced to retire from the Ministry of Interior in May 1996. Although this Court would not dismiss the subversive and often abusive tactics of a Communist regime, it finds such an elaborate scheme involving coordinated and prepared testimonies in an American court to be rather far-fetched.

There also appears to be numerous inconsistencies within Applicant's own testimony. When examined at the criminal trial as to how he diverted the plane, Applicant stated that he "diverted the plane by alerting the passengers that the plane was going to be diverted to Guantanamo." Gov. Ex. 3.10, p. 5. Applicant later testified that he shot the warning shot "because the passengers, the pilot and the copilot didn't think that I was deviating the plane." Gov. Ex. 3.10, P. 7. Applicant suggested on numerous occasions before this Court, however, that his act of hijacking or "diverting" the plane was confined to the cockpit of the plane, that he did not say anything about explosives to the passengers, that he never pointed a pistol at any passenger, and that the passengers neither screamed nor cried as the plane was being rerouted. Moreover, it seemed as if Applicant was attempting to mitigate the severity of his actions in Immigration Court lest he himself be deemed a persecutor, an issue not relevant to the criminal proceeding.

Applicant testified at the criminal trial that he "never thought of threatening a child," and that the reason he diverted the plane to the naval base was "[b]ecause there were four children and three women, and they weren't at fault for what [he] was doing and why [he] was doing it. And this was the closest point to which the plane could be diverted." Government's Ex. 3.10, p. 8-9. However, during cross examination in the removal proceeding, Applicant conceded that he would have aborted his plans to hijack the plane and attempted another day if there had been no women or children on board. The presence of women and children, in other words, was necessary to the successful completion of the hijacking. In all likelihood, Applicant would not have both required the presence of women and children in order for him to go forth with the hijacking, and felt compelled to land the plane at Guantanamo Bay because the women and children were not at fault.

Finally, this Court finds Applicant not credible as compared with the documentary evidence submitted by the Service. Several of these documents refer to Applicant's status with the Cuban government and the Communist Party just prior to Applicant's departure. Govemment's Exhibit 3.1, "Sworn Declaration for Award of Pension," indicates that Applicant was awarded a pension by the Ministry of the Interior only six months prior to his departure, within the time frame when Applicant's actions were allegedly being scrutinized by the government. Also, Government's Exhibit 3.2, "Evaluation," is a favorable evaluation of Applicant signed by the General Secretariat. Applicant's failure to return "the per diem within the time limit" is the only negative remark on the evaluation. Government's Exhibit 3.3, "Sanction Resolution," reiterates Applicant's "delay in returning [money) to finances" and characterizes it as "irresponsibility in the workplace." Collectively, these documents indicate that Applicant was in relatively good stead with the Cuban government / military just prior to his flight from Cuba and do not indicate in any way that Applicant was under surveillance because of any dissident beliefs. This discrepancy between what the documents indicate and what Applicant claims serves as further grounds upon which to base the Court's adverse credibility finding.

B. Statutory Eligibility

1. Applicable law

Applicant bears the evidentiary burdens of proof and persuasion in applications for both asylum and withholding of deportation. Matter of Acosta, 19 I&N Dec. 211 (BIA 1985); see also 8 C.F.R. 208.13. An alien seeking a discretionary grant of asylum must establish that he is a "refugee" within the meaning of INA 101(a)(42)(A). The alien must demonstrate an unwillingness or inability to return to his country 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. 8 C.F.R. 203.13. A well-founded fear of persecution may be established upon a lesser showing than the clear probability of persecution which must be shown for withholding of deportation. INS v. Cardozo-Fonseca, 480 U.S. 421 (1987). An applicant for asylum has established a well-founded fear if he shows that a reasonable person in his circumstances would fear such persecution. Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987).

Persecution is defined as unjust harm or suffering inflicted upon an individual by the government of a country or by persons the government is unable or unwilling to control in order to punish him for possessing a belief or characteristic a persecutor finds offensive and seeks to overcome. Matter of Acosta supra at 222. In order to show it is Iikely he will become the victim of such persecution, an alien must show (1) that the persecutor is aware, or could become aware, that the alien possesses this belief or characteristic; (2) that the persecutor has the capability of punishing the alien, and (3) that the persecutor has the inclination to punish the alien. Id at 226; Matter of Mogharrabi, supra at 446.

In determining whether an alien is eligible for asylum, the alien's subjective mental state must be considered against. the background of circumstances prevailing in the alien's home country. The objective reasonableness of the alien's fear can be based on what has happened to others similarly situated, as reported in the current Department of State Country Conditions and Comments on Asylum Applications or or other reliable sources. Matter of Exame, 18 I&N Dec. 303, 304-5 (BIA 1982). In some cases, the only available evidence of the alien's subjective fear is the alien's own testimony. This may suffice where the testimony is believable, consistent, and sufficiently detailed to provide a plausible and coherent account of the basis for the alien's fears. Matter of Dass, 20 I&N Dec. 120, 124 (BIA 1989); Matter of Mogharrabi, supra at 448. This does not mean that introducing supporting evidence is at the alien's option. Generally such evidence must be presented when available. See generally, Matter of SMJ Int. Dec. 3303 (BIA 1997); Matter of Dass, supra at 124. This is particularly true when the basis of an alien's asylum claim are allegations of general conditions in his or her home country. In such cases, corroborative background evidence may well be essential. Id. at 125.

2. Analysis Predicated upon the Court's adverse credibility finding, Applicant is ineligible to receive asylum because he has failed to meet his burdens of proof and persuasion that he has a well-founded fear of persecution on account of one of the five statutory grounds.

As to the three factors outlined in Mogharrabi, the government or military of Cuba could indeed become aware that Applicant possesses dissident political views, especially after his testimony here and in the U.S. District Court. As the governrnent in Cuba, it would no doubt have the capability of punishing Applicant, and based on Cuba's record on human rights, it certainly has the inclination to punish Applicant. The Court has no doubt that if the Cuban government learned of Applicant's dissident views and Applicant were returned to Cuba, Applicant could very well meet the same fate as Generals Ochoa and Abrantes. Applicant would be in a category of "persons most at risk of persecution in Cuba," as noted by the State Department's Profile of Asylum Claims & Country Conditions, November 1997. The State Department Report also indicates that it is illegal both to leave Cuba without permission(1) and to apply for asylum. Id.

(Footnote 1: Although the State Department Report notes that it is illegal to leave Cuba without permission, the Report goes on to state that "it appears that in recent years, the government has adopted a de facto depenalization of [illegal departure]. Most of those charged with illegal exit are receiving punishments of fines or house arrest rather than imprisonment. However, if an intending escappe committd some associated crime ... those acts would be punished." Id at 8.)

However, there is absolutely no evidence, other than Applicant's own testimony that has failed to persuade this Court, that the Cuban government was aware at the time of Applicant's departure of Applicant's membership in a clandestine group or dissident views. Although the Cuban government has expressed an interest in Applicant, this Court finds no reason to believe that Applicant's departure from Cuba in July 1996 was necessitated by the government's disapproval or knowledge of his beliefs. Applicant claims to have been sanctioned in 1992 for protesting openly against the Communist regime. However, the documents supplied by Applicant indicate that he was either in good standing with the government or was being sanctioned for relatively minor infractions during the months preceding the hijacking. Applicant may claim that as with Generals Ochoa and Abrantes, such infractions are often trumped-up and serve as proxies for more severe political sanctions. Given the fact that no American sources have ever heard of "Cinco de Agosto" and Applicant's failure to mention his dissident views until the criminal trial over ten months later, this Court finds no reason to make this leap of faith.

Additionally, Applicant has failed to demonstrate that he has been persecuted in the past or that there is a reasonable possibility of his persecution if returned to Cuba on account of his political opinion. The Board of Immigration Appeals has held that an applicant may not obtain relief from deportation by creating, a well-founded fear of persecution predicated upon actions taken or expressed while in the United States. See Matter of Kojoory, 12 I&N I731 (BIA. 1967),Matter of Nghiem 11 I&N 1569 (BIA 1966). Accordingly, Respondent's revelation while in the United States that he is a dissident should not form the factual predicate for a finding by the Court that the Respondent has demonstrated a well-founded fear of persecution.

Furthermore, Applicant is statutorily ineligible for both asylum and withholding of removal because there are serious reasons for believing he has committed a serious nonpolitical crime outside the United States prior to his arrival in the United States, INA 208(b)(iii), 241 (b)(3)(B)(iii), and Applicant has engaged in a terrorist activity. INA 212(a)(3)(13)(i)(I). The Court finds Applicant's hijacking of the plane on July 7, 1996 to be grotesque and bereft of any real or legitimate political motive. The Court is no more persuaded by Applicant that the "diversion" only lasted four minutes than it is by Applicant attributing his actions to the "movement." If anything, the Court finds Applicant's act to be one of cowardice involving the frightening of women and children and the jeopardizing of innocent lives.

Service argues that Applicant is statutorily barred from a grant of asylum because he himself was a persecutor. INA 208(b)(2)(A)(i). Ms. Jacobs made tlhis suggestion while testifying, although she did not present individualized information or specific evidence of Applicant having been a persecutor. Instead, Ms. Jacobs claimed that persecution of others is inferable from Applicant's history and background, that as a high-ranking officer with Cuban military intelligence, Applicant necessarily would have engaged in harassing people and performing "dirty tricks" against enemy countries including the United States. While the Court does not deny the possibility that Applicant's military positions may have entailed harming others, it is unmwilling to find that Applicant "persecuted" others on one of the five statutory grounds absent specific and credible evidence of such persecution while in Cuba.

C. Exercise of Discretion 1. Applicable law In addition to establishing statutory eligibility, an applicant for asylum has the burden of establishing that the favorable exercise of discretion is warranted. Matter of Shirdel, 19 I&N Dec. 33 (BIA 1984). To meet this burden the alien must present evidence of any positive factors that the alien believes will support the favorable exercise of discretion. These factors include the character of the applicant and whether he or she has relatives legally in the United States or other personal ties to this country which were the motivation to seek asylum here rather than elsewhere. However, generally, absent any adverse factors, if otherwise eligible, asylum should be granted in the exercise of discretion. Matter of Pula, 19 I&N Dec. 467, 474 (BIA 1987).

2. Analysis This Court, even if it were to deem Applicant credible and statutorily eligible for the granting of asylum, would not find that Applicant's case warrants a favorable exercise of its discretion for at least two reasons.

First, the egregious manner in which Applicant hijacked the plane and his unrepentant attitude towards those who testified against him bring great umbrage to the Court. It is clear from the witnesses at both the criminal trial and removal proceedings, as well as Applicant's own prior inconsistent statements, that Applicant's actions constituted an act of terrorism and violence. Applicant would have the Court believe that the hijacking was isolated to the cockpit of the plane, that nothing was said about explosives, that no women or children were screaming, that a single round was aimed and fired out the window, and that the entire "diversion" lasted a total of approximately four minutes. The Court finds as a more likely scenario the one established by the collective testimonies of the pilot and passengers of the plane, one where Applicant threatened both pilot and passengers, where women and children were screaming in fear for their lives, where a gun was fired close to the pilot's head, and where four minutes seemed to last a lifetime. Applicant's insistence that all eye witnesses produced by the Governmnent were either collectively lying or simply not there is not credible.

Second, Applicant's actions were not warranted given the alternative means of departure he could have taken. As the State Department letter of August 7, 1997 indicates and as Janice Jacobs testified, Applicant could have availed himself of the "several legal channels available to Cuban nationals wishing to immigrate to the United States." Applicant could have applied pursuant to the 1994 joint communique between the United States and Cuba, from which some 20,00 Cuban migrants are admitted annually, Over the past two years, at least 10-15 active and retired military officers have obtained refugee status through the in-country refugee-processing program in Havana and were given exit permits by the Cuban Government. Applicant could have applied for the Special Cuban Mgration Program (a.k.a., the Cuban lottery). In each of the last two years, between 7,000 and 8,000 Cubans have been admitted to the United States through the lottery. Also, Applicant could have approached the U.S. Interests Section regarding his desire to come to the United States, Aside from these legal channels, hundreds of Cubans are able to flee successfully from Cuba each year by swimming, fence jumping, or rafting. As there does not appear to be any justification for Applicant's hijacking a plane with innocent men, women, and children aboard, this Court chooses not to exercise its discretion in favor of Applicant.

IV. Withholding of Deportation

An alien seeking the mandatory withholding of deportation from any country must show that his "life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion." INA 243(h)(1). To make this showing, the alien must establish a "clear probability" of persecution on account of one of the enumerated grounds. INS v. Stevic, 467 U.S. 407, 413 (1984). This clear probability standard requires a showing that it is more likely than not that the alien would be subject to persecution. Id at 429-30.

As Applicant has failed to meet the lower burden of proof required for asylum, he has also failed to meet the higher standard of proof required for withholding of removal to Cuba. See Matter of Mogharrabi, supra. Moreover, the Court would deny Respondent's claims for both asylum and withholding of removal based upon Respondent's failure to demonstrate persecution on account of his political opinion, the commission of a "serious nonpolitical crime" pursuant to INA 208(b)(Iii), 241(b)(3)(B)(iii), the commission of an act of terrorism pursuant to INA 212(a)(3)(B)(i)(1), and the aforementioned discretionary factors.

V. United Nations Convention Against Torture The Court must address the issue of whether the Applicant is not removable based on the United Nations Convention Against Torture, which the United States acceded to and entered into force on November 20, 1994 [Senate] Treaty Doc. 100-20. Treaties are considered the law of the United States. U.S. Const. Art. VI, cl. 2. Therefore, this treaty has the effect of law.

Article 3 of the Torture Convention prohibits a signatory from returning a person to a country "where there are substantial grounds for believing that he would be in danger of being subjected to torture." Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, Art. 3, (Dec. 10, 1994).

It is clear to the Court that the Applicant would, indeed, be tortured by Castro's military regime if he were returned to Cuba. The United States Department of State in a letter written pursuant to 8 C.F.R. 208.11

commented, The applicant claims that he would be arrested and executed if returned to Cuba. If he is returned to Cuba, the applicant faces arrest for his hijacking of the Cuban commuter plane. His trial and conviction would appear to be a virtual certainty. At the least, he would likely face a long term of imprisonment, The Cuban authorities have not, to the best of our knowledge, credited his claim of being a member of a clandestine group, so we do not at this time have credible information as to whether he would be charged with other offenses unrelated to hijacking.

United States Department of State Letter dated August 7, 1997. Furthermore, the State Department's Profile of Asvlum Claims & Country Conditions, November 1997, states "[a]lthough the U.S. asylum process is confidential, it appears possible that in some cases the Cuban authorities could determine if a returnee had applied for asylum. Depending upon the retumee's record, they might ascribe dissident political motives to the application." Id.

The Court can only speculate as to what Applicant would be sanctioned for if returned to Cuba. Indubitably, Applicant will be punished severely for his act of hijacking the Cuban plane. Given the high profile nature of this case, it is likely that the Cuban government also has knowledge of Applicant's defection and would elect to punish him on that ground. The Court does not need to establish this to invoke the Torture Convention, however, as it only needs to establish Applicant's well-founded fear "on account of' his political views for asylum and withholding purposes.

Based on this information, the Court finds that the Applicant would be subjected to torture upon his return to Cuba. However, the Court does not appear to possess jurisdiction to prevent the removal of the Applicant under this treaty because the Department of Justice has not developed procedures to implement Article 3 of the United Nations Convention Against Torture. In an unpublished case, the Board of Immigration Appeals on this same issue granted both parties' motion that the proceedings be held in abeyance pending the Department of Justice development of implementing regulations on the treaty. Matter of RNG, File No. A73 878 111 (BIA 1996). (The Court has relied upon an unpublished case from the BIA for guidance in these somewhat unchartered legal waters.) Accordingly, the Court will order the Applicant removable, but not to Cuba unless or until the implementing regulations of the United Nations Convention Against Torture provide for such action.

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