Unpublished Disposition, 841 F.2d 1129 (9th Cir. 1988)

WALLACE, Circuit Judge, dissenting:

Because I believe that Artiga is materially distinguishable, I respectfully dissent. In Artiga, we concluded that Artiga Turcios who (1) had been in the army, (2) had been one of three men from his company who had received specialized combat training consisting of a two-month course on survival and how to attack the army, (3) had participated in numerous battles with guerrillas both before and after the training and estimated that at least fifteen guerrillas were killed in these battles, and (4) had seen guerrillas in his neighborhood seeking to recruit him to the guerrilla cause established a "clear probability" of persecution and was therefore entitled to withholding of deportation. Artiga, 829 F.2d at 723-24.

In contrast to Artiga Turcios, Giron-Gonzalez has merely been in the army. He has received no specialized combat training other than a self-described fifteen day "commando course" in which his entire company went without food and water. There is no indication that any guerrillas were killed in the battles his unit fought. Certain guerrillas did come to his home and ask to speak with "Giron-Gonzalez" but it is not clear that they wished to speak with him since that was also his brother's name. Moreover, the guerrillas made no threats or statements indicating they intended to abduct or harm "Giron-Gonzalez." The fact that the guerrillas visited his home was not unusual in that his family's home is located on the outskirts of town and that his family sometimes provides the guerrillas food and water. Given that deportation does not require Giron-Gonzalez to return to his hometown, see Quintanilla-Ticas v. INS, 783 F.2d 955, 957 (9th Cir. 1986), it is not objectively reasonable to conclude that the guerrillas will seek out an unskilled, low-ranking former member of the army who has the combat experience he described. Giron-Gonzalez is essentially in no different position than hundreds, or perhaps thousands, of other individuals who are currently or have been in the army.

Because the BIA's conclusion that Giron-Gonzalez failed to meet the "well-founded" fear standard applicable to an asylum request was correct, a fortiori the BIA was also correct in denying his request for withholding of deportation. I would deny the petition.