Unpublished Disposition, 911 F.2d 737 (9th Cir. 1990)

MEMORANDUM^* 

Manuel De Jesus Arevalo ("Arevalo") petitions for review of the Board of Immigration Appeals ("BIA") decision dismissing his appeal from the Immigration Judge ("IJ") order that denied Arevalo eligibility for asylum and withholding of deportation. We affirm.

FACTS

Arevalo is 28 years old, and is a native and citizen of Guatemala. At the IJ proceeding, Arevalo conceded deportability and conceded that he had entered the United States on or about May 5, 1986 without being inspected by a United States immigration officer. Guatemala was directed as the country of deportation.

Arevalo applied for political asylum, withholding of deportation and in the alternative, voluntary departure. In support of these applications, Arevalo testified that in August of 1985 he was ordered to serve in the Civil Patrol. He testified that he is disabled as a result of having polio and therefore went to the commissioner and requested that he be excused from serving in the Civil Patrol. Arevalo testified that he was afraid that if there was a confrontation, he would be unable to run and save himself because of his disability. Arevalo also testified that he did not wish to serve in the Civil Patrol because the Civil Patrol is armed with only sticks. Arevalo's request to be excused from serving was denied. Although other people told the commissioner that Arevalo had a good excuse for not wishing to serve, the commissioner still refused to release him and, instead, gave him a date on which to report for duty to the Civil Patrol. Arevalo did not report.

Arevalo testified that he then left his town of Tiquisate and went to LaGomera. Arevalo remained in LaGomera for approximately five months, working on various farms. Arevalo then decided to leave Guatemala. On his way out of Guatemala, he stopped at Tiquisate to see his mother. He testified that his mother told him that people came looking for him on 15 occasions asking why he had not reported for duty. Arevalo left Guatemala on January 15, 1986. Arevalo testified further that, while in Mexico, he heard from his mother that an anonymous letter had been sent to his house asking where he was.

Arevalo's mother and a 17 year old brother and 32 year old sister still reside in Guatemala. To Arevalo's knowledge, they have not encountered any problems.

Arevalo testified that when the commissioner denied his request to be excused from serving in the Civil Patrol he did not pursue that matter further. He did not attempt to see the commissioner's supervisor as he was told by people that this would be interpreted as his being against the government. Arevalo's application reveals further that a brother-in-law of his uncle disappeared for refusing to serve in the Civil Patrol. Consequently, he was afraid that by refusing to serve in the Civil Patrol he would disappear as well.

On December 14, 1987, the IJ denied Arevalo eligibility for asylum and withholding of deportation, but granted his request for voluntary departure. On May 21, 1988, the BIA dismissed Arevalo's appeal.

DISCUSSION

I. Eligibility for Asylum.

To establish eligibility for asylum, an alien must demonstrate that he is unwilling to return to his country due to "persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a) (42) (A).

In Cardoza-Fonseca, this court defined "well-founded fear." There is both an objective component ("well-founded") and subjective component ("fear") to the statutory test. Cardoza-Fonseca v. INS, 767 F.2d 1448, 1452-53 (1985), aff'd, 480 U.S. 421 (1987); see also Blanco-Comarribas v. INS, 830 F.2d 1039, 1042 (9th Cir. 1987).¹ 

To satisfy the subjective prong of the test, an alien must prove that his fear is "subjectively genuine." Blanco-Comarribas, 830 F.2d at 1042 (quotation omitted); Sanchez-Trujillo v. INS, 801 F.2d 1571, 1579 (9th Cir. 1986). This prong of the test is satisfied by an alien's credible testimony stating a genuine fear of persecution. Blanco-Comarribas, 830 F.2d at 1042. Because the IJ did not question Arevalo's credibility, this prong of the test is satisfied.

To satisfy the objective prong of the test, an alien must show that his fear has enough of a basis in reality that it can be considered well-founded. Id. Mere irrational fear is not enough. Id. There must be a valid reason for the fear. Id.; see also Bolanos-Hernandez v. INS, 767 F.2d 1277, 1283 (9th Cir. 1984).

The record contains substantial evidence that undercuts Arevalo's claim that he fears persecution by the government. Arevalo was able to live and work in LaGomera for a period of approximately five months until he left, without encountering any problems. He learned of the alleged visits by the authorities to his mother's house only when he saw his mother in Tiquisate on his way out of Guatemala. According to Arevalo's testimony, his sole reason for refusing to serve in the Civil Patrol was his fear that in a confrontation he would not have the same ability as a fully able-bodied person to protect himself. He did not refuse to serve because of any convictions he had regarding actions of the Civil Patrol, and has not presented any evidence showing that the authorities imputed any political motives to his refusal to serve.

Arevalo argues that the Guatemalan government cannot constitutionally compel service in the civil patrol, but that the government, for political reasons, persecutes those who do not serve. Whether or not the Guatemalan government improperly forces its citizens to serve in the Civil Patrol, Arevalo has not demonstrated a reasonable probability that he will be persecuted on account of any political opinion, actual or imputed.

For these reasons, the BIA's determination that Arevalo has not shown a well-founded fear of persecution is supported by substantial evidence. See Quintanilla-Ticas v. INS, 783 F.2d 955, 957 (9th Cir. 1986).

II. Withholding of Deportation.

To qualify for withholding of deportation, an alien must show that it is more likely than not that he will be persecuted "on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1253(h); Blanco-Comarribas v. INS, 830 F.2d at 1041. "Withholding is not required if the alien 'might' or 'could' be subject to persecution. A clear probability ... of persecution must be demonstrated." Blanco-Comarribas, 830 F.2d at 1041 (emphasis added).

In denying Arevalo's claim for withholding of deportation, the BIA used the same evidence that it used to deny eligibility for asylum. However, Arevalo's burden of proof is much greater. The mere assertion of fear of possible persecution is not sufficient to establish a clear probability of persecution. Id. Because Arevalo has failed to show a well-founded fear of persecution, he cannot meet the higher burden of establishing a clear probability of persecution.

The BIA's determination is supported by substantial evidence. See Blanco Lopez v. INS, 858 F.2d 531, 533 (9th Cir. 1988). Arevalo has failed to demonstrate a "clear probability" that he will be persecuted if he returns to Guatemala.

AFFIRMED.

NOONAN, Circuit Judge, dissenting:

Manual de Jesus Arevalo is a 30-year-old native of Guatemala. In childhood he suffered polio and, as he expresses it, half of his body, "the arm, the leg," is "like dead."

On August 15, 1985 a local official, described by him as "the commissioner" told him that he must go on patrol looking for suspicious men from 8:00 in the evening until 6:00 in the morning. Arevalo objected that if he were attacked he could not run. The "commissioner" told him to show up anyway at the end of August.

Arevalo fled to a village 50 kilometers away and worked there for a short while on different farms. Once in September he revisited his mother, hiding when he made the trip. His mother told him that 15 times persons came looking for him because he had not shown up for the patrol. He told his mother to inform no one of where he had gone. Arevalo was told by other people in his village that anyone who did not go on the patrol would be regarded by the government as "a contrary" or "a subversive" or "a guerilla." Arevalo was told by his uncle that his uncle's brother-in-law had been kidnapped because of his failure to patrol. Arevalo felt fear that he too would be punished by the military for failing to patrol. He left Guatemala for Mexico and ultimately entered the United States without inspection.

For the reasons stated by me in Canas-Cuadras v. INS, No. 88-7478, slip op. 8163, 8175 (9th Cir. Aug. 8, 1990), the Board was mistaken in denying Arevalo asylum and this court errs in affirming the Board.