Unpublished Disposition, 844 F.2d 792 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 844 F.2d 792 (9th Cir. 1988)


No. 87-7009.

United States Court of Appeals, Ninth Circuit.

Submitted Oct. 20, 1987.* Decided March 30, 1988.

Before KILKENNY, CANBY and LEAVY, Circuit Judges.


Victor Rene Hernandez-Hernandez petitions for review of the Board of Immigration Appeals (BIA) decision denying his application for asylum1  and withholding of deportation.2  Hernandez contends that the Immigration Judge (IJ) and the BIA applied an incorrect legal standard in denying his application. Hernandez further argues that the IJ and the BIA mischaracterized his treatment by groups in El Salvador, and failed to consider his subjective fears.3 

Section 208(a) of the Refugee Act of 1980 (Act), 8 U.S.C. 1158(a) (1982), empowers the Attorney General to grant an alien political asylum if the alien is a "refugee." A "refugee" is any person outside of his country of nationality or habitual residence who is unwilling to return to that 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 U.S.C. § 1101(a) (42) (A) (1982). In contrast, section 243(h) of the Act prohibits the Attorney General from deporting an alien if that alien's life or freedom would be threatened in the country of destination on account of race, religion, nationality, membership in a particular social group or political opinion. 8 U.S.C. § 1253(h) (1982).

The "well-founded fear" standard of Sec. 208(a) is more generous than the "clear probability" standard of Sec. 243(h). Lazo-Majano v. I.N.S., 813 F.2d 1432, 1434 (9th Cir. 1987); Bolanos-Hernandez v. I.N.S., 767 F.2d 1277, 1282-84 (9th Cir. 1985). Hernandez contends that the IJ and the BIA erred by applying the same standard to both the asylum and the prohibition of deportation claims.

The record indicates that the IJ failed to distinguish the two standards of proof applicable to petitioner's separate claims. However, the BIA explicitly recognized that the clear probability standard applies to prohibition of deportation claims, while the well-founded fear standard, as set forth in Cardoza-Fonseca v. INS, 767 F.2d 1448 (9th Cir. 1985), aff'd. 107 S. Ct. 1207 (1987), applies to asylum claims. Where the BIA correctly acknowledges the two standards to be distinct, it is not required to assess all of the evidence under separate headings. Quintanilla-Ticas v. I.N.S., 783 F.2d 955, 957 (9th Cir. 1986). We conclude that the BIA applied the correct standards in denying petitioner's application for asylum and prohibition of deportation.

We next consider whether the BIA erred in finding that petitioner did not meet the requirements for Sec. 208(a) relief. We review asylum decisions in two stages. First, we must determine whether substantial evidence supports the BIA's determination that petitioner is not a refugee. Sanchez-Trujillo v. I.N.S., 801 F.2d 1571, 1578 (9th Cir. 1986). Second, if petitioner qualifies as a refugee, we review the BIA's denial of asylum for an abuse of discretion. Vides-Vides v. I.N.S., 783 F.2d 1463, 1466 (9th Cir. 1986).

To demonstrate a well-founded fear of persecution, Hernandez must show (1) an objective component, which requires a showing of credible, direct and specific evidence supporting a reasonable fear that he faces persecution; and (2) a subjective component, which requires his fear to be genuine. Diaz-Escobar v. I.N.S., 782 F.2d 1488, 1492 (9th Cir. 1986).

To meet the first component of the test, Hernandez testified to several street encounters: one resulted in three days of military training against petitioner's will, another in the shooting of petitioner's cousin by a national guardsman, and a third in the robbery of petitioner by a group of alleged guerillas. Hernandez also testified that he was subjected to interrogation by local police for failure to possess identification papers. In addition, Hernandez asserts that his failure to comply with a military draft notice potentially subjects him to reprisals in the event that he does return to El Salvador.

Although an applicant's testimony will suffice in the absence of documentary evidence of past persecution or threats of future persecution,4  that testimony must refer to "specific facts that give an inference that the applicant has been or has good reason to fear that he or she will be singled out for persecution." Cardoza-Fonseca, 767 F.2d at 1453 (9th Cir. 1985), aff'd, 107 S. Ct. 1207 (1987); quoting Carvajal-Munoz v. INS, 743 F.2d 562, 574 (7th Cir. 1984).

Hernandez has not alleged any facts indicating that he has been singled out for persecution or harassment. General evidence of widespread conditions of violence affecting all residents of a country, by itself, is not sufficient to establish the objective basis of the well-founded fear of persecution. Zepeda-Melendez v. I.N.S., 741 F.2d 285, 290 (9th Cir. 1984); Martinez-Romero v. I.N.S., 692 F.2d 595-96 (9th Cir. 1982). The street encounters recounted by Hernandez do not show that he faces dangers or threats appreciably different from those faced by his fellow countrymen. Unlike Hernandez, the petitioner in Bolanos presented evidence both of violent conditions in his native country, and a specific threat to his life made by guerrillas. Bolanos-Hernandez, 767 F.2d at 1284. Similarly, in Garcia-Ramos v. I.N.S., 775 F.2d 1370 (9th Cir. 1985), the petitioner presented evidence that the government knew of petitioner's extensive activities on behalf of an opposition political organization as a specific ground for his fear of persecution. Garcia-Ramos, 775 F.2d at 1372. In contrast, Hernandez' general fear of random encounters does not show a fear of prosecution on account of his political beliefs or other reason that would qualify him for asylum under Sec. 208. Nor is the fear that Hernandez may be drafted into military service, with the purpose of which he disagrees, a sufficiently specific basis for an asylum request under Sec. 208(a). Kaveh-Haghigy v. I.N.S., 783 F.2d 1321, 1323 (9th Cir. 1986).

Substantial evidence therefrom supports the BIA's ruling that Hernandez failed to demonstrate a well-founded fear of persecution specifically aimed at him by the army, the national guard, or any other organization within El Salvador on account of his race, religion, nationality, membership in a particular social group, or political opinion. Because Hernandez failed to establish eligibility for asylum under Sec. 208(a), he necessarily failed to meet the more stringent standard of "clear probability" of persecution necessary to obtain prohibition of deportation relief. Sanchez-Trujillo, 801 F.2d at 1581; Rebollo-Jovel v. I.N.S., 794 F.2d at 448.

The decision of the BIA is AFFIRMED.


The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3


Hernandez is ineligible for legalization because he entered the United States after January 1, 1982. See 8 U.S.C. § 1255a (Supp. IV 1986)


Petitioner did not request prohibition against deportation. However, requests for asylum are automatically considered requests for withholding of deportation under 8 C.F.R. Sec. 208.3(b) (1987)


Petitioner's claim that the IJ failed to consider relevant documentary evidence is not cognizable on this appeal because it was not first raised on appeal to the BIA. See 8 U.S.C. § 1105a(c) (1982)


While petitioner's claim that the IJ gave inadequate consideration to documentary evidence providing background information on conditions in El Salvador is not before this court, see supra note 3, such general evidence would not provide the requisite, specific showing of a threat of harm to the applicant required by Sec. 208(a)