Unpublished Disposition, 849 F.2d 1476 (9th Cir. 1988)

MEMORANDUM^** 

Remegio Nipay-Robles petitions pro se for review of a Board of Immigration Appeals (BIA) order denying his applications for withholding of deportation and asylum under the Immigration and Nationality Act of 1952. Petitioner contends that the immigration judge incorrectly assessed the evidence that petitioner would be persecuted for opposing the government of President Ferdinand Marcos. Because the regime of President Marcos ended in February 1986, petitioner further requests a new hearing to determine whether he would be persecuted by pro-Marcos forces that the Philippine government would be unable to control.

We review withholding of deportation orders and determinations of statutory eligibility for asylum under the substantial evidence standard. Espinoza-Martinez v. INS, 754 F.2d 1536, 1539, n. 4 (9th Cir. 1985). We must defer to the BIA's findings of fact if they are substantially supported by the record. McMullen v. INS, 658 F.2d 1312, 1318 (9th Cir. 1981).

To qualify for withholding of deportation under section 243(h) of the Act, 8 U.S.C. § 1253(h), the alien has the burden of establishing a clear probability that, after deportation, he would be persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion. INS v. Stevic, 467 U.S. 407, 413 (1984). To prove that persecution is clearly probable, or "more likely than not," Stevic, 476 U.S. at 424, the alien must provide concrete or documentary evidence. Bolanos-Hernandez v. INS, 767 F.2d 1277, 1284 (9th Cir. 1985).

The BIA reasonably found that petitioner did not provide such evidence. While petitioner showed that his actions had been monitored and that he had been questioned by the authorities, other evidence suggested that he was not a target for persecution: He was never arrested or imprisoned; only one of his political speeches was ever disturbed; and he was allowed to leave the country. According to petitioner's own testimony, the government generally aimed its repressive tactics at communists or radicals, not at members of petitioner's political organization. Excerpts of Record at 4-5. Although petitioner's closest political associate was murdered, petitioner was unable to link this murder to the types of persecution listed in section 243(h).

Nor does the evidence establish that petitioner has become eligible for asylum. In order to be granted asylum, an alien must first meet the definition of refugee by making a prima facie case that he has a "well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion...." Sec. 101(a), 8 U.S.C. § 1101(a) (42) (A). To establish his refugee status, the alien can rely on documentary evidence or on his own testimony if it is credible, persuasive and refers to specific facts raising the inference that he has a good reason to fear persecution. Cardoza-Fonseca v. INS, 767 F.2d 1448, 1453 (9th Cir. 1985), aff'd 107 S. Ct. 1207 (1987).

We review an alien's claim of a well-founded fear of persecution by a generous standard: "Even a ten percent chance that [persecution] will take place can be enough to establish a well-founded fear." Blanco-Comarribas v. INS, 830 F.2d 1039, 1042 (9th Cir. 1987). However, because petitioner has failed to support his claim with any objective facts, it fails even under this standard. As we held in a similar case, the government's imposition of "relatively minimal punishment" on petitioner and its willingness to grant him a passport are facts that cut against his claim of a well-founded fear of persecution. Espinoza-Martinez, 754 F.2d at 1540.

Petitioner asks for a new trial to resolve whether he would be persecuted by pro-Marcos groups upon his return to the Philippines. If an alien has proven that he was persecuted by government agents, but that regime dissolves prior to appeal, it may be appropriate to remand the case to let the alien prove he would still be persecuted upon his return. Desir v. Ilchert, 840 F.2d 723 (9th Cir. 1988). In this case, petitioner has not established past persecution by either the Marcos regime or by non-governmental pro-Marcos forces, so there is no basis for rehearing.

AFFIRMED.