Unpublished Disposition, 855 F.2d 862 (9th Cir. 1985)

No. 87-7155.

United States Court of Appeals, Ninth Circuit.

Before BRUNETTI and DAVID R. THOMPSON, Circuit Judges and C.A. MUECKE,^***  Senior District Judge.

MEMORANDUM^** 

Alejandro Saravia-Jimenez petitions for review of the Board of Immigration Appeals's (BIA) order denying his application for asylum and withholding of deportation. Saravia-Jimenez contends that the BIA's denial of asylum is not supported by substantial evidence. He also contends that he was denied effective assistance of counsel before the Immigration Judge (IJ) and the BIA because his counsel failed to introduce available testimonial and documentary evidence establishing the existence of a reasonable possibility of persecution.

Saravia-Jimenez is a twenty-three-year-old citizen and native of El Salvador. He entered the United States without inspection in April 1978. He was deported to El Salvador on May 10, 1982. He left El Salvador and entered the United States for the second time in January 1983. Saravia-Jimenez was convicted on October 17, 1984, of maintaining a place for marijuana in violation of Cal. Health & Safety Code Sec. 11366 (West 1975). On the basis of this conviction he was charged with deportability under 8 U.S.C. § 1251(a) (a). An order to show cause issued on November 21, 1984.

Saravia-Jimenez, through his counsel, conceded deportability and requested asylum and withholding of deportation. An IJ found Saravia-Jimenez deportable and denied his applications for asylum and withholding of deportation on February 12, 1985. The BIA affirmed the IJ's decision. Saravia-Jimenez filed a timely petition for review.

We affirm the BIA's decision affirming the IJ's decision.

To be eligible for asylum an alien must establish that he is a refugee. To acquire refugee status he must demonstrate to the IJ and the BIA a well-founded fear of persecution in a particular country based on race, religion, nationality, membership in a particular social group or political opinion. 8 U.S.C. § 1101(a) (42).

In order to demonstrate a well-founded fear of persecution, the alien's evidence must meet a two-component test:

The subjective component requires a showing that the alien's fear is genuine. The objective component requires a showing, by credible, direct and specific evidence in the record, of facts that would support a reasonable fear that the [alien] faces persecution.

Diaz-Escobar v. INS, 782 F.2d 1488, 1491 (9th Cir. 1986).

The "well-founded fear" standard is more generous than the "clear probability" standard required for withholding of deportation. See, e.g., INS v. Stevic, 467 U.S. 407, 425 (1984); Artiga-Turcios v. INS, 829 F.2d 720, 724 (9th Cir. 1987); Cardoza-Fonseca v. INS, 767 F.2d 1448, 1453 (9th Cir. 1985), aff'd 107 S. Ct. 1207 (1987).

To make a prima facie case Saravia-Jimenez must present some specific facts giving rise to an inference of particularized persecution on the grounds of race, religion, nationality, membership in a particular social group, or political opinion. Cardoza-Fonseca v. INS, 767 F.2d at 1453; Rebollo-Jovel v. INS, 794 F.2d 441, 448 (9th Cir. 1986) (petitioner must show that potential persecution would be directed at him as an individual).

Petitioner based his claim for asylum on a possibility of persecution based on his political beliefs. Petitioner must show that he will, himself, be singled out for persecution based on those beliefs should he return to El Salvador. See Zepeda-Melendez v. INS, 741 F.2d 285, 290 (9th Cir. 1984); Chavez v. INS, 723 F.2d 1431, 1434 (9th Cir. 1984); Shoaee v. INS, 704 F.2d 1079, 1084 (9th Cir. 1983).

Our review of the record indicates that petitioner has failed to meet that burden and that the BIA did not err in concluding that he did not meet the statutory definition of "refugee" and that he was therefore properly denied the discretionary relief of asylum.

Petitioner was a student at the leftist catholic college Faith and Happiness. While at college, petitioner was a member of an organization called "Andres 21st of June." This group opposed the El Salvadoran government's economic and social policies, supported worker solidarity, condemned government human rights violations and demanded a negotiated solution to the ongoing civil war. Among the organization's goals was the establishment of a retirement age for teachers, a minimum wage for farm workers, and better treatment for students and teachers by the government. The organization participated in two demonstrations in San Salvador between September, 1977 and January 1978. Petitioner participated in these two demonstrations when he was approximately 14-years old. There are disputed facts as to whether he "participated" in another demonstration in April 1978. Following the April 1978 demonstration government forces began conducting a sweep of homes of students who had been injured in the demonstration. Petitioner was not injured in the demonstration and his home was not searched. Government forces also conducted a search of the school. Student records were stored at the school. Petitioner alleges a fear that his identity and political affiliation might have become or might become known to the government.

Though petitioner may have feared that his identity and political affiliation could become known, this does not equate to the well-founded fear of persecution that petitioner is required to show to be eligible for asylum. Petitioner has not shown that he was the object of even one act of persecution, and fear that his political affiliation would become known as a result of the school search does not help petitioner meet his burden. There is no evidence in the record that the school records were actually searched or seized, nor is there any proof that ultimately petitioner's identity and political affiliation was discovered. There is no evidence in the record that he participated in any way in any political activities after he was deported to El Salvador in May of 1982. Petitioner's minimal participation in demonstrations over 10 years ago and the fact that he lived safely in El Salvador from May 1982 until January 1983 vitiate his claim that he will be subjected to persecution for his political beliefs.

Petitioner was not a speaker or a leader, and did not organize the students or the demonstrations in which they took part. Petitioner distributed some leaflets, participated in parties at school to raise money and was part of the large demonstration crowd from several schools. Petitioner's membership in the student organization does not constitute such active participation in anti-government activities that it would be likely that Saravia-Jimenez's views, if he had any, would have come to the attention of the El Salvadoran government.

The El Salvadoran government twice issued passports to petitioner which is an action inconsistent with a government whose intent is to persecute. Petitioner was stopped by the government numerous times after his return to El Salvador, however, neither petitioner nor any member of his family has ever been arrested, detained or harmed in any manner that would indicate persecution.

We affirm the BIA's conclusion that petitioner has failed to establish a well-founded fear of persecution.

Petitioner also contends that he was denied effective assistance of counsel because his counsel allegedly failed to thoroughly investigate and educate themselves about all the essential facts concerning the group Andes 21st of June and the possibility of government knowledge of his identity and political affiliation. Petitioner contends that assistance of counsel was flawed because counsel below failed to introduce in the record an Amnesty International report on Andes 21st of June and alleged "testimonial evidence" contained in a memorandum from petitioner to his appellate counsel, which materials were attached to his opening and reply briefs. None of this material was presented to the IJ or BIA by any of petitioner's counsel.

Ineffective assistance of counsel in a deportation proceeding is a denial of due process "if the proceeding was so fundamentally unfair that the alien was prevented from reasonably presenting his case." Ramirez-Durango v. INS, 794 F.2d 491 (9th Cir. 1986) (quoting Lopez v. INS, 775 F.2d 1015, 1017 (9th Cir. 1985)). The alien must show "not merely ineffective assistance of counsel, but assistance which is so ineffective as to have impinged upon the fundamental fairness of the hearing in violation of the fifth amendment due process clause." Id. (quoting Paul v. INS, 521 F.2d 194, 198 (5th Cir. 1975)).

A claim of ineffective assistance of counsel must allege facts to allow this court to infer that competent counsel would have acted otherwise and the existence of material information not disclosed because of counsel's incompetence. Mohsseni Bahbahani v. INS, 796 F.2d 249, 251 (9th Cir. 1986).

We find that the purported omission by petitioner's counsel below did not rise to the level of rendering the deportation proceeding so fundamentally unfair that petitioner was prevented from reasonably presenting his case.

The memorandum of "testimonial evidence" prepared by a paralegal on behalf of appellate counsel contains additional details about petitioner's involvement in the demonstrations and alleges that after the demonstrations "strangers-assumed to be the military" came looking for petitioner and that after his return to El Salvador in 1982 he was beaten by members of the military. These statements are self-serving allegations not made under oath and not subject to cross-examination and therefore unreliable. In fact when questioned extensively by the IJ about the period of almost six months he spent in El Salvador between May 1982 and January 1983 petitioner did not volunteer that he had been beaten.

Procedurally appellate counsel should have moved to re-open petitioner's case before the BIA based on this documentary evidence and purported "testimonial evidence". Appellate counsel did not do so.

The failure of counsel below to submit the Amnesty International Report of Andes 21st of June and other materials does not equal ineffective assistance of counsel. Even if these unsubstantiated and unreliable materials are considered, petitioner does not show a a prima facie well-founded fear of persecution for the reasons stated above. Furthermore, Saravia-Jimenez cannot demonstrate actual prejudice as a result of the omission complained of. Nicholas v. INS, 590 F.2d 802, 809 (9th Cir. 1979).

Accordingly, we affirm the BIA's decision affirming the IJ's decision and deny petitioner's request to stay the mandate to move to re-open the case before the BIA.

AFFIRMED.