Unpublished Disposition, 867 F.2d 612 (9th Cir. 1985)

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U.S. Court of Appeals for the Ninth Circuit - 867 F.2d 612 (9th Cir. 1985)

No. 87-7498.

United States Court of Appeals, Ninth Circuit.

Before FLETCHER and BEEZER, Circuit Judges, and SAMUEL P. KING,*  District Judge.


Manuel Serrano Angeles ("Angeles") challenges the decision of the Board of Immigration Appeals ("BIA") affirming the immigration judge's denial of his application for asylum and the withholding of deportation. We deny the petition for review.

* Mr. Angeles is a 70 year old native and citizen of the Philippines. He entered the United States on a nonimmigrant visitor's visa on December 8, 1983. On February 6, 1985, he filed an application for political asylum and the withholding of deportation.

At his deportation hearing, Angeles testified that he feared persecution in the Philippines because of his association with the Lopez family, long-time foes of the Marcos regime. He explained that in the early 1970s he safeguarded important papers belonging to the Lopez family. According to Angeles, he also spoke out against the Marcos regime at neighborhood meetings and participated along with hundreds of others in demonstrations against that regime. Angeles testified that he fears that he has created enemies as a result of these activities. He also testified that his neighbors in the Philippines advised him to "lie low" because they had seen people observing his house.

Angeles contends that the immigration judge and the BIA applied the wrong standard of proof in evaluating his application for asylum. He also contends that the BIA's finding that he lacks a "well-founded fear of persecution" is unsupported by the evidence.


In order to qualify for the withholding of deportation under Section 243(h) of the Refugee Act, an alien must show that he faces a clear probability of persecution in his native country. 8 U.S.C. § 1253(h) (1982). By contrast, in order to qualify for asylum, an alien must show only that he has a well-founded fear of persecution. The well-founded fear of persecution standard is in fact more generous to aliens than the clear-probability test. Arteaga v. INS, 836 F.2d 1227, 1229 (9th Cir. 1988). Angeles argues that the immigration judge and the BIA failed to recognize that the burden of proof for asylum is lower than that for the withholding of deportation. Questions of law, such as whether the BIA applied the appropriate legal standard, are reviewed de novo. Id. at 1228.

It is unclear from the immigration judge's decision whether he fully appreciated the differences between the well-founded fear of persecution and the clear probability of persecution standards. However, the BIA in its opinion explicitly recognized the differences between the two standards. Our task is to review the decision of the BIA, rather than that of the immigration judge. See Argueta v. INS, 759 F.2d 1395, 1398 n. 4 (9th Cir. 1985); Phinpathya v. INS, 673 F.2d 1013, 1019 (9th Cir. 1981), rev'd on other grounds, 464 U.S. 183 (1984). Since the BIA applied the proper standards of proof for asylum and the withholding of deportation, we reject Angeles's first argument.


Angeles' second argument is that the BIA's finding that he lacks a well-founded fear of persecution was unsupported by the evidence. We must uphold the BIA's factual findings if they were supported by substantial evidence. See Florez-De Solis v. INS, 796 F.2d 330, 333 (9th Cir. 1986).

As the Supreme Court observed, "the reference to 'fear' in [the well-founded fear of persecution standard] obviously makes the eligibility determination turn to some extent on the subjective mental state of the alien." INS v. Cardoza-Fonseca, 480 U.S. 421, 430-31 (1987). However, the alien must establish an objective basis for his subjective fear. Cardoza-Fonseca v. INS, 767 F.2d 1448, 1452 (9th Cir. 1985), aff'd 480 U.S. 421 (1987). The BIA did not err in finding that Angeles failed to do so.

Angeles never presented any evidence that he or his family has been threatened, detained, interrogated, imprisoned, or otherwise harmed while in the Philippines. Although he testified that neighbors reported that unknown persons were watching his home, he never indicated that he or his family verified these reports. Further, Angeles' contention that he may be targeted as a result of his activities for the Lopez family is highly speculative. Angeles turned the Lopez's papers over to others in 1974 or 1975, and there is no evidence that the Marcos government was ever aware that he possessed them. Finally, Angeles presented no evidence suggesting that his participation in rallies and demonstrations against the Marcos government may make him a target for persecution. Angeles conceded that the rallies at which he spoke were merely small neighborhood gatherings of 30 to 50 people, which were never disrupted by the police or Marcos supporters. In sum, the BIA's finding that Angeles lacks a well-founded fear of persecution was clearly supported by substantial evidence.

The petition for review is denied. The BIA's grant of 30 days for voluntary departure is reinstated. The 30 day period will begin to run on the date of the issuance of our mandate in this case. See Contreras-Aragon v. INS, 852 F.2d 1088, 1097 (9th Cir. 1988) (en banc) (when the court of appeals affirms the BIA's deportation order, the period for voluntary departure granted by the BIA does not begin to run until the issuance of the appellate mandate).


Honorable Samuel P. King, Senior United States District Judge for the District of Hawaii, sitting by designation


This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Circuit Rule 36-3