Unpublished Disposition, 879 F.2d 865 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 879 F.2d 865 (9th Cir. 1989)


No. 88-7266.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 5, 1989.Decided July 6, 1989.

Before TANG, CANBY and O'SCANNLAIN, Circuit Judges.


Cesar Vicente Navas-Rivera petitions for review of a final order of the Board of Immigration Appeals (BIA) denying his request for asylum and withholding of deportation. We have jurisdiction pursuant to 8 U.S.C. Section 1105a. We deny the petition for review.

Contrary to petitioner's assertions, the factual determinations set forth in the BIA's thorough and well-written majority and concurring opinions are supported by substantial evidence, Blanco-Lopez v. INS, 858 F.2d 531, 533 (9th Cir. 1988) (citations omitted) (BIA's factual findings reviewed under substantial evidence standard), and the proper legal standards were applied. Rodriguez-Rivera v. U.S. Dept. of Immigration & Naturalization, 848 F.2d 998, 1001 (9th Cir. 1988) (per curiam) (whether the BIA applied the appropriate legal standards is reviewed de novo) . As fully explicated by the BIA, petitioner did not show the "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), necessary to establish eligibility for a grant of asylum.1  Although he arguably established the subjective component of fear, petitioner did not show that "this fear has enough of a basis that it can be considered well-founded." Vilorio-Lopez v. INS, 852 F.2d 1137, 1140 (9th Cir. 1988). In other words, Navas-Rivera failed to "present 'specific facts' " through objective evidence to prove either past persecution or 'good reason' to fear future persecution.' " Id. (citation omitted).2 

Although Navas-Rivera did show that his father has been beaten and imprisoned upon conviction for a crime and that his family suffered financial hardships, surveillance and emotional distress following his father's imprisonment,3  we agree with the BIA's conclusion that this testimony does not supply an objective basis for a well-founded fear that Navas-Rivera will be persecuted on account of his race, religion, nationality, membership in a particular social group, or political opinion. Navas-Rivera lived three years in Guatemala after his father's conviction without arrest or detention, and worked for the government for one of those years (although he testified that he was fired because of his relationship with his father). His brother and grandmother were still living there at the time of his hearing before the Immigration Judge. The BIA could properly conclude that neither the government nor others that the government could not control had an interest in persecuting Navas-Rivera because of imputed political views based on his relationship to his father.

Similarly, substantial evidence supports the conclusion that Navas-Rivera does not have a well-founded fear of persecution on account of his religious convictions or imputed political opinions because of his refusal to bear arms. As the BIA exhaustively discussed, petitioner did not show that he would be subject to military induction and forced to bear arms if he returned to Guatemala. The government's efforts to recruit petitioner into the military, without more, are clearly not persecution. Rodriguez-Rivera, 848 F.2d at 1005 (citations omitted). The government's potential prosecution of Navas-Rivera for failure to appear at a 1983 military interview is also not persecution. Cf. Kaveh-Haghigy v. INS, 783 F.2d 1321, 1323 (9th Cir. 1986) ("Even petitioners admit that being drafted to serve in the Iranian army does not amount to persecution"); Espinoza-Martinez v. INS, 754 F.2d 1536, 1540 (9th Cir. 1985) (distinguishing charges arising from persecution from "a routine, nonpolitical crime of desertion"). On this record, we need not decide whether or when punishment for conscientious objection to military service may constitute persecution. Cf. Arteaga v. INS, 836 F.2d 1227, 1238 (9th Cir. 1988). The BIA's conclusion that petitioner "failed to present any evidence to prove that the military will force him to carry arms against his religious beliefs," BIA Decision at 4, is supported by substantial evidence. Navas-Rivera testified that, while previously serving in the Guatemalan military, he was permitted to act as a medical cadet and was not required to bear arms.

The only contrary evidence presented to the BIA was Navas-Rivera's contention that "friends" told him that the military no longer honors such special arrangements. However, neither the newspaper clippings entered as exhibits by petitioner nor the affidavit of the Seventh Day Adventist minister mention whether the government's policy of permitting alternative military service as a medical cadet has been revoked. Consequently, under the standard of review we must employ, it was permissible for the BIA to discount this evidence.

Under the deferential substantial evidence standard, we may not reverse the BIA simply because we disagree with its evaluation of the facts, but only if we conclude that the BIA's evaluation is not supported by substantial evidence.

Diaz-Escobar v. INS, 782 F.2d 1488, 1493 (9th Cir. 1986).

Because we believe that the BIA's decision in this and all other respects is "substantially reasonable," Rodriguez-Rivera, 848 F.2d at 1001, (citation omitted), we deny Navas-Rivera's petition for review.


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


Because we hold that the BIA's decision that petitioner had not demonstrated statutory eligibility for asylum was based on substantial evidence, we do not reach the issue of the BIA's alleged abuse of discretion in deciding to deny asylum. See Rodriguez-Rivera, 848 F.2d at 1001. Similarly, we need not separately discuss whether petitioner met the more stringent "clear probability of persecution" standard necessary to establish eligibility for mandatory withholding of deportation. Diaz-Escobar v. INS, 782 F.2d 1488, 1492 (9th Cir. 1986) (failure to meet eligibility standard for asylum a fortiori demonstrates that petitioner is unable to establish criteria required for withholding of deportation). See 8 U.S.C. § 1253(h) (1)


On appeal, petitioner claims that the BIA erred by requiring him to "establish with certainty that he was or may be subject to personal threats or violence." (emphasis in original). However, the BIA stated that petitioner's burden was to come forward only with "a preponderance of credible, probative evidence that his fear of persecution by governmental authorities is well-founded." BIA Decision at 1. Petitioner has not challenged, and we do not address, whether a "preponderance of credible, probative evidence" is required by the case law and 8 C.F.R. Sec. 208.5


"Where, as here, the [BIA] and the immigration judge make no findings as to the credibility of the petitioner's hearing testimony, the reviewing court must presume that the testimony was credible." Arteaga v. INS, 836 F.2d 1227, 1231 n. 7 (9th Cir. 1988) (citation omitted)