Unpublished Disposition, 895 F.2d 1416 (9th Cir. 1988)

Annotate this Case
U.S. Court of Appeals for the Ninth Circuit - 895 F.2d 1416 (9th Cir. 1988)


No. 88-7464.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 8, 1990.* Decided Feb. 22, 1990.

Before CHOY, DAVID R. THOMPSON and TROTT, Circuit Judges.


Miguel de Jesus Fernandez-Henriquez ("petitioner") petitions for review of a decision of the Board of Immigration Appeals ("BIA") affirming the denial of political asylum and withholding of deportation. Because the BIA's decision is supported by substantial evidence, we deny the petition for review.


Petitioner is a native and citizen of El Salvador in his mid-twenties. Petitioner has a sixth grade education and worked as a laborer prior to the time he fled El Salvador. Although both the guerrillas and the Salvadoran army engaged in efforts to recruit petitioner, he failed to join either side of the conflict in that country.

On at least six occasions, soldiers of the Salvadoran army came to petitioner's home seeking to recruit him. Petitioner resisted recruitment, because he claimed not to agree with their tactics of harming innocent citizens. Additionally, petitioner alleged that the army tortured and killed his twenty-six-year-old cousin. Although petitioner did not personally see the deceased, he claims to have heard about the death from others. Petitioner, however, could not say for certain why his cousin had been killed. The army's recruitment efforts ceased after petitioner's father joined the Civil Patrol. The Civil Patrol is an unarmed and ununiformed group of local citizens.

Petitioner also resisted joining the guerrillas. Petitioner's first and only direct contact with the guerrillas occurred in April 1983. Six guerrillas carrying machine guns entered petitioner's home at night, stating that they were looking for arms. They forced the family and guests to lie face down on the floor while they searched the premises. They told petitioner that they would take him with them if he did not give them arms. The guerrillas took two machetes and left. Subsequently, upon the advice of his father's superiors at the Civil Patrol, petitioner began sleeping intermittently in the sugar cane fields to avoid contact with the guerrillas. Petitioner testified that on numerous occasions the guerrillas came to his home looking for him and asking his mother to tell them where he was. Shortly thereafter, petitioner left El Salvador and entered this country without inspection near Lukeville, Arizona in July 1984.

Petitioner was apprehended and on August 2, 1984, the Immigration and Naturalization Service ("INS") served petitioner with an order to show cause why he should not be deported. In a hearing before an immigration judge ("IJ"), petitioner's counsel conceded deportability. The IJ then adjourned the hearing so petitioner could file an application for asylum. Petitioner was released on bond in September 1986. The IJ found petitioner deportable and denied his application for asylum. The BIA agreed and dismissed petitioner's appeal. Petitioner filed a timely petition for review on November 21, 1988. We have jurisdiction pursuant to 8 U.S.C. § 1105(a).


[Petitioner] applied for two forms of relief: withholding of deportation under section 243(h) of the Immigration and Nationality Act, 8 U.S.C. § 1253(h), and asylum under section 208(a) of the Refugee Act of 1980, 8 U.S.C. § 1158(a). To qualify for withholding of deportation, [petitioner] must show a clear probability that if returned to his country his life or freedom would be threatened "on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 USC Sec. 1253(h). Applicants for withholding of deportation must show: (1) a likelihood of persecution, i.e. a threat to life or freedom; (2) persecution by the government or by a group which the government is unable to control; (3) persecution resulting from the petitioner's political beliefs; and (4) the petitioner is not a danger or a security risk to the United States. Only the first and third elements are at issue in this case. The Attorney General must withhold deportation upon proof that the applicant meets the statutory requirements.

An alien may be granted asylum if he is unwilling to return to his home 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. §§ 158(a); 1101(a) (42) (A).

We review the factual findings underlying the BIA's denial of withholding of deportation and asylum under the substantial evidence standard. The substantial evidence test is essentially a case-by-case analysis requiring review of the whole record. Substantial evidence is more than a mere scintilla and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. The reviewing court must consider evidence contravening the agency's determination.

Turcios v. INS, 821 F.2d 1396, 1398-99 (9th Cir. 1987) (citations omitted).


Petitioner argues in his brief that his failure to join either the Salvadoran army or the guerrillas constitutes a sufficient showing of a neutral "political opinion," as that term is used in 8 U.S.C. §§ 1158(a), 1253(h). The IJ found that petitioner had failed to affirmatively manifest a political opinion of neutrality. See, e.g., Lopez v. INS, 775 F.2d 1015, 1016-17 (9th Cir. 1985) (holding that petitioner had failed to "make an affirmative choice of political neutrality," but rather had merely made a showing of "apathy"). The BIA determined, however, that even assuming petitioner had affirmatively manifested his neutral political opinion, he had still failed to demonstrate a well-founded fear of persecution. We agree.

To establish eligibility for asylum, petitioner must show that he has a well-founded fear that he will be persecuted. It is sufficient if petitioner establishes that his persecution is a reasonable possibility. INS v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987) (noting hypothetically that a one-in-ten chance of persecution could support a claim for asylum).

The well-founded fear standard includes both an objective and subjective component.... The subjective component requires that the fear be genuine, while 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 petitioner faces persecution."

Rodriguez-Rivera v. U.S. Dept. of Immigration & Naturalization, 848 F.2d 998, 1001-02 (9th Cir. 1988) (quoting Rebollo-Jovel v. INS, 794 F.2d 441, 443 (9th Cir. 1986)). If a petitioner fails to show a well-founded fear of persecution under the more lenient standard for establishing asylum, the petitioner fails, a fortiori, to establish a claim for withholding of deportation. Larimi v. INS, 782 F.2d 1494, 1497 (9th Cir. 1986). To establish a claim for withholding of deportation, a petitioner must show that it is more likely than not that he will be persecuted if returned to the country he left. INS v. Stevic, 467 U.S. 407, 424 (1984).

The INS does not dispute that petitioner subjectively fears persecution. Rather, it contends that he has failed to produce the type of specific, direct evidence of persecution required to show a well-founded fear. Petitioner argues that the visits by the guerrillas, as relayed by his mother, demonstrate the specific, direct threat of persecution required to satisfy the objective component of the well-founded fear standard.1 

However, petitioner has not come forward with any specific threat made to his life or liberty for his failure to join the guerrillas, or for what we assume to have been his expression of a political opinion of neutrality. Our cases have held that an applicant for asylum must show some specific threat to him individually. Compare Arteaga v. INS, 836 F.2d 1227, 1231-32 (9th Cir. 1988) (reversing BIA's denial of asylum for failure to apply proper standard and noting that under proper standard the alien could show well-founded fear of persecution because of threat of kidnapping by guerrillas if alien failed to voluntarily join them) (dictum); Argueta v. INS, 759 F.2d 1395, 1395-98 (9th Cir. 1985) (reversing BIA's denial of asylum and noting that the alien had been threatened by a death squad for being a guerrilla); Bolanos-Hernandez v. INS, 767 F.2d 1277, 1280-86 (9th Cir. 1984) (reversing BIA's denial of asylum and noting that the alien had been threatened with death by guerrillas if he failed to join their organization); with Vides-Vides v. INS, 783 F.2d 1463, 1468-69 (9th Cir. 1986) (upholding BIA's denial of asylum and noting that the alien had "not been individually threatened because of his political opinions"); Lopez v. INS, 775 F.2d 1015, 1016-17 (9th Cir. 1985) (upholding BIA's denial of asylum and noting that the alien had failed to allege any specific threat against his life or liberty); Espinoza-Martinez v. INS, 754 F.2d 1536, 1540 (9th Cir. 1985) (upholding BIA's denial of asylum and noting that the alien had not alleged any "direct threat" related to his political opinions).

The petition for review is DENIED.


The panel unanimously finds this case suitable for disposition without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 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 9th Cir.R. 36-3


In his opening brief, petitioner fails to discuss his initial confrontation with the guerrillas in 1983. In any event, this confrontation would not support an objective, well-founded fear of persecution for political opinion. Specific threats or attacks in the furtherance of procuring arms does not satisfy persecution for "political" reasons. See Chavez v. INS, 723 F.2d 1431, 1433 (9th Cir. 1984)