Unpublished Disposition, 895 F.2d 1418 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 895 F.2d 1418 (9th Cir. 1987)


No. 89-70151.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 2, 1990.* Decided Feb. 13, 1990.

Before NELSON, BRUNETTI and KOZINSKI, Circuit Judges.


Petitioner, a citizen of El Salvador, seeks political asylum in this country or, in the alternative, voluntary departure. The immigration judge denied her request for asylum, finding that she did not demonstrate a well founded fear of persecution. He also concluded that voluntary departure was not appropriate. The Board of Immigration Appeals affirmed on both issues. The instant appeal followed in which petitioner has added claims for ineffective assistance of counsel and for failure on the part of the immigration judge to exercise a mandatory duty with respect to petitioner. We affirm.


Petitioner Gloria America Ortiz-Ceren entered this country illegally from her native El Salvador on March 26, 1986. She was subsequently apprehended and a deportation hearing was held on June 17, 1986 in which she conceded deportability. The immigration judge ("IJ") granted her leave to submit an application for asylum or, in the alternative, for voluntary departure which she did approximately one month later. The hearing reconvened on March 23, 1987 and the IJ denied both requests. Ortiz-Ceren appealed this decision to the Board of Immigration Appeals ("BIA") which affirmed the decision below. The instant appeal followed.


I. Application for Asylum/Withholding of Deportation

Under Sec. 208(a) of the Immigration and Nationality Act ("Act"), 8 U.S.C. § 1158(a), the Attorney General has discretion to grant an alien political asylum if the former determines that the alien is a refugee within the meaning of the Act. To establish refugee status, an alien must demonstrate 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. § 1101(a) (42) (A). This burden is twofold, containing both a subjective and an objective component. That is, the alien must demonstrate a subjective fear of persecution based on objective evidence proving "either past persecution or good reason to fear future persecution." Vilorio-Lopez v. INS, 852 F.2d 1137, 1140 (9th Cir. 1988). Once this burden is met, the Attorney General exercises his discretion in deciding whether to grant asylum. Where, as here, the application for asylum is denied on the ground that the alien has failed to prove a well founded fear of persecution, the court of appeals must affirm unless the decision is not supported by substantial evidence.1  Sanchez-Trujillo v. INS, 801 F.2d 1571, 1578 (9th Cir. 1986).

Applications for asylum filed by aliens who, like Ortiz, are subject to deportation are also treated as requests for withholding of deportation. See 8 C.F.R. Sec. 208.3(b). This remedy is governed by 8 U.S.C. § 1253(h) (1) and provides mandatory rather than discretionary benefits once the petitioner meets the statutory eligibility standards.2  The alien carries, however, a more onerous burden of proof. Under the applicable "clear probability of persecution" standard, she must show that it is "more likely than not" that she will be persecuted if deported to her native country. Blanco-Lopez v. INS, 858 F.2d 531, 533 (9th Cir. 1988) (citing INS v. Stevic, 467 U.S. 407, 424 (1984)). By contrast, under the "well founded fear of persecution" standard, it is sufficient that the alien establish that persecution is a "reasonable possibility." Vides-Vides v. INS, 783 F.2d 1463, 1469 (9th Cir. 1986). A denial of withholding of deportation, like a finding that an alien has not shown a well founded fear of persecution, is reviewed under the deferential substantial evidence standard. Sanchez-Trujillo, 801 F.2d at 578-79.

In her application for asylum, Ortiz-Ceren attached a one-page letter detailing her need to remain in the United States. See ER at 49. She explained that her common-law husband, Jose A. Mendez, was a member of the Baker's Union in El Salvador and participated in strikes, though she otherwise "did not know very much" about his involvement in the union. She also reported that one day in 1982 they were stopped by a guard who asked Mendez for identification. After checking Mendez's name against a list he was carrying, the guard "warned him to leave the country soon, or be killed." The next year, the couple began receiving anonymous threats at their home which led them to move to another town. They lived there peacefully for three years at which time they left separately for this country. Petitioner has not since heard from her husband and fears that he is dead. She is afraid to return home "since people who are deported to El Salvador are very often found dead soon afterward."

As aforementioned, to obtain refugee status, Ortiz-Ceren must demonstrate through objective evidence that a reasonable person in her position would fear persecution. She has not done so. First, there is the matter of the anonymity of the threats against her. In Diaz-Escobar v. INS, the court held that an anonymous threatening letter left on the windshield of a car was insufficient to establish a reasonable expectation of persecution as " [i]t could have come from a variety of sources: relatives ..., friends who were attempting to give him a warning, pranksters, et cetera." 782 F.2d 1488, 1493 (9th Cir. 1986). The same could be said of the phone calls made to Ortiz-Ceren and her husband.

Second, and more importantly, is the fact that petitioner and her husband lived peacefully in another Salvadoran town for three years prior to their departure. It is difficult, to say the least, to reconcile this occurrence with Ortiz-Ceren's claimed fear of persecution. The IJ, moreover, specifically rejected her contention that the delay was caused by the need to gather the appropriate funds for the journey. "I believe," he concluded, "that they simply chose to leave when they did for unstated reasons."

Given that Ortiz-Ceren lived in this town without incident from 1983 to 1986, we do not see why she could not return there now. She does not belong to any political organization which would place her life in jeopardy. Any risk to her safety would appear, moreover, to be eliminated since she would not be accompanied by her husband and it was his union affiliations alone which placed her in danger.

For the above reasons, we believe there is substantial evidence to support the administrative determination that petitioner is ineligible for political asylum in the United States. As the BIA noted, inasmuch as Ortiz-Ceren has not carried her burden with respect to the asylum claim, "it follows that she has also failed to satisfy the clear probability standard of eligibility required for withholding of deportation."3 

Petitioner also contends that her request for voluntary departure was improperly denied. To prevail on such a claim, an alien must establish that she is statutorily eligible for and deserves a grant of that privilege. See Delgado-Chavez v. INS, 765 F.2d 868, 869 (9th Cir. 1985). To this end, Ortiz-Ceren must demonstrate that she is of good moral character and is able to pay for the departure. Villanueva-Franco v. INS, 802 F.2d 327, 329 (9th Cir. 1986); 8 U.S.C. § 1254(e).

The IJ denied the request holding that petitioner had failed to demonstrate that she was entitled to such relief either statutorily or as a matter of equity. The BIA affirmed, commenting that it was not convinced that Ortiz-Ceren "merit [ed] a favorable exercise of discretion." On review, this Court examines "only whether discretion was actually exercised and whether the manner in which it was exercised was arbitrary or capricious. Cuevas-Ortega v. INS, 588 F.2d 1274, 1278 (9th Cir. 1979).

Petitioner argues that the BIA failed to consider evidence in her application for asylum which indicates that she is of sound moral character. This argument is, however, for naught as morality is only part of the picture. The fact is that Ortiz-Ceren did not produce evidence below of her ability to pay, as is required under Villanueva-Franco.

Petitioner also suggests that her negative answer to question # 36 on the asylum application is sufficient in and of itself to satisfy the "moral character" requirement of Sec. 1254(e).4  There is no authority whatsoever for this proposition and it must likewise be rejected.

Both parties agree that to prevail on an ineffective assistance of counsel claim, petitioner must show not only that her attorneys' performance was deficient, but that their performance prejudiced her defense. Mohsseni Behbahani v. INS, 796 F.2d 249, 251 (9th Cir. 1986). Where, as here, the prejudice argument revolves around counsel's alleged failure to introduce evidence, the omitted evidence must be described or else it is presumed that no such documentation exists. Id. Ortiz-Ceren claims, to this end, that had her attorneys called upon her to testify, she would have demonstrated her ability to pay for voluntary departure and elaborated upon her political opposition to the current government in El Salvador as well as her husband's political activities.

In light of the foregoing analysis, it is clear that none of the evidence petitioner claims she would have presented would have entitled her to political asylum. She does not indicate that she could inform the court of the identity of the individuals who issued threats against her and, more significantly, no new evidence would be offered to controvert the safety of her existence once she and husband moved to a different town. Further detail as to Mendez's political activities in the first location would prove unavailing.

Ortiz-Ceren's claim that she could prove eligibility for voluntary departure is more compelling. Unfortunately, her briefs do not specify what evidence she intended to offer of her moral character and ability to pay. However, even if her evidentiary showing were deemed adequate from the standpoint of 8 U.S.C. § 1254(e), it would not matter since the BIA's denial of voluntary departure was based not on statutory ineligibility but on the Board's determination that Ortiz-Ceren did not merit "a favorable exercise of discretion." Thus, since the Board's discretionary denial did not appear to be predicated on statutory ineligibility, we cannot conclude that counsel's failure to allow petitioner to testify as to her eligibility prejudiced her defense.

Finally, petitioner claims that the IJ violated 8 U.S.C. § 1252(b) (3) by allowing her to waive the right to present evidence without questioning her to ensure that she understood the rights she was giving up. This court may not consider the issue since it was not raised below. See Tejeda-Mata v. INS, 626 F.2d 721, 726 (9th Cir. 1980), cert. denied, 456 U.S. 994 (1982) (court could not consider claim that INS did not comply with the federal regulations as the issue was not raised before the IJ or BIA).


For the foregoing reasons, the judgment below is AFFIRMED.


The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 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 Ninth Circuit Rule 36-3


If the alien establishes a well founded fear of persecution but is nonetheless denied asylum, abuse of discretion standard is the appropriate standard of review. Sanchez-Trujillo, 801 F.2d at 1578. This standard does not apply, however, in the instant case since the Attorney General's treatment of petitioner's claim did not require him to exercise his discretion


It states that " [t]the Attorney General shall not deport or return any alien ... to a country if [he] determines that such alien's life or freedom would be threatened in such a country on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1253(h)


Petitioner argues that the BIA applied the wrong legal standard to her asylum and withholding of deportation claims in that its decision erroneously suggests that she must prove that she will face persecution if returned to her native country. The sentence to which she refers, however, is taken out of context. In the preceding paragraph, the BIA states the appropriate standard, i.e. would a reasonable person in the position of the applicant fear persecution. The subsequent sentence merely notes that "the record does not support respondent's contention that she will face persecution." (emphasis added)


The question reads as follows: "Have you ever been detained, interrogated, convicted and sentenced [or] imprisoned in any country?"