Unpublished Disposition, 914 F.2d 263 (9th Cir. 1990)

No. 88-7150.

United States Court of Appeals, Ninth Circuit.

Before NELSON and TROTT, Circuit Judges, and STEPHENS^* 

MEMORANDUM^** 

BACKGROUND

Osbaldo Montes-Ramos petitions for review of the Board of Immigration Appeals' decision denying his motion to reopen his deportation hearings. Because we agree with the BIA's finding that Montes-Ramos failed to establish a prima facie claim, we affirm.

Montes-Ramos filed an application for asylum on May 3, 1982. He states that he feared persecution because he did not vote in the 1982 election, because he had fled the country, and because he had applied for asylum in the United States. At his continued hearing on July 21, 1982, Montes-Ramos added that he feared for his life because of his membership in a catechist discussion group from 1976 to 1978.

The Immigration Judge denied Montes-Ramos' asylum claim, finding that Montes-Ramos had failed to establish a well-founded fear of persecution in El Salvador, but granted his request for voluntary departure. Montes-Ramos appealed to the BIA. The BIA summarily dismissed the appeal on November 18, 1982 for failure to specify the reasons for appeal.

Montes-Ramos petitioned the Ninth Circuit for review of the BIA's dismissal. On July 31, 1985, we stayed the proceedings to allow Montes-Ramos to move the BIA to reopen his case. He filed that motion to reopen and on December 21, 1987 we dismissed the petition to the Ninth Circuit with direction that the BIA consider the motion to reopen. In his motion, Montes-Ramos stated that he had substantial new evidence consisting of information about his activities in a trade union in El Salvador. He claimed that because he was afraid to divulge these facts at his original hearing, the evidence was effectively unavailable at the time.

On March 9, 1988, the BIA denied Montes-Ramos' motion to reopen on three grounds. First, it found that his allegations lacked credibility. Second, it found "unconvincing" his explanation of why he originally failed to present his story. Finally, and most importantly, the BIA held that Montes-Ramos had failed to state a prima facie case for asylum or prohibition of deportation.

DISCUSSION

To obtain withholding of deportation, a person must show that, if deported to his home country, it is more likely than not that his life or freedom would be threatened on account of race, religion, nationality, membership in a particular social group, or political opinion. Immigration and Nationality Act (INA) Sec. 243(h), 8 U.S.C. § 1263(h). To establish eligibility for asylum, an applicant must show that he has a well-founded fear of persecution on account of at least one of those same five bases. INA Sec. 208(a), 8 U.S.C. § 1158(a); INA Sec. 101(a) (42) (a), 8 U.S.C. § 1101(a) (42) (A).

The BIA found that Montes-Ramos failed to present a prima facie case meeting either of these tests. Under this finding, if everything petitioner claimed in his motion to reopen is credited as true, he nonetheless failed to satisfy the requirements for asylum or withholding of deportation.

We review denials of motions to reopen based on the applicants failure to make a prima facie case of eligibility for asylum or withholding of deportation under the abuse of discretion standard. Elias Zacarias v. INS, No. 88-7507, slip op. at 7734 (9th Cir. July 23, 1990). The Board must accept the factual statements in the alien's affidavits as true and the Board "abuses its discretion if it fails to find a prima facie case established when the evidence in the affidavits satisfies the requirements for eligibility for substantial relief." Elias Zacarias at 7734-7735.

We find that even if all of Montes-Ramos' allegations are accepted as true, that he failed to present a prima facie case for relief. Montes-Ramos' membership in the catechist group cannot lead to a well-founded fear of persecution or a likelihood that his life or freedom would be threatened since there is no indication that the government of El Salvador ever had knowledge of his membership in that organization. Although petitioner alleges that other members of the group were persecuted, he does not present evidence that he or any of his relatives received any threats as a result of his membership in the organization. Montes-Ramos remained in El Salvador three years after leaving the catechist group and did not receive threats at any time during that three year period.

Likewise, we find that Montes-Ramos has not shown a likelihood of persecution as a result of his union activities. The fact that he was transferred to a dangerous location after he participated in a work stoppage does not constitute persecution. The government posted guards to protect him while he worked in that location. While Montes-Ramos may have legitimately been in fear of working in proximity to a guerrilla dominated war zone, such fear does not constitute a fear of persecution by the government.

Since we find that Montes-Ramos failed to present a prima facie case for asylum or withholding of deportation, we need not review the other two bases for the BIA's decision. Even if the BIA erred in concluding that petitioner's allegations lacked credibility and that petitioner's rationale for not raising all of his claims in his initial application was insufficient we would not reach a different outcome. In our analysis of Montes-Ramos' failure to present a prima facie case, we accepted all of his allegations in both his initial application and the motion to reopen as true. We therefore affirm the decision of the BIA.

AFFIRMED.