Unpublished Disposition, 934 F.2d 324 (9th Cir. 1986)

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U.S. Court of Appeals for the Ninth Circuit - 934 F.2d 324 (9th Cir. 1986)

Oscar Roque GATCHALIAN, Petitioner,v.IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 90-70204.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 14, 1991.Decided May 31, 1991.

Before ALARCON, KOZINSKI and RYMER, Circuit Judges.


MEMORANDUM* 

Oscar Roque Gatchalian seeks review of the denial of his application for withholding of deportation, asylum, and voluntary departure. We conclude that the determination of the Board of Immigration Appeals (BIA) of his application for asylum and withholding of deportation is supported by substantial evidence, and that the BIA did not abuse its discretion by denying his request for voluntary departure.

On July 13, 1983, Gatchalian was charged in an order to show cause with being deportable as an alien who remained in the United States after the expiration of his nonimmigrant visa. 8 U.S.C. § 1251(a) (2). On December 1, 1986, an immigration judge denied Gatchalian's application for asylum and withholding of deportation as well as his request for voluntary departure. On appeal, the BIA held that Gatchalian failed to show that he was eligible for asylum in that he had not demonstrated a well-founded fear of persecution. The BIA also concluded that even if Gatchalian met the statutory eligibility requirements, it would deny asylum as a matter of discretion. The BIA further determined that Gatchalian had not satisfied the clear probability standard that must be met to obtain an order withholding deportation. Accordingly, the BIA dismissed Gatchalian's appeal and ordered that he be deported.

Gatchalian is a 49-year-old citizen of the Philippines. Prior to entering the United States, he was the manager of his in-laws' large farm on the Island of Mindanao, in the Philippines. During his employment as a manager, he received three letters from the New Peoples Army (NPA), a communist group, that threatened to harm him and his family. He entered the United States on November 12, 1982, on a nonimmigrant visa which he obtained from the United States Consulate in the Philippines. His wife joined him in April of 1983. Gatchalian's wife returned to the Philippines in August 1983. Because of the threats received by Gatchalian, his wife stayed with friends and relatives in Davao, Sibu, and Manilla until she returned to the United States in March 1985. During this period, she was not contacted by the NPA.

Gatchalian's father, one brother and his two sisters have moved from Mindanao to the Island of Palawan. After Gatchalian entered the United States, his wife's cousin was shot to death while he was being trained to replace Gatchalian as the farm manager.

Gatchalian contends that he has shown a well-founded fear of persecution based on his membership in a particular social group, landowners in the Philippines, and his political opinion, and that the BIA abused its discretion by denying him asylum. He also argues that he has shown a clear probability of persecution and is entitled to withholding of deportation. He also contends that the BIA abused its discretion by denying his request for voluntary departure.

We review the factual findings of the BIA in support of the dismissal of an appeal of the denial of an application for withholding deportation and for asylum to determine whether they are "not substantially reasonable." Artiga Turcios v. INS, 829 F.2d 720, 723 (9th Cir. 1987).

To establish eligibility for asylum, an applicant must show that he or she has a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group or political opinion. A well-founded fear of persecution has a subjective and an objective component. The subjective component requires that an alien's fear be genuine. This prong is satisfied in this matter because the BIA did not question Gatchalian's credibility. Cuadras v. INS, 910 F.2d 567, 571 (9th Cir. 1990). To be objectively reasonable, there must be credible, direct and specific evidence in the record which demonstrated a reasonable possibility of persecution. Echeverria-Hernandez v. INS, 923 F.2d 688, 690 (9th Cir. 1991); Mendoza Perez v. INS, 902 F.2d 760, 763 (9th Cir. 1990).

Gatchalian argues that "landowners" in the Philippines constitute a particular social group and that he was a member of that group. He also contends that although he does not consider himself to be involved in politics, the NDA targeted him for persecution because of his support of the Marcoses' programs. We need not decide whether Gatchalian was persecuted as the result of his membership in a social group or due to his political opinion, because the BIA's conclusion that Gatchalian failed to demonstrate a reasonable possibility of persecution is supported by substantial evidence. In determining the possibility that Gatchalian will be persecuted, we examine "the guerrillas' will or ability to carry out the threat, not simply whether threats were made." Rodriguez-Rivera v. INS, 848 F.2d 998, 1006 (9th Cir. 1988).

The BIA relied on several factors in finding that the NPA is unable and unwilling to carry out its threats against Gatchalian and his family. First, Gatchalian's immediate and extended family continues to live in various parts of the Philippines without having been threatened or harmed. Gatchalian's wife has spent several months in Gatchalian's home town without being harmed or even threatened.

Second, the record shows that Gatchalian can be deported to a part of the Philippines where he will not be subjected to persecution. We have previously noted that we can "consider evidence that [the alien] could avoid the geographical source of his danger" when we review the BIA's determination as to well-founded fear of persecution. Cuadras 910 F.2d at 571 n. 2. The BIA noted that the Philippines consist of numerous islands. The record supports the BIA's determination that the NPA does not have the same number of supporters on each of the islands. The NPA appears to be particularly active on the Island of Mindanao. Gatchalian failed to show that the NPA on Mindanao would be able to persuade communist guerrillas on other islands to carry out its threats against Gatchalian.

Third, although acts of violence against an alien's family or friends may establish a well-founded fear of persecution, we have required that that violence create a pattern of persecution closely tied to the petitioner. Echeverria-Hernandez, 923 F.2d at 691; Ramirez-Rivas v. INS, 899 F.2d 864, 867 (9th Cir. 1990). Gatchalian asserts that the shooting of his wife's cousin proves such a pattern of persecution. We disagree. Gatchalian did not present any evidence that the NPA was responsible for the death of his wife's cousin, or that the killing was politically motivated. Thus, it was not error for the BIA to find that the killing of the cousin was a random act that is indicative of the general level of violence in the Philippines. See Echeverria-Hernandez, 923 F.2d at 691 (without proof of political motive, the killings of petitioner's father, brother, and cousin cannot form the basis of her asylum claim); De Valle v. INS, 901 F.2d 787, 792 (9th Cir. 1990) (failing to prove that the killing of his uncle was politically motivated, the petitioner could not show that he faced dangers greater than those faced by fellow citizens).

We are persuaded that the BIA's determination that the evidence presented by Gatchalian fails to support a reasonable fear that he will face persecution on account of his membership in a particular social group or his political opinion is "substantially reasonable." He thus fails to satisfy the objective component necessary for statutory eligibility for asylum. Estrada-Posadas, 924 F.2d at 919; 8 U.S.C. § 1101(a) (42) (A). Because we conclude that the BIA's determination that Gatchalian is ineligible for asylum is supported by substantial evidence, we do not reach the question whether the BIA abused its discretion in denying asylum.

The Attorney General is required to withhold deportation of an alien upon proof of a clear probability of persecution, 8 U.S.C. § 1253(h). The clear probability standard is a higher standard than the well-founded fear standard applicable to asylum requests. Cuadras, 910 F.2d at 572. Because Gatchalian failed to show a well-founded fear of persecution, he has not met the higher burden of establishing a clear probability of persecution.

The decision to grant the discretionary relief of voluntary departure to an alien who has demonstrated statutory eligibility is within the discretion of the BIA and, we must examine the record to determine whether the BIA exercised its discretion in an arbitrary or capricious manner. Estrada-Posadas v. INS, 924 F.2d 916, 920 (9th Cir. 1991). The BIA has the discretion to permit an alien to depart voluntarily if he or she can establish good moral character for the five years preceding the request. Hernandez-Luis v. INS, 869 F.2d 496, 499 (9th Cir. 1989).

The administrative record shows that the denial of voluntary departure was supported by "a reasoned explanation based on legitimate concerns." Id. The BIA relied on the following factors: (1) Gatchalian misrepresented his intent to the United States Consulate when he obtained a visitor's visa to enter the United States, (2) Gatchalian procured false immigration documents while in the United States, (3) Gatchalian applied for asylum only after the INS discovered the fraud. Although the BIA did not specifically mention favorable factors such as Gatchalian's long presence in the United States, his steady employment, the lack of any criminal convictions, and the fact that his child is a United States citizen, the record demonstrates that the BIA and the immigration judge were aware of these factors. The BIA's decision was based on legitimate concerns. Accordingly, the denial of voluntary departure was not arbitrary or capricious.

The petition is DISMISSED.

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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