Unpublished Disposition, 935 F.2d 275 (9th Cir. 1985)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 275 (9th Cir. 1985)

No. 89-70535.

United States Court of Appeals, Ninth Circuit.

Before HUG and POOLE, Circuit Judges, and ATKINS, District Judge* .


The petitioning aliens are Federico Nunez and his wife Luisa, and Ricardo Flores, his wife Maria and their son Richard. Luisa Nunez and Maria Flores are sisters. Petitioners appeal from a decision of the Board of Immigration Appeals (BIA), finding, after de novo review, that they had not demonstrated the well-founded fear of persecution for an asylum claim. Because petitioners did not meet the well-founded fear standard even if their claims were to be taken as true, the BIA also found no prejudice to the petitioners from the Immigration Judge's (IJ's) adverse credibility determination and his denial of their motions for a change of venue. We affirm.

Petitioners were arrested by the Immigration and Naturalization Service (INS) near El Paso, Texas on June 21, 1985, shortly after having entered the United States illegally. Petitioners initially appeared before an IJ on July 3, 1985 and requested political asylum. A hearing on their asylum applications was set for December 19, 1985. Petitioners were released on bond and traveled to San Francisco, California.

Between their release on bond on July 11 and their December asylum hearing, petitioners made two motions for a change of venue to San Francisco. The petitioners noted that they had retained counsel in San Francisco and were residing with relatives there, had located witnesses who knew them well and could testify to conditions in Nicaragua but who could not afford to travel to Texas, and noted also that they had taken measures--such as conceding deportability, waiving reading of their rights, and admitting the allegations in the Order to Show Cause--to insure that the INS would incur no prejudice from the transfer. The IJ denied both motions. The petitioners made a third motion at the commencement of their asylum hearing which was also denied. Petitioners initially provided summaries of the prospective witnesses' testimony to indicate its relevance and importance, and after the denial of their motions provided declarations by the absent witnesses which the IJ declined to consider on the basis that they were "unsworn." AR 118-119.

Nunez testified that he had been a watchmaker and a violinist in the Nicaraguan National Orchestra. He stated that he came to be identified as a counterrevolutionary by the Cuban and Soviet advisers at his music academy because he refused to attend Sandinista meetings and refused to play in concerts for Sandinista soldiers. The local Sandinista Defense Committee (CDS) warned him and his wife that they would have their ration cards confiscated when Nunez' adult stepson refused to report for military duty. The director of Nunez' orchestra also warned Nunez that he, the director, could not be responsible for the consequences because Nunez had failed to do his duty. Nunez testified that the event which precipitated his flight with his family was when a colleague who had similarly refused to attend Sandinista political meetings had her house broken into and her piano vandalized by a mob of Sandinista supporters.

Flores testified that he and his family refused to attend Sandinista meetings and would not allow their son to join the Association of Sandinista Children. He testified that he and his wife sold their house at a substantial financial loss and in spite of the illegality of such sales. When the illegal sale was discovered, a family friend who was also an officer in the CDS warned them that they were going to be investigated and that they should leave before being arrested. Flores further testified that his house was stoned and that people accused of being counter-revolutionaries are often beaten. Both petitioners testified that they never demonstrated against the Sandinistas or supported the contras.

The IJ found that the petitioners' testimony lacked credibility. The IJ based his determination on a contradiction between their testimony and their written applications regarding whether the petitioners made visa applications in Nicaragua that were denied; on the fact that Flores could not recall how he subsequently arranged for his daughter to be brought to the United States; and on the fact that petitioners did not make a request for political asylum until thirteen days after they entered the United States because they claimed they did not know the proper procedures. The IJ at no time discussed the substance of the petitioners' asylum claim. He denied asylum and withholding of deportation based on the negative credibility determination, and granted voluntary departure.

The BIA found that although the aliens were denied the opportunity to present the in-court testimony of their witnesses, the witnesses' declarations added nothing meaningful to the petitioners' applications. AR 7. The BIA did not explicitly overturn the IJ's negative credibility determination, but instead proceeded as if the petitioners' assertions were true, noting that they had reviewed the record de novo and made their "own independent determinations of law and fact based on the evidence." AR 5. The BIA determined that the petitioners had been afforded a full opportunity to present their asylum claim and had suffered no prejudice, and dismissed the appeal. AR 7.

This court has jurisdiction to hear this timely appeal under Sec. 106(a) of the Immigration and Nationality Act (INA), 8 U.S.C. § 1105(a). We review the BIA's interpretation of law de novo, and review the BIA's decision to grant or deny political asylum for substantial evidence. De Valle v. INS, 901 F.2d 787, 790 (9th Cir. 1990).

* Substantial Evidence of Well-Founded Fear

The well-founded fear standard, essential to the determination that an asylum applicant is a "refugee" under the terms of Sec. 101(a) (42) (A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a) (42) (A), has both a subjective and an objective component. In addition to subjective fear, an applicant for asylum must establish that a reasonable person in his or her circumstances would fear persecution. Matter of Mogharrabi, Interim Decision No. 3028 (BIA 1987). The Supreme Court has held that a well-founded fear may exist when the change of persecution is substantially less than 50%. INS v. Cardoza-Fonseca, 767 F.2d 1448 (9th Cir. 1985), aff'd 480 U.S. 421, 431 (1987); Blanco-Comarribas v. INS, 830 F.2d 1039, 1043 (9th Cir. 1987) (holding that the objective component is satisfied as long as the "fear is based in reality").

The BIA correctly concluded that the fear alleged by the petitioners did not have a sufficiently objective basis to qualify as well-founded. AR 5-6. Even accepting Nunez' fear as subjectively genuine, his testimony amounted primarily to an account of warnings and name-calling--conditions not unusual for a country undergoing a civil war, where an adult son has evaded a mandatory conscription order. This court has held that the asylum statute provides no protection to persons who refuse to perform duties owed to their countries of citizenship. Rodriguez-Rivera v. INS, 848 F.2d 998, 1005 (9th Cir. 1988) (Salvadoran government's effort to recruit petitioner does not equal political persecution); Kaveh-Haghigy v. INS, 783 F.2d 1321, 1323 (9th Cir. 1986) (drafting petitioner into the Iranian army to fight in an "illegal, revolutionary war" is not persecution). Nunez did not actually lose his job or his ration card, and the reason he cited for not wanting to play in the orchestra at Sandinista military bases was that he would be transported there in an unsafe truck. AR 114-115.

Flores' claim has an even more attenuated relationship to political persecution: Besides his neighbors "spread [ing] rumors" when he refused to let his son join the Association for Sandinista Children, AR 216, the only persecution he alleges was after he violated the law by selling his house, an act which was "prohibited." AR 144. He and his family then fled when a friend warned them that somebody would probably denounce them, and some neighbors threw stones at their house. AR 141.


Fairness of the Proceedings: Change of Venue and Credibility Findings

Because we uphold the BIA's determination after its de novo review that the petitioners would not have met the requisite standards for political asylum even if all of their allegations were true, we find that neither the IJ's denial of petitioners' motions for a change of venue nor his adverse credibility finding was prejudicial. The order of the BIA is AFFIRMED.


The Honorable C. Clyde Atkins, Senior District Judge for the Southern District of Florida, sitting by designation


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