Javier Omar Giron-rizo, Petitioner, v. Immigration and Naturalization Service, Respondent, 85 F.3d 635 (9th Cir. 1996)

MEMORANDUM^* 

The petitioner appeals from an order of the Board of Immigration Appeals affirming an immigration judge's decision that Giron-Rizo did not qualify for asylum or withholding of deportation. Because the Board conducted a de novo review and did not incorporate the immigration judge's decision, we review the decision of the Board.

Although Giron-Rizo, a citizen and native of Nicaragua, was jailed for three months by the Sandinistas, he acknowledged on his asylum application that he was jailed for deserting the army. It is well established, however, that punishment for desertion does not constitute persecution. Matter of Virgil, Int.Dec. (BIA 1988). Apart from the punishment he received for deserting the army, Giron-Rizo did not present any evidence in his asylum application or hearing to show that he was persecuted in Nicaragua or that he had a well founded fear of persecution. He certainly did not present evidence that "... was such that a reasonable factfinder would have to conclude that the requisite fear existed." INS v. Elias-Zacarias, 502 U.S. 812, 815 (1992). Accordingly, we conclude that the BIA's decision that Giron-Rizo was not eligible for asylum was supported by substantial evidence in the record as a whole. If Giron-Rizo is ineligible for asylum, he is also ineligible for withholding of deportation. INS. v. Cardoza Fonseca, 480 U.S. 421 (1987). Therefore, we affirm the Board's decision.

The Petition is DISMISSED.