Pedro-Mateo v. INS

• Citation: 224 F.3d 1147
• Decision Date: 10 March 2000
• Docket Number: PEDRO-MATEO,No. 98-70535,98-70535
• Parties: (9th Cir. 2000) SANTIAGO, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1147

224 F.3d 1147 (9th Cir. 2000)

SANTIAGO PEDRO-MATEO, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 98-70535

U.S. Court of Appeals for the Ninth Circuit

Argued and Submitted March 10, 2000--Pasadena, California

Filed September 14, 2000

[Copyrighted Material Omitted]

COUNSEL: Denis W. Campbell, Law Offices of Curiel & Parker, Santa Monica, California, for the petitioner.

Michelle Gluck and John D. Williams, Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C., for the respondent.

Petition to Review a Decision of the Board of Immigration Appeals INS No.A70-637-599

Before: J. Clifford Wallace, Harry Pregerson, and Sidney R. Thomas, Circuit Judges.

OPINION

WALLACE, Circuit Judge:

Pedro-Mateo petitions for review of a decision by the Board of Immigration Appeals (Board) denying him relief from deportation. The Board exercised jurisdiction pursuant to 8 C.F.R. S 3.1(b). Because Pedro-Mateo's deportation proceedings commenced before April 1, 1997, and a final order of deportation was entered after October 30, 1996, we have jurisdiction over his petition pursuant to 8 U.S.C.S 1105a, as amended by section 309(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. See Avetova lisseva v. INS, 213 F.3d 1192, 1195 n.4 (9th Cir. 2000). Wedeny the petition.

I

Pedro-Mateo is a Kanjobal Indian from Guatemala. In October 1991, he was kidnaped by soldiers from his village in the highlands of Huehuetenango. While in custody, Pedro-Mateo was beaten repeatedly after he refused the soldiers' demands that he join the army. When the army discovered that Pedro-Mateo was less than 18 years old, they released him.

A few weeks later, Pedro-Mateo was kidnaped again, this time by the guerrillas. He once again refused to join, and once again was beaten. The guerillas held him for several days until they, too, discovered that he was less than 18 years old and released him.

Three months later, Pedro-Mateo entered the United States without inspection at Nogales, Arizona.

II

Section 208(a) of the Immigration and Nationality Act (Act), 8 U.S.C. S 1158(a), gives the Attorney General discretion to allow political asylum to any alien the Attorney General determines to be a "refugee" within the meaning of section 101(a)(42)(A) of the Act. 8 U.S.C. S 1101(a)(42)(A). A refugee is defined as an alien unwilling to return to his country of origin "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." Id. To establish eligibility on the basis of a "well-founded fear of persecution," an alien's fear of persecution must be both subjectively genuine and objectively reasonable. ArriagaBarrientos v. INS, 925 F.2d 1177, 1178 (9th Cir. 1991). "The objective component requires a showing, by credible, direct, and specific evidence in the record, of facts that would support a reasonable fear of persecution." Id. at 1178-79. The applicant has the burden of making this showing. Duarte de Guinac v. INS, 179 F.3d 1156, 1159 (9th Cir. 1999).

Section 243(h) of the Act, 8 U.S.C. S 1253(h), requires the Attorney General, subject to certain exceptions not relevant here, to withhold deportation "if the Attorney General determines that such alien's life or freedom would be threatened . . . on account of race, religion, nationality, membership in a particular social group, or political opinion. " An alien is statutorily eligible for such relief only when he demonstrates a "clear probability of persecution," defined as it being "more likely than not" that the alien will be persecuted if deported. Acewicz v. INS, 984 F.2d 1056, 1062 (9th Cir. 1993) (internal quotation omitted). A failure to satisfy the lower standard of proof required to establish eligibility for asylum therefore necessarily results in a failure to demonstrate eligibility for withholding of deportation. Ghaly v. INS, 58 F.3d 1425, 1429(9th Cir. 1995). Thus, for purposes of this opinion, we will focus on whether Pedro-Mateo proved that he was eligible for asylum.

The Board's purely legal interpretations of the Act are reviewed de novo, but are generally entitled to deference under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Ghaly , 58 F.3d at 1429. The Board's factual determinations, including its finding of whether an applicant has demonstrated a "well-founded fear of persecution," are reviewed for substantial evidence. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Under the substantial evidence standard of review, the court of appeals must affirm when it is possible to draw two inconsistent conclusions from the evidence. Lambert v. Ackerley, 180 F.3d 997, 1012 (9th Cir. 1999) (en banc). The substantial evidence standard of review is "highly deferential" to the Board, Pal v. INS, 204 F.3d 935, 937 n.2 (9th Cir. 2000), and for us to disturb the Board's decision, Pedro-Mateo must show that "the evidence not only supports . . . but compels" reversal. EliasZacarias, 502 U.S. at 481 n.1 (emphasis in original).

III

Pedro-Mateo raises the issue of whether "forced recruitment" by the Guatemalan government or the guerillas should be considered persecution "when it is directed in a discriminatory manner," implying that if the answer is yes, he should prevail. However there is an initial question: whether PedroMateo has established that he was forcibly recruited on account of any of the statutorily prohibited reasons. 8 U.S.C. S 1101(a)(42)(A).

At the deportation hearing, the immigration judge (IJ) found that Pedro-Mateo had presented "no evidence whatsoever that [he] was persecuted on account of his religion as a Catholic or as an indigenous Indian," as Pedro-Mateo claimed. On appeal, the Board agreed, finding that Pedro Mateo failed to establish that either the military or the guerillas were interested in recruiting him for any reason other than his physical presence in a particular war torn region of Guatemala.

In his petition, Pedro-Mateo argues that the Board's ruling should be overturned because "there is adequate evidence in the record to show that [he] was persecuted because of his race and his membership in a particular social group." Pedro-Mateo's descriptions of his social group, however, are shifting and muddled. In his trial brief before the IJ, he referred loosely to both the "Indian race in Guatemala " and the "Indians in the rural highlands" as a race, nationality, and social group. At the hearing before the IJ, his attorney's description was narrower, identifying the "Mayan Konjobao[sic] Indian"as "a social group of rural highland Indian dweller[s]." In his brief on appeal to the Board, he asserted that the "Mayan villages of western Guatemala are distinctive and cohesive social groups." His brief to this court describes his social group as "indigenous [people] occupying a conflicted area in the fight between the government and the guerrillas," while the reply brief simply identifies "Indigenous people" as his social group. In addition to the fact that there is no such evidence in the record, the Supreme Court specifically held in Elias Zacharias that "to reverse the [Board] . . . we must find that the evidence not only supports that conclusion but compels it." 502 U.S. at 481 n.1 (emphasis in original).

Pedro-Mateo points to items in the record purporting to demonstrate the merit of his position. These items (such as an Amnesty International report, a...