Diaz-Escobar v. I.N.S.

• Decision Date: 14 February 1986
• Docket Number: P,No. 84-7252,DIAZ-ESCOBA,84-7252
• Citation: 782 F.2d 1488
• Parties: Reginaldoetitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1488

782 F.2d 1488

Reginaldo DIAZ-ESCOBAR, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 84-7252.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 10, 1985.

Decided Feb. 14, 1986.

Michelle L. Crawford, El Centro, Cal., for petitioner.

Alison R. Drucker, Washington, D.C., for respondent.

Petition for Review of a Decision of the Immigration and Naturalization Service.

Before CHOY, GOODWIN, and WALLACE, Circuit Judges.

WALLACE, Circuit Judge:

Diaz-Escobar appeals the decision of the Board of Immigration Appeals (BIA) denying his request for asylum and for withholding of deportation. We have jurisdiction pursuant to 8 U.S.C. Sec. 1105a. We affirm.

I

Diaz-Escobar is a native and citizen of Guatemala who entered this country without inspection on October 14, 1982. On October 18, 1982, the Immigration and Naturalization Service (INS) instituted deportation proceedings against him by issuing an Order to Show Cause. At his deportation hearing, Diaz-Escobar conceded deportability under 8 U.S.C. Sec. 1251(a)(2), designating Costa Rica as the country of deportation, but petitioned for either asylum or withholding of deportation.

He stated in his application for these special relief provisions that he was unwilling to return to Guatemala for fear of being executed or persecuted if he continued to remain neutral in the conflict between the leftist guerrillas and the government. He added that he felt more secure in the United States. In his oral testimony, Diaz-Escobar stated that his departure from Guatemala was triggered by an anonymous letter found on the windshield of his car. He did not remember the exact date he received the alleged letter, nor could he produce it. But he testified that it warned him to leave the country or "be subject to the consequences." He admitted that he had never been harmed by the Guatemalan government nor had he had any problems with the guerrillas, although he testified that he had been a member of the military reserve during 1981 and produced a military identification card dated 1965. He also testified that he had been tried for committing homicide with a machete in 1977, but had been acquitted on the ground of self-defense. He testified that he had no idea who sent the letter or why anyone would send it to him. But he testified that he took the alleged threat seriously because he would not have been "the first person that had died from anonymous letters." He traveled through Mexico to reach this country, but did not request asylum from the Mexican authorities.

The immigration judge (IJ) requested an advisory opinion from the State Department's Bureau of Human Rights and Humanitarian Affairs, which concluded that Diaz-Escobar had failed to establish a well-founded fear of being persecuted in Guatemala if he were returned there. The IJ came to the same conclusion and thus denied the petitions for asylum and withholding of deportation. The IJ reasoned that Diaz-Escobar's testimony concerning the letter did not establish a well-founded fear of persecution. Because he could neither produce it or any other evidence corroborating his testimony about it nor explain convincingly why he feared its alleged threat, having stated that he did not know who wrote it and that he had no known enemies, there was nothing to suggest that it was a serious, politically motivated threat. Other than the letter, the IJ found nothing in the record that could possibly suggest that Diaz-Escobar might be singled out from other Guatemalans for persecution on account of one of the five statutory grounds. The IJ stated that Diaz-Escobar had never spoken out against the government, the government had never mistreated him, it had granted him an honorable discharge from the military reserve, and it had issued him a passport. Diaz-Escobar appealed to the BIA, but the BIA dismissed the appeal on the basis of its agreement with the IJ that Diaz-Escobar had failed to establish a well-founded fear of persecution.

II

This appeal involves claims under the asylum and withholding of deportation provisions. Section 208(a) of the Immigration and Nationality Act (Act), 8 U.S.C. Sec. 1158(a), gives the Attorney General discretion to grant an alien political asylum if the Attorney General determines the alien to be a refugee within the meaning of section 101(a)(42)(A) of the Act, 8 U.S.C. Sec. 1101(a)(42)(A). That section defines a refugee as any person outside his country of nationality or habitual residence who is unwilling to return to that country "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. Under section 208(a), therefore, asylum is a two-part process involving a determination of statutory eligibility and a discretionary determination once eligibility is established. If an alien is granted asylum, he obtains a full range of benefits including freedom of movement, employment rights, certain forms of public assistance, and potential adjustment of status after one year to that of a permanent resident alien without being subject to numerical limitations.

Like asylum, section 243(h) of the Act, 8 U.S.C. Sec. 1253(h), provides benefits for illegal aliens who potentially face persecution, though its benefits are more limited. But this limitation is balanced by the fact that its benefits are mandatory rather than discretionary once the petitioner meets the statutory eligibility standards. It states that "[t]he Attorney General shall not deport or return any alien ... to a country if the Attorney General determines that such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion." Id.

A.

Diaz-Escobar argues that although the IJ ruled he had no reasonably based fear of persecution, the BIA erred in dismissing the appeal by suggesting that the well-founded fear of persecution standard required proof of a clear probability of persecution. Prior to enactment of the Refugee Act of 1980, an alien arguably had to show a clear probability of persecution to meet the statutory threshold for asylum. See Bolanos-Hernandez v. INS, 767 F.2d 1277, 1282 n. 10 (9th Cir.1984) (Bolanos). The Refugee Act was intended to bring the language of our political asylum laws in line with articles 1.2 and 33.1 of the United Nations Convention Relating to the Status of Refugees, 189 U.N.T.S. 150 (July 28, 1951). In INS v. Stevic, 467 U.S. 407, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984) (Stevic), the Supreme Court held that the Refugee Act did not lessen the burden of proof for obtaining withholding of deportation from a clear probability of persecution. The Supreme Court assumed arguendo in Stevic that asylum's well-founded fear of persecution standard was a lesser burden, id. 104 S.Ct. at 2498, but it explicitly reserved that legal question. Id. at 2501. In Bolanos, we answered the question and stated that the well-founded fear standard is indeed a lesser burden than the clear probability of persecution standard, although we left open the question just what the well-founded fear standard requires. 767 F.2d at 1282-83; see also Garcia-Ramos v. INS, 775 F.2d 1370 (9th Cir.1985) (Garcia-Ramos).

Contrary to Diaz-Escobar's argument, the BIA did not equate the content of the well-founded fear standard with that of the clear probability standard. The BIA held that because Diaz-Escobar failed to show a well-founded fear of persecution, he a fortiori failed to show a clear probability of it whether or not the latter standard is more stringent or the same as the former. This is not an error of law.

B.

Even though the BIA used an appropriate legal standard for Diaz-Escobar's asylum claim, we must still review whether there was substantial evidence in the record to support the decision that Diaz-Escobar failed to show a sufficient danger of the type of persecution mentioned in the asylum or withholding of deportation provisions to satisfy the statutory threshold for asylum or to obtain withholding of deportation relief. See McMullen v. INS, 658 F.2d 1312, 1316 (9th Cir.1981). If the BIA is correct that Diaz-Escobar failed to demonstrate a well-founded fear of persecution, we will need to proceed no further because a fortiori, Diaz-Escobar would have failed to meet the more stringent standard of clear probability of persecution.

We must first consider what a well-founded fear of persecution means. The Supreme Court has stated that the clear probability of persecution standard requires proof that persecution is more likely than not. See Stevic, 467 U.S. at 424, 104 S.Ct. at 2498. In Bolanos, we stated that the well-founded fear standard is less burdensome than a clear probability, but we did not define it further except to state that it had both a subjective and an objective component. See 767 F.2d at 1283 n. 11; see also Garcia-Ramos, 775 F.2d at 1373-74. The subjective component requires a showing that the alien's fear is genuine. The objective component requires a showing, by credible, direct, and specific evidence in the record, of facts that would support a reasonable fear that the petitioner faces persecution. See Espinoza-Martinez v. INS, 754 F.2d 1536, 1540 (9th Cir.1985) ("specific" and "objective" evidence); Martinez-Romero v. INS, 692 F.2d 595, 595-96 (9th Cir.1982) (per curiam) ("special circumstances" must be present--evidence of widespread violence is insufficient); cf. Garcia-Ramos, 775 F.2d at 1374 (evidence of open and extensive activism in a persecuted political group may suffice); Zepeda-Melendez v. INS, 741 F.2d 285, 290 (9th Cir.1984) (evidence of general climate of violence insufficient to justify withholding of deportation). The petitioner need not show that his well-founded fear is "more likely than not," i.e., a "clear probability." See Stevic, 467 U.S. at...