Vides-Vides v. I.N.S.

Decision Date18 April 1986
Docket NumberP,VIDES-VIDE,No. 84-7617,84-7617
Citation783 F.2d 1463
PartiesLuisetitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
CourtU.S. Court of Appeals — Ninth Circuit

Graciela Zavada, El Centro, Cal., for petitioner.

Millicent Y. Clarke, Washington, D.C., for respondent.

Petition to Review a Decision by the Board of Immigration Appeals.

Before ANDERSON, BEEZER and BRUNETTI, Circuit Judges.

BEEZER, Circuit Judge:

Petitioner, Luis Vides-Vides, a citizen of El Salvador who entered the United States without inspection, applied for asylum and withholding of deportation. The Immigration Judge (IJ) denied the application, petitioner appealed, and the Board of Immigration Appeals (BIA) dismissed the appeal. Petitioner seeks review of the BIA's decision. We affirm and deny the petition for review.

I BACKGROUND

Vides-Vides is a 30 year old citizen of El Salvador who first entered the United States illegally in 1978. He was deported to El Salvador in June 1979, where he remained for over a year before illegally re-entering the United States in October 1980. In February 1984, the INS again instituted deportation proceedings against Vides-Vides.

On April 5, 1984, a deportation hearing was held in El Centro, California. Although Vides-Vides had been given two previous postponements to obtain an attorney, and had been provided with a list of free legal services in the El Centro area, he appeared at the hearing without a lawyer and expressed some confusion as to why his Los Angeles attorney was not present in the El Centro courtroom. The IJ decided that Vides-Vides had had an adequate opportunity to obtain counsel and proceeded with the hearing. Vides-Vides conceded deportability on the basis of his illegal entry into the United States without inspection. The IJ gave Vides-Vides two weeks to file an application for asylum and withholding of deportation, which he did.

A copy of Vides-Vides' application was sent to the State Department, which advised the IJ that "we believe that the applicant has failed to establish a well-founded fear of being persecuted in El Salvador.... Consequently, the applicant does not appear to qualify for asylum."

On June 12, 1984, a second hearing was held before a different IJ to determine whether Vides-Vides was entitled to asylum. The new IJ began the second hearing by summarizing the proceedings at the first hearing and other matters contained in the record. He then examined Vides-Vides' reasons for leaving El Salvador and the bases for his fear of persecution.

Vides-Vides left El Salvador about the time the civil war began. He testified that he did so because both the military and the various factions engaged in the civil war attempted to pressure young people to join their causes, that he wished to remain neutral and not to join any group, and that he feared for his freedom and safety if he were asked to join a group and refused.

Vides-Vides admitted, however, that he had never had any personal contact or problems with the military whatsoever. On the other hand, he expressed a belief that one of his ten siblings had been killed by the military while Vides-Vides was in the United States, apparently because he did not belong to any political organizations. Vides-Vides admitted, however, that neither he nor any member of his family had witnessed the alleged killing or had direct knowledge concerning it, and that he could not produce any evidence of either the death or its circumstances.

Vides-Vides also testified that only one non-military faction, a group called the F.P.L., had contacted him personally about joining their group. Members of the F.P.L., who Vides-Vides declined to name for fear of retaliation, approached him briefly two or three times in public places and invited him to attend their meetings and listen to their speakers. Vides-Vides declined the invitations, and nobody tried to force him to join that or any other group.

Vides-Vides admitted generally that he had never "been persecuted in any form whatsoever by anybody," and that he had never been threatened or physically mistreated by anyone in his life. He also admitted that he had had no problems with any of the factions either before he left El Salvador the first time or during the sixteen months that he stayed there before returning to the United States. Similarly, he testified that except for his brother, none of his other family members had had any problems with the government after he left. Vides-Vides further stated that he supported his country's government, that he had never openly criticized it, that he lived in areas controlled by the government, and that he was free to leave El Salvador at any time. Finally, when asked if either side would single him out for persecution if he returned to El Salvador, or if anyone would treat him any differently In summary, Vides-Vides testified that he left El Salvador because he feared he would be forced to join one of the competing factions engaged in that country's civil war, but that he had never been subjected to any personal or unusual persecution or pressure in that regard. He based his application for asylum solely on fear of persecution for his political opinion, which he expressed as his desire to remain neutral.

than any other Salvadorian, Vides-Vides claimed that they would but was unable to give any reasons to support the assertion.

The IJ applied the same standard to the application for asylum as to the application for withholding of deportation, and concluded that Vides-Vides had not met his burden of proving that he would be persecuted if he returned to El Salvador. He found that Vides-Vides had never been persecuted, arrested, threatened or forced to do anything in the past, that he has never opposed the government or belonged to any political organization, that he "does not hold a political opinion," and that his fears are based on "pure speculation." The IJ ordered Vides-Vides deported.

Vides-Vides then appealed to the BIA, which concluded that "[w]hether his claim is assessed in terms of demonstrating a 'clear probability,' a 'realistic likelihood,' a 'reasonable probability' or a 'good reason to fear' persecution, we find no adequate demonstration that this alien's fear of persecution is well-founded." The BIA therefore dismissed the appeal. Vides-Vides seeks review of that decision.

II LAW AND STANDARDS OF REVIEW
A. Prohibition of Deportation

Under section 243(h) of the Immigration and Nationality Act, the Attorney General is prohibited from deporting an alien whose "life or freedom would be threatened ... on account of ... political opinion." 8 U.S.C. Sec. 1253(h). An alien must show a "clear probability" of persecution to satisfy the requirements of section 1253(h). INS v. Stevic, 467 U.S. 407, 104 S.Ct. 2489, 2496, 81 L.Ed.2d 321 (1984). Under the clear probability standard, an alien must show that "it is more likely than not" that he or she will be persecuted. Id. 104 S.Ct. at 2498. If the alien can meet this burden of proof, the Attorney General must withhold deportation. Id. at 2496 n. 15.

We review the BIA's denial of an application for prohibition of deportation under the substantial evidence standard. Garcia-Ramos v. INS, 775 F.2d 1370, 1373 (9th Cir.1985); Bolanos-Hernandez v. INS, 767 F.2d 1277, 1282 n. 8 (9th Cir.1984).

B. Political Asylum

An alien who is unable to demonstrate a "clear probability of persecution" may still be eligible for a discretionary grant of asylum if he can show that he is a "refugee" within the meaning of section 208(a) of the Refugee Act of 1980. See 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 ... political opinion." Id.

We review section 208(a) decisions denying asylum under a two-tier standard. First, we must determine whether substantial evidence supports the BIA's determination that an alien has failed to prove a well-founded fear of persecution. If refugee status has been established, we review the BIA's denial of asylum for abuse of discretion. Garcia-Ramos, 775 F.2d at 1373; Bolanos-Hernandez, 767 F.2d at 1282 n. 9.

III CLEAR PROBABILITY OF PERSECUTION ANALYSIS

Although the prohibition of deportation standard of "clear probability of persecution" under section 243(h), 8 U.S.C. Sec. 1253(h), has not yet been clearly defined, we have attempted to specify the nature The IJ and the BIA both concluded that Vides-Vides had failed to establish a clear probability of persecution. These decisions are supported by substantial evidence in the record.

                and amount of proof required to meet that standard.  "Mere assertions of possible fear" are insufficient to establish a clear probability of persecution.    Shoaee v. INS, 704 F.2d 1079, 1084 (9th Cir.1983).  We have also said that relief under section 1253(h) requires "some factual support", some "concrete evidence", to support the claim that persecution is likely.  Id.;  Khalil v. District Director of the INS, 457 F.2d 1276, 1278 (9th Cir.1972).  Each case, however, must be evaluated on its own merits to determine whether the alien's factual support and concrete evidence are sufficient to establish that it is "more likely than not" that he will suffer persecution.    See McMullen v. INS, 658 F.2d 1312, 1317 (9th Cir.1981)
                

Vides-Vides admits that he has never been personally threatened, attacked, coerced or persecuted by either the military or the guerrillas. Although he asserts that his brother was killed by the military because of his refusal to take a side in the civil war, Vides-Vides concedes that neither he nor his family has any direct knowledge or evidence of the death or its circumstances. 1 More importantly, Vides-Vides...

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