Rodriguez-Rivera v. U.S. Dept. of Immigration and Naturalization

• Decision Date: 22 January 1988
• Docket Number: No. 87-7140,P,RODRIGUEZ-RIVER,87-7140
• Citation: 848 F.2d 998
• Parties: Genaro Herminoetitioner, v. U.S. DEPARTMENT OF IMMIGRATION AND NATURALIZATION, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 998

848 F.2d 998

Genaro Hermino RODRIGUEZ-RIVERA, Petitioner, v. U.S. DEPARTMENT OF IMMIGRATION AND NATURALIZATION, Respondent.

No. 87-7140.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 22, 1988. ^*

Decided June 7, 1988.

As Amended Aug. 12, 1988.

Anne Kreider, Southern Arizona Legal Aid, Inc., Tucson, Ariz., for petitioner.

Ellen Sue Shapiro, Acting Asst. Director, Office of Immigration Litigation, Civ. Div., Washington, D.C., for respondent.

Petition for Review of an Order of the Board of Immigration Appeals.

Before WALLACE, SNEED and POOLE, Circuit Judges.

PER CURIAM:

Rodriguez-Rivera petitions for review of a final order of the Board of Immigration Appeals (BIA) denying his request for asylum and withholding of deportation. We have jurisdiction pursuant to 8 U.S.C. Sec. 1105a. We affirm the BIA's decision and deny the petition for review.

I

Rodriguez-Rivera is a twenty-eight year old citizen of El Salvador. In February 1982, he was issued a passport, left El Salvador, traveled through Guatemala and Mexico, and in March 1982 entered the United States without inspection. After his arrest, the Immigration and Naturalization Service (INS), in April 1982, instituted deportation proceedings against him. Rodriguez-Rivera, through his certified representative, conceded deportability. The immigration judge (IJ) adjourned the hearing in order to permit Rodriguez-Rivera to petition for withholding of deportation and asylum.

In his April 1983 application, Rodriguez-Rivera stated that he feared that he would "be killed summarily" solely because of his political beliefs and because he refused induction into military service. He also stated that he would be persecuted if he returned to El Salvador because he fled the country, because he applied for political asylum in the United States, and because he refused induction into military service. In addition, he stated that he was in a different position than the rest of El Salvador's citizens because he refused to support violence, because he was and is a Catholic, and because he did not vote in the March 1982 elections. The application recounted no incident of persecution of Rodriguez-Rivera or anyone known to him, but did state that he "had to flee in fear for my life from the utter terror of life that the civil war has caused."

Rodriguez-Rivera's hearing resumed in July. The IJ received Rodriguez-Rivera's application, as well as a letter from the State Department Bureau of Human Rights and Humanitarian Affairs stating that on the basis of Rodriguez-Rivera's application, he did not appear eligible for asylum because he failed to establish a well-founded fear of persecution on account of his race, religion, nationality, membership in a particular social group, or political opinion.

Rodriguez-Rivera's representative advised the IJ that Rodriguez-Rivera based his asylum application "on his membership in a social group known as Poor Urban Workers and on his political opinion." In support of these claims, Rodriguez-Rivera testified that at age nineteen, he obtained a job as a tailor and moved to Alminian, El Salvador. He stated that in early 1980, the Alminian police incarcerated him for failing to carry an identification card as required by El Salvador law. He did not testify how long the police detained him and did not testify that they mistreated him in any way.

He also testified that later in 1980, the Army detained him in order to require him to carry out his military service commitment; however, he stated that he escaped and went into hiding. Fifteen days later, he again encountered military authorities, but was not detained. He testified that he did not wish to serve in the military because he was "neutral" and did not believe that as a Catholic he could kill another human being, but did not explain how he avoided military conscription from early 1980 until February 1982, and did not indicate that any military authorities ever approached him during that time. He acknowledged, however, that the teachings of the Catholic Church do not prohibit military service and that El Salvador requires all able-bodied young men to serve in the military.

Rodriguez-Rivera also testified that he feared persecution because of two incidents he did not mention in his asylum application. First, he testified that he knew a teacher named Penny and that he had spoken to witnesses who said that the armed forces killed four members of Penny's family because Penny was a suspected guerrilla. He did not indicate that he was related to Penny or any member of her family or that he knew or participated in any political activities with Penny. Moreover, he testified that Penny was still alive.

Second, Rodriguez-Rivera testified that in December 1981 while at work, a guerrilla named Salvador attempted to recruit him. Rodriguez-Rivera stated that he declined the invitation, and Salvador stated that Rodriguez-Rivera would be "sorry" for not joining the guerrillas. Rodriguez-Rivera testified that he understood Salvador's comment to be a death threat. He then testified that later that month Salvador returned with two other individuals who put guns against his ribs and a gun against his head and threatened to kill him. Rodriguez-Rivera testified that he asked them not to kill him, and they complied and left. Rodriguez-Rivera stated that his brother had informed him that Salvador was now dead.

At some point following this second incident with Salvador, Rodriguez-Rivera decided to come to the United States because he was afraid that Salvador might try to kill him due to his neutrality. He also testified that he did not report Salvador's threats to the authorities because he feared that the authorities would then kill Salvador, and he did not want Salvador to die.

The IJ denied Rodriguez-Rivera's requests for asylum and withholding of deportation. The IJ stated that in order to qualify for asylum, Rodriguez-Rivera needed to satisfy 8 U.S.C. Sec. 1101(a)(42)(A)'s definition of refugee: one who is unwilling or unable to return to his homeland because of a well-founded fear of persecution on account of race, religion, political opinion, nationality, or membership in a particular social group. The IJ then stated that Rodriguez-Rivera based his asylum claim on his political opinion and his membership in a particular social group. After a lengthy review of the evidence, the IJ rejected Rodriguez-Rivera's argument that "poor urban workers" or "those who wish to remain neutral" constitute a "particular social group" within the meaning of section 1158(a). The IJ then rejected his argument that he had a well-founded fear of persecution on account of his political opinion. The IJ found that Rodriguez-Rivera had never been politically active and had never expressed his political viewpoint in El Salvador. Regarding the two instances of alleged persecution, the IJ concluded that the incident involving Penny did not relate to Rodriguez-Rivera and did not support his claim of persecution. As for the incident with Salvador, the IJ observed that Rodriguez-Rivera remained in El Salvador for nearly two months following his last encounter with Salvador, that Salvador was now dead, and that there was no indication that any guerrilla group was presently interested in Rodriguez-Rivera.

Having concluded that Rodriguez-Rivera did not qualify for asylum, the IJ found a fortiori that Rodriguez-Rivera was not entitled to withholding of deportation. Voluntary departure to Costa Rica was granted. Rodriguez-Rivera appealed and the BIA dismissed his appeal, affirming the denial of his request for withholding of deportation and asylum. He timely petitioned our court for review.

We review questions of law, such as whether the BIA applied the appropriate legal standard, de novo. Arteaga v. INS, 836 F.2d 1227, 1228 (9th Cir.1988) (Arteaga ). We review the factual findings underlying the BIA's decision under the "substantial evidence" standard. Id. Although under this standard we review the findings by a slightly stricter scrutiny than the clear error standard, we "must be careful to keep it sufficiently more deferential than de novo review." Diaz-Escobar v. INS, 782 F.2d 1488, 1492 (9th Cir.1986) (Diaz-Escobar ). In our government of separated powers, the judiciary must not " 'usurp Congress's grant of authority to the Attorney General by applying what approximates de novo appellate review.' " Id., quoting INS v. Rios-Pineda, 471 U.S. 444, 452, 105 S.Ct. 2098, 2103, 85 L.Ed.2d 452 (1985). Under the substantial evidence standard, courts may not reverse the BIA simply because they disagree with its evaluation of the facts. Id. at 1493. "All the substantial evidence standard requires is that the BIA's conclusion, based on the evidence presented, be substantially reasonable." Id.

II

On appeal, Rodriguez-Rivera challenges the denial of both his request for asylum and his request for withholding of deportation. First, he argues that the IJ applied the more stringent "clear probability" standard in assessing his asylum claim, that the BIA erred in assessing his claim that his neutrality constituted a political opinion under section 1158(a), and that the BIA's conclusion concerning his asylum claim is not supported by substantial evidence. Second, he argues that the BIA's conclusion concerning his claim for withholding of deportation is not supported by substantial evidence. We examine each argument in turn.

A.

Under section 1158(a), the Attorney General has discretion to grant an alien political asylum if the Attorney General determines the alien is a refugee within the meaning of 8 U.S.C. Sec. 1101(a)(42)(A). 8 U.S.C. Sec. 1158(a). Section 1101(a)(42)(A) defines a refugee as any person outside his country of nationality or habitual residence who is unable or unwilling to return to that country "because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership...