De Valle v. I.N.S.

• Decision Date: 09 July 1990
• Docket Number: No. 88-7475,88-7475
• Citation: 901 F.2d 787
• Parties: Dilcia Reyes De VALLE, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 787

901 F.2d 787

Dilcia Reyes De VALLE, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent.

No. 88-7475.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 7, 1989.

Decided April 23, 1990.

As Amended July 9, 1990.

Gregory S. Sergienko, Barrett, Hale & Gilman, Seattle, Wash., for petitioner.

Steven L. Barrios, Office of Immigration Litigation, Civil Div., Dept. of Justice, Washington, D.C., for respondent.

Petition for Review of a Decision of the Board of Immigration Appeals.

Before WALLACE and NELSON, Circuit Judges, and WILSON, ^* District Judge.

WALLACE, Circuit Judge:

De Valle petitions for review of the denial by the Board of Immigration Appeals (BIA) of her applications for asylum and withholding of deportation. The BIA had jurisdiction pursuant to 8 C.F.R. Secs. 3.1(b)(2) and 242.21 (1989). We have jurisdiction over this timely petition pursuant to 8 U.S.C. Sec. 1105a(a). We deny the petition.

I

De Valle is a citizen of El Salvador who entered the United States without inspection in March of 1984. Deportation proceedings were initiated against her on July 2, 1985. She conceded her deportability, but applied for asylum and withholding of deportation. The immigration judge (IJ) denied her application for relief. De Valle appealed to the BIA, which upheld the decision of the IJ.

De Valle's husband was a sergeant in the Salvadoran Army from 1975 to 1981. Mr. De Valle testified that in 1981, as a member of the Army, he was forced to participate in civilian massacres, though he stated that he himself did not shoot at any civilians. He also testified that in 1981 he was shot by assailants while in uniform, but off-duty. Mr. De Valle testified that he was ordered back to duty shortly after this shooting, but refused to go because he did not want to participate in further massacres and did not want to be shot. He then fled to the United States with his wife. After several attempts, the De Valles unlawfully entered the United States. Mrs. De Valle testified that she is afraid to return to El Salvador because of her husband's peril and because her uncle and his family were killed for unknown reasons in 1979.

II

Before reviewing the merits of De Valle's asylum and withholding claims, we address De Valle's contention that pursuant to 8 U.S.C. Sec. 1158(c) her asylum claim should be treated the same as her husband's claim. That contention stems from a misreading of section 1158(c).

Section 1158(c) states that "[a] spouse ... of an alien who is granted asylum under subsection (a) of this section may, if not otherwise eligible for asylum under such subsection, be granted the same status as the alien if accompanying, or following to join, such alien." 8 U.S.C. Sec. 1158(c) (emphasis added). We need look no further than the plain language of this statute to see that it does not pertain to the circumstances presented in this case. The terms of the statute apply only to the spouse of an alien "who is granted asylum." Mr. De Valle has not been granted asylum. Rather, the IJ denied his petition for asylum and his appeal to the BIA was held in abeyance while he pursued other relief. Since De Valle's claims are not legally coextensive with those of her husband, they must be analyzed on a wholly individualized basis.

III

Granting relief pursuant to section 1158(a) is within the discretion of the Attorney General. INS v. Cardoza-Fonseca, 480 U.S. 421, 428 n. 5, 107 S.Ct. 1207, 1211 n. 5, 94 L.Ed.2d 434 (1987). Consequently, we review the BIA's ultimate decision not to grant relief under that section for an abuse of discretion. Bolanos-Hernandez v. INS, 767 F.2d 1277, 1282 n. 9 (9th Cir.1984) (Bolanos-Hernandez ). We review "whether substantial evidence supports the BIA's determination that an alien has failed to prove a well-founded fear of persecution." Sanchez-Trujillo v. INS, 801 F.2d 1571, 1578 (9th Cir.1986) (Sanchez-Trujillo ). "Under the deferential substantial evidence standard" employed in our circuit, "we may not reverse the BIA simply because we disagree with its evaluation of the facts, but only if we conclude that the BIA's evaluation is not supported by substantial evidence." Diaz-Escobar v. INS, 782 F.2d 1488, 1493 (9th Cir.1986) (Diaz-Escobar ). If "[t]here is substantial evidence in the record to support the conclusion that [the petitioner] failed to establish an objectively reasonable fear or expectation of persecution," the petitioner will have "failed to establish that his fear was well-founded." Id. "All the substantial evidence standard requires is that the BIA's conclusion, based on the evidence presented, be substantially reasonable." Id.

IV

Mrs. De Valle seeks political asylum and withholding of deportation pursuant to 8 U.S.C. Secs. 1158(a) and 1253(h), respectively. To be entitled to asylum under section 1158(a), De Valle must first establish her status as "a refugee within the meaning of [8 U.S.C.] Sec. 1101(a)(42)(A)." 8 U.S.C. Sec. 1158(a). Refugee status is granted to those aliens who demonstrate "a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. Sec. 1101(a)(42)(A). In determining whether the "well-founded fear of persecution" standard has been met, we employ a two-part analysis: we must determine that the BIA's decision regarding whether "(1) the alien has a subjective fear, and (2) [whether] this fear has enough of a[n] [objective] basis that it can be considered well-founded" is based upon substantial evidence. Vilorio-Lopez v. INS, 852 F.2d 1137, 1140 (9th Cir.1988) (Vilorio-Lopez ). "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." Diaz-Escobar, 782 F.2d at 1492; see also Vilorio-Lopez, 852 F.2d at 1140 ("The alien 'must present "specific facts" through objective evidence to prove either past persecution or "good reason" to fear future persecution.' "), quoting Cardoza-Fonseca v. INS, 767 F.2d 1448, 1453 (9th Cir.1985), aff'd, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987). "The petitioner need not show that his well-founded fear is 'more likely than not,' i.e., a 'clear probability.' The showing may be slightly less than such a probability, although it must be grounded in substantial record evidence." Diaz-Escobar, 782 F.2d at 1492 (citation omitted).

An alien's deportation may be withheld pursuant to 8 U.S.C. Sec. 1253(h) if he can show a "clear probability of persecution." Blanco-Lopez v. INS, 858 F.2d 531, 533 (9th Cir.1988). To meet this burden, the alien must show that it is more likely than not that he will be persecuted if he is deported to his native country. Id. However, if the petitioner fails to demonstrate that he has a well-founded fear of persecution required for asylum under section 1158(a), "we will need to proceed no further because a fortiori, [the petitioner] would ... fail[ ] to meet the more stringent standard of clear probability of persecution." Diaz-Escobar, 782 F.2d at 1492. We therefore begin our analysis by reviewing De Valle's asylum claim.

V

In order to qualify for asylum, De Valle must demonstrate that she is a "refugee" within the meaning of 8 U.S.C. Sec. 1101(a)(42)(A). 8 U.S.C. Sec. 1158(a). A refugee is defined as "any person who is outside any country of such person's nationality ... and 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 in a particular social group, or political opinion." 8 U.S.C. Sec. 1101(a)(42)(A); Sanchez-Trujillo, 801 F.2d at 1578. De Valle argues that she possesses a "well-founded fear of persecution" which stems from an imputed political opinion and from her membership in a particular social group. We first address her claim that she has a well-founded fear of persecution based on an imputed political opinion.

A.

De Valle's claim of asylum in fact rests on a doubly imputed political opinion. She claims that her husband will be imputed to have certain political opinions because of his desertion from the military and that she, in turn, will be imputed to hold those opinions because she is his wife. As we observed in Bolanos-Hernandez, 767 F.2d at 1287, asylum under section 1158(a) is generally available only to those aliens whose acts "constitute[ ] an overt manifestation of a political opinion." Id. (emphasis added). "Persecution because of that overt manifestation is persecution because of a political opinion." Id. (emphasis added).

In De Valle's situation, "where the petitioner may not have overtly given any expression to [her] [political] opinions," she must at least demonstrate that there is a significant "relationship between victim and persecutor" and that she engaged in "sufficiently conscious and deliberate" decisions or acts which attributed certain political opinions to her, Desir v. Ilchert, 840 F.2d 723, 728 (9th Cir.1988), or else identify a " 'specific effort aimed at [her] in particular based on [her] political ... beliefs.' " Sanchez-Trujillo, 801 F.2d at 1581. De Valle has not overtly manifested a political opinion, nor has she engaged in conscious or deliberate acts that would express a political opinion to a particular persecutor, nor has she identified an effort aimed particularly at her because of political opinions she purportedly holds. In short, because De Valle relies upon a doubly imputed political opinion in her claim for asylum, she has failed to make the individualized showing, required by the case law, that she will face persecution for holding a political opinion. As the BIA observed:

Even if we take as true that [De Valle's] husband was forced to participate in 2 massacres of perhaps hundreds of...