Rojas v. I.N.S.

Citation937 F.2d 186
Decision Date02 August 1991
Docket NumberNos. 90-4694,90-4724,90-4757,ALVARADO-GARCIA and J,s. 90-4694
PartiesCarlos Jose Murillo ROJAS, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. Juan Antonio CHANG, Petitioner, v. IMMIGRATION & NATURALIZATION SERVICE, Respondent. Juana Rosaorge Ramon Duarte-Montoya, Petitioners, v. BOARD OF IMMIGRATION APPEALS R. Kevin McHugh, Immigration Judge Immigration and Naturalization Service, John B.Z. Caplinger, District Director, Respondents.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Donald J. Risser, New Orleans, La., for petitioner in Nos. 90-4694, 90-4724.

Richard Thornburgh, Atty. Gen., U.S. Dept. of Justice, William J. Howard, Robert Kendall, Jr., Asst. Dir., Richard M. Evans, Robert L. Bombough, Dir., Office of Immigration Lit., Francesca Isgro, David J. Kline, Washington, D.C., John B.Z. Caplinger, Dist. Dir., INS, New Orleans, La., for I.N.S.

Romualdo Gonzalez, Murray, Braden, Gonzalez & Richardson, New Orleans, La., for petitioners in No. 90-4757.

Petitions for Review of Orders of the Board of Immigration Appeals.

Before REYNALDO G. GARZA, HIGGINBOTHAM and DAVIS, Circuit Judges.

PER CURIAM:

The above three cases were consolidated for oral argument. Each Petitioner appeals from an order by the Board of Immigration Appeals denying them asylum and withholding of deportation. Because of the similarity in the law applied, one opinion shall address all three cases (and all four Petitioners). Finding the Board of Immigration Appeals did not abuse its discretion in denying these Petitioners' requests for asylum and withholding of deportation, we affirm.

I. The Facts.

Facts surrounding Rojas

Carlos Jose Murillo Rojas, a twenty-eight year old Nicaraguan citizen, concedes his deportability but seeks asylum. The Immigration and Naturalization Service ("INS") judge found, and the record fully supports, the facts that follow.

Petitioner claims asylum because he fears that if he returns to Nicaragua, he will be persecuted by the Sandinistas because he worked intermittently as a Red Cross volunteer in Nicaragua between 1979 and 1987. He says his life was threatened many times, but he has never been detained, interrogated, convicted, sentenced or imprisoned. As a Red Cross volunteer, he was available for first aid service for two weekends per month. He actually served 144 days, including 60 days as a lifeguard and 84 days on emergency ambulance duty.

As a volunteer, he took an oath of political neutrality. On two occasions, the Sandinista government denied Rojas and other Red Cross workers emergency access to injured demonstrators and threatened the volunteers with jail if they persisted.

He served in the Nicaraguan military for two years. Thereafter, allegedly his Red Cross service became known to the Sandinista government and an attempt was made to conscript him again. However, others were also conscripted a second time. He was threatened with imprisonment if he did not rejoin the military. Nevertheless, Nicaraguan authorities granted him a passport. The INS judge therefore denied Rojas' request for asylum and withholding.

With the burden upon Rojas, the Board found no basis in the record to support his contention that he had suffered past persecution sufficient to merit a grant of asylum. The Board also took administrative notice of the fact that the Sandinistas no longer control the Nicaraguan government and therefore Rojas has no reason to fear the return to his country now that a new government is in place. Failing to meet the burden for asylum, he would also fail the stricter clear probability standard required for withholding of deportation. Rojas appeals to this court for review of the above mentioned board actions and for an opportunity to reopen the record to introduce new evidence.

Facts surrounding Chang

Juan Antonio Chang is a native and citizen of Nicaragua. He entered the United States illegally in 1984. In February 1987, the INS ordered Chang to show cause why he should not be deported for entering the United States without inspection. At his deportation hearing, Chang admitted that he was deportable, but he asked for a continuance to apply for asylum and withholding of deportation. See 8 U.S.C. Secs. 1158 and 1253(h). The Immigration Judge granted a continuance.

In his application for asylum and withholding of deportation, Chang claimed that he was "deemed an enemy of the Revolution" for refusing to serve in the Sandanista militia. Chang testified at his deportation hearing that he was arrested, beaten and tortured for refusing to perform "vigilance duty," i.e., night patrol in his neighborhood. Chang further testified that all citizens of Nicaragua were expected to perform vigilance duty, and those who refused were subjected to the same treatment Chang received.

After his release from jail, Chang was fired from his job, and the Sandanista Defense Committee refused to issue him a card, a prerequisite to obtaining other employment. Chang remained in his home town of Corinto for two months after being fired, but he felt threatened. Chang fled to Managua, where he stayed with a cousin for seven months. Chang fled to the United States after obtaining a passport from his cousin.

The Immigration Judge denied Chang's application for asylum and withholding of deportation but granted Chang the right to depart from the United States voluntarily. The Immigration Judge found that Chang did not endure "persecution per se" and that Chang did not allege any specific facts showing that he would be persecuted on his return to Nicaragua. The judge concluded:

[I]t appears that [Chang] may have overreacted or did in fact overreact when he fled to his cousin's house and also fled to America.... [T]here is no justification to think that [Chang] would be persecuted nor would a reasonable person in his shoes fear persecution should he return to Nicaragua based upon the testimony that has been given in court and that furnished by the record of the proceedings.

On appeal, the Board of Immigration Appeals ("BIA" or "Board") affirmed, finding that Chang's fear of persecution was not related to one of the five grounds enumerated in Sec. 208(a) of the Immigration and Nationality Act: race, religion, nationality, membership in a particular social group or political opinion. See 8 U.S.C. Sec. 1101(a)(42). The BIA also took administrative notice that the Sandanistas no longer control Nicaragua's government after national elections held last year. Finally, the BIA denied Chang's asylum application on discretionary grounds. Assuming for argument's sake that Chang had been persecuted or had developed a well-founded fear of persecution, the BIA said it could not conclude that humanitarian considerations compel a grant of asylum based on past persecution. Chang appeals to this court.

Facts surrounding Alvarado-Garcia and Duarte-Montoya

Juana Rosa Alvarado-Garcia and Jorge Ramon Duarte-Montoya, common law wife and husband, are natives and citizens of Nicaragua. They entered the United States illegally in 1984. On the same day, the INS ordered them to show cause why they should not be deported. Alvarado-Garcia and Duarte-Montoya both requested asylum, withholding of deportation and voluntary departure.

Alvarado-Garcia claimed that if she returned to Nicaragua, she would be persecuted by the Sandanistas. Her brother worked for a steamship company owned by former President Somoza, and her daughter, a secretary to the board of directors of a labor union, had refused to turn over union files to the Sandanistas. Alvarado-Garcia's daughter left Nicaragua and was granted asylum in the United States. After that, the Sandanistas asked Alvarado-Garcia to hold a meeting of the Sandanista's neighborhood defense committee in her home. Alvarado-Garcia refused, and the Sandanistas cut off her food ration card.

Duarte-Montoya claimed that he would be persecuted by the Sandanistas if he returned to Nicaragua because various members of his family were involved in activities against the Sandanista government. Duarte-Montoya was twice interrogated at length about his brother, a member of an anti-Sandanista organization called "ORDEN." His brother has since been granted asylum in the United States. Duarte-Montoya testified that the...

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