Cigaran v. Heston

• Decision Date: 30 October 1998
• Docket Number: No. 98-1861,98-1861
• Citation: 159 F.3d 355
• Parties: Jose CIGARAN and Lucia Requeno-de Cigaran, Petitioners, v. Michael HESTON, District Director, Immigration and Naturalization Service, and Janet Reno, Attorney General of the United States of America, Respondents.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 355

159 F.3d 355

Jose CIGARAN and Lucia Requeno-de Cigaran, Petitioners, v. Michael HESTON, District Director, Immigration and Naturalization Service, and Janet Reno, Attorney General of the United States of America Respondents.

No. 98-1861.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 22, 1998.

Decided Oct. 30, 1998.

Karl W. Dickhaus, St. Louis, Missouri, argued, for Appellant.

Thankful T. Vanderstar, Washington, DC, argued (Frank W. Hunger, William J. Howard, Washington, DC, on the brief), for Appellee.

Before HANSEN, BRIGHT, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Jose Cigaran and Lucia Requeno-de Cigaran, his wife, are natives of El Salvador. During his service in the El Salvadoran military and national guard, Mr. Cigaran became acquainted with the activities of a military unit known as Section II, members of which took opponents of the government from their homes for interrogation and, sometimes, "elimination." Due in part to his disapproval of these actions, Mr. Cigaran left the military and took a position as a security guard at the University of Central America in San Salvador, an institution that was run by Jesuits.

During the course of his employment at the university, Mr. Cigaran encountered Section II members on three separate occasions. On the first occasion, Section II members who knew Mr. Cigaran from his national guard days attempted to enter the campus, but Mr. Cigaran refused to allow them to do so. They accused him of leftist sympathies and threatened that he would disappear if he did not help them. Approximately two months later they returned, threatening that Mr. Cigaran would die if he did not cooperate. He refused them again. Shortly after this incident, six Jesuit priests, their housekeeper, and her daughter were all brutally murdered at the university. The Section II members returned days later, again accusing Mr. Cigaran of leftist sympathies and threatening him. One week later, Mr. Cigaran quit his job and repaired to his parents' home in Lourdes, where he stayed for nearly a year. He and his wife then fled to the United States through Mexico, entering without inspection in 1991.

Mr. Cigaran applied for political asylum, and his wife joined in his application, relying on him as principal petitioner. The immigration judge denied the application. The Board of Immigration Appeals (BIA) dismissed Mr. Cigaran's subsequent appeal, holding that he had not suffered past persecution and did not have a well-founded fear of future persecution, and was therefore not eligible for asylum. We affirm the decision of the BIA.

I.

An alien is eligible for asylum if he or she is outside his or her own country and "is unable ... to avail himself or herself of the protection of 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." See 8 U.S.C. § 1101(a)(42)(A). In the usual case, the critical inquiry is whether the applicant has a well-founded fear of future persecution upon return to his or her country. To establish such a fear, an applicant must demonstrate a fear that is both subjectively genuine and objectively reasonable. See, e.g., Immigration and Naturalization Service v. Cardoza-Fonseca, 480 U.S. 421, 430-31, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987), and Hamzehi v. Immigration and Naturalization Service, 64 F.3d 1240, 1242 (8th Cir.1995); see also 8 C.F.R. § 208.13(b)(2).

The applicant is entitled to a presumption of a well-founded fear of future persecution if past persecution is established, and the burden then shifts to the Immigration and Naturalization Service to show by a preponderance of the evidence that "conditions in the applicant's country ... have changed to such an extent that the applicant no longer has a well-founded fear of being persecuted if he or she were to return." See 8 C.F.R. § 208.13(b)(1)(i). Even if the INS carries this burden, "humanitarian asylum" may be granted based on past persecution alone if that persecution was particularly atrocious. See, e.g., Asani v. Immigration and Naturalization Service, 154 F.3d 719, 722 (7th Cir.1998), and Matter of Chen, 20 I. and N. Dec. 16, 19 (B.I.A.1989); see also 8 C.F.R. § 208.13(b)(1)(ii).

II.

Mr. Cigaran first contends that the BIA should have considered the cumulative impact of the relevant incidents in the record to determine whether they rose to the level of persecution, rather than considering them separately. See, e.g., Singh v. Immigration and Naturalization Service, 134 F.3d 962, 967 (9th Cir.1998). If the BIA had done so, Mr. Cigaran argues, it would have to have made a finding of past persecution, which would then have created a presumption of a well-founded fear of future persecution, thereby shifting the burden to the INS to prove by a preponderance of the evidence that Mr. Cigaran's fear was not well-founded. Mr. Cigaran also contends that the INS did not meet this burden.

Even if we assume that the law requires the kind of analysis that Mr. Cigaran argues for, and that such an analysis...