Cruz-Lopez v. I.N.S.

• Citation: 802 F.2d 1518
• Decision Date: 10 October 1986
• Docket Number: CRUZ-LOPE,P,No. 85-1753,85-1753
• Parties: Marvin O.etitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

Page 1518

802 F.2d 1518

Marvin O. CRUZ-LOPEZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 85-1753.

United States Court of Appeals Fourth Circuit.

Argued March 3, 1986.

Decided Oct. 10, 1986.

Daria Goggins, Student Counsel (Richard A. Boswell, The George Washington University, Nat. Law Center, Immigration Law Clinic, Washington, D.C., on brief), for petitioner.

Thomas W. Hussey, Office of Immigration Litigation, Civil Div., U.S. Dept. of Justice (Richard K. Willard, Asst. Atty. Gen., Millicent Clark, Dawn McPhee, Asst. Director, Michael P. Lindemann, Washington, D.C., on brief), for respondent.

Before WINTER, Chief Judge, and MURNAGHAN and ERVIN, Circuit Judges.

ERVIN, Circuit Judge:

Marvin Cruz-Lopez, an illegal immigrant from El Salvador, has petitioned this court for relief from a Bureau of Immigration Appeals (BIA) determination that he cannot remain in the United States. Cruz-Lopez claims that he deserves a discretionary grant of asylum under sections 101(a)(42)(A) and 208(a) of the Immigration and Naturalization Act of 1952 as amended, (INA), 8 U.S.C. Secs. 1101(a)(42), 1158(a), or the mandatory withholding of deportation under section 243(h) of the INA, 8 U.S.C. Sec. 1253(h). Although we sympathize with Cruz-Lopez's desire not to return to war-torn El Salvador, we believe that the BIA's refusal of relief was proper. ¹

I.

Cruz-Lopez, a well-off, Catholic, El Salvadoran male, now in his early twenties, left his native country in March 1981. He departed at the insistence of his family, after he found a handwritten note purportedly from a guerilla group posted on the front door of his home. In translation the note said, "Join the BPR [a guerilla group] or you will regret it." Cruz-Lopez's initials appeared in the lower right corner of the note.

Such notes are apparently common in El Salvador. Some of Cruz-Lopez's friends and distant relatives have received similar notes and have not been harmed. One close friend was tortured and murdered by guerillas, however, shortly after his family received a similar note. As of this writing, neither Cruz-Lopez nor members of his immediate family have been harmed by any guerilla group or by the government.

Cruz-Lopez was and is politically neutral. Nevertheless, he has been affected by the chaos in his country. His private school was sometimes cancelled because of street fighting, and his school bus was attacked by guerillas. Three distant cousins, some of whose names Cruz-Lopez cannot recall, have been killed, and another distant cousin was raped.

Cruz-Lopez's uncle by marriage, a legal resident of the United States, is a leader of the Oscar Romero Committee, a group which works in the United States to oppose the existing government in El Salvador. Cruz-Lopez has disavowed the political beliefs of the Oscar Romero committee and has spent little time with his uncle during his stay in the United States. Aside from claiming neutrality in El Salvador's civil war, Cruz-Lopez has espoused no personal political philosophy.

Cruz-Lopez was apprehended by the Immigration and Naturalization Service (INS) shortly after his entry into the United States five years ago. An Immigration Judge decided that even after crediting Cruz-Lopez's description of his situation, Cruz-Lopez did not qualify for relief under 8 U.S.C. Secs. 1158(a), 1253(h). In lieu of forced deportation, however, the Immigration Judge gave Cruz-Lopez three months to leave the United States voluntarily. See INA, Sec. 244(e), 8 U.S.C. Sec. 1254(e) (discretion to permit voluntary departure).

On appeal, the BIA agreed with the Immigration Judge's conclusion that Cruz-Lopez did not deserve relief under 8 U.S.C. Secs. 1158(a), 1253(h). The BIA refused to review the grant of a voluntary departure privilege, claiming that it lacked jurisdiction to do so under 8 C.F.R. Sec. 3.1(b)(2) (1985) (no review of voluntary departure grants of at least thirty days). Cruz-Lopez then filed this petition for review. He has remained in the United States pending our disposition.

II.

Cruz-Lopez's first asserted ground for relief is 8 U.S.C. Sec. 1253(h). Under that provision, the government is barred from deporting an alien if his "life or freedom would be threatened [in his native country] ... on account of ... membership in a particular social group, or political opinion." Id. Sec. 1253(h)(1). Even if we assume, without deciding, that Cruz-Lopez is a member of "a particular social group" ² or holds a "political opinion" ³ as intended by the statute, the BIA's denial of relief under section 1253(h) was not improper.

In order to prevail on a mandatory withholding of deportation request under section 1253(h), the alien must offer evidence establishing that "it is more likely than not that [he] ... would be subject to persecution on one of the specified grounds" upon his return. INS v. Stevic, 467 U.S. 407, 429-30, 104 S.Ct. 2489, 2501, 81 L.Ed.2d 321 (1984). The alien must prove a "clear probability of persecution," not merely an understandable fear of persecution. See id. at 425, 104 S.Ct. at 2501.

The Supreme Court has chosen to leave the "clear probability of persecution" test deliberately undefined. Id. at 429, 104 S.Ct. at 2501. This circuit has no relevant precedent, but our sister circuits generally agree that the illegal alien must offer specific facts "that this particular applicant will more likely than not be singled out for persecution." Carvajal-Munoz v. INS, 743 F.2d 562, 573 (7th Cir.1984). Accord Youkhanna v. INS, 749 F.2d 360, 361 (6th Cir.1984). Allegations based only on the general climate of violence in the country are insufficient. In fact, even a specific threat to petitioner may be insufficient, if the threat can be characterized as random, or one which the threatening group lacks the will or ability to carry out. Bolanos-Hernandez v. INS, 767 F.2d 1277, 1285-86 (9th Cir.1985); see also Diaz-Escobar v. INS, 782 F.2d 1488, 1493 (9th Cir.1986) (threatening letter left on petitioner's car windshield insufficient to establish "reasonable expectation of persecution" for relief under sections 1158(a) and 1253(h)).

Cruz-Lopez's evidence fails to establish the clear probability of persecution required for relief under section 1253(h). The type of note received by Cruz-Lopez is widespread in El Salvador, and Cruz-Lopez admits that many friends who received similar notes have remained unharmed. Cruz-Lopez's position is no different from that of many young, urban males "invited" to join guerilla groups. Unfortunately, this country cannot serve as a haven for all of them. See Zededa-Melendez v. INS, 741 F.2d 285, 290 (9th Cir.1984) (deportation upheld for El Salvadoran recruited because of the strategic location of his family's house); Chavez v. INS, 723 F.2d 1431, 1434 (9th Cir.1984) (deportation upheld for El Salvadoran threatened because he had been an armed security guard). See also Diaz-Escobar, 782 F.2d at 1493 (deportation of Guatemalan who received threatening note upheld).

Evidence in addition to the one note, such as continuing threats, violence toward him, threats and violence toward his immediate family, or his special value to the guerillas, might establish a clear probability that the guerillas seriously intend to pursue Cruz-Lopez's recruitment. Cf. Del Valle v. INS, 776 F.2d 1407 (9th Cir.1985) (deportation withheld for El Salvadoran who had been kidnapped and beaten and who was wanted as an informant by a right-wing group); Bolanos-Hernandez, 767 F.2d at 1280, 1284-86 (deportation withheld for former army officer and right-wing party member recruited by guerillas to infiltrate the government whose five friends and brother have been killed). Cruz-Lopez has offered no such evidence, however. He has, therefore, failed to establish a "clear probability," as opposed to a possibility, of persecution required for the mandatory withholding of deportation under section 1253(h).

III.

Cruz-Lopez further argues that the BIA erred in refusing asylum under 8 U.S.C. Sec. 1158(a). Section 1158(a) authorizes discretionary grants of asylum to aliens who qualify as "refugees" under 8 U.S.C. Sec. 1101(a)(42)(A). A "refugee" is an alien who is unwilling or unable to return to his native land "because of persecution or a well-founded fear of persecution on account of ... membership in a particular social group, or political opinion." 8 U.S.C. Sec. 1101(a)(42)(A). ⁴

Given our disposition of the request to withhold deportation, Cruz-Lopez's asylum argument cannot prevail unless the standard for granting asylum is more generous than the standard for withholding deportation. In Stevic, 467 U.S. at 425, 104 S.Ct. at 2498, the Supreme Court assumed, without deciding, that the standards do differ. ⁵ In the wake of Stevic, several of our sister circuits have held that the "well-founded fear" requirement for asylum is more lenient than the "clear probability of persecution" standard for withholding deportation. See, e.g., Guevara Flores v. INS, 786 F.2d 1242, 1249 (5th Cir.1986); Bolanos-Hernandez v. INS, 767 F.2d 1277, 1283 (9th Cir.1985); Carvajal-Munoz v. INS, 743 F.2d 562, 573-75 (7th Cir.1984). The Third Circuit, however, has adhered to its pre-Stevic view that the standards are "for all practical purposes" identical. Sotto v. United States INS, 748 F.2d 832, 836 (3d Cir.1984). The INS stands with the Third Circuit in insisting that the standards "as a practical matter ... converge." Matter of Acosta, Int.Dec.No. 2986, at 5 (BIA March 1, 1985).

Resolution of the case at bar does not require us to choose between competing characterizations of the relationship between withholding deportation under section 1253(h) and granting asylum under section 1158(a). Although the INS maintains that the proper standard governing Cruz-Lopez's asylum claim does "not meaningfully diff[er]" from the standard for withholding deportation, the BIA invoked all the relevant standards in evaluating...