Cuadras v. U.S. I.N.S.

• Decision Date: 03 August 1990
• Docket Number: No. 88-7478,88-7478
• Citation: 910 F.2d 567
• Parties: Oscar Alberto Canas CUADRAS, Petitioner, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 567

910 F.2d 567

Oscar Alberto Canas CUADRAS, Petitioner, v. UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 88-7478.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 15, 1989.

Decided Aug. 3, 1990.

Kathleen A. McKinley, Thelen, Marrin, Johnson & Bridges, San Francisco, Cal., for petitioner.

Ellen Sue Shapiro and Alison R. Drucker, Office of Immigration Litigation, Civ. Div., Dept. of Justice, Washington, D.C., for respondent.

Petition to Review a Decision of the Immigration and Naturalization Service.

Before HALL, BRUNETTI and NOONAN, Circuit Judges.

BRUNETTI, Circuit Judge:

Oscar Alberto Canas Cuadras ("Cuadras") petitions for review of the Board of Immigration Appeals ("BIA") decision dismissing his appeal from the Immigration Judge ("IJ") decision that ordered Cuadras's deportation to El Salvador and denied Cuadras's applications for voluntary departure, asylum, and withholding of deportation. We affirm.

Cuadras is a 28 year-old native and citizen of El Salvador who entered the United States without inspection on April 30, 1983.

On June 28, 1983, Cuadras was served with an order to show cause why he should not be deported to El Salvador. Cuadras hired counsel and obtained a continuation of his deportation hearing in order to file an asylum application.

Cuadras submitted his asylum application on November 17, 1983. It stated that Cuadras feared persecution primarily for the following reasons: (1) "Especially because of my age, I [Cuadras] am subject to suspicion and forceable recruitment by both sides"; (2) "A cousin belongs to a guerrilla organization. He lives in the same town and has one last name [the same] as mine. I am in danger from the authorities because I am related to him" and (3) "[B]ecause I am a young man, I am especially subject to suspicion and persecution. I only wanted to work on my farm in peace, not [to] have to fight. Also the area I lived in is particularly dangerous". The application also stated that, in one instance, the guerrillas tried to persuade Cuadras to join them, telling him that he could earn more money as a guerrilla than as a farmer and giving him a rifle to hold, saying, "[S]ee, it doesn't even [weigh] anything."

After reviewing this application, the State Department's Bureau of Human Rights and Humanitarian Affairs (the "BHRHA") forwarded a letter expressing the opinion that Cuadras did not qualify for asylum because he had not demonstrated a well-founded fear of persecution in El Salvador.

At the September 20, 1984, deportation hearing before Immigration Judge William F. Nail, Jr., Cuadras conceded deportability. Cuadras then filed a Motion to Remand his application to the BHRHA and a Motion to Compel Attendance of State Department Witnesses and/or Response to interrogatories. The IJ denied both motions.

Cuadras testified that he and his family were farmers. They farmed land near an area controlled by guerrillas. Cuadras stated that the guerrillas did not want people to produce crops. The guerrillas threatened him, his father, and his brother if they continued to farm in that area. Once, the guerrillas found Cuadras watering crops by machine and shot the machine until it would no longer work. The guerrillas also destroyed the Cuadras' crops when they neared harvest. However, Cuadras presented no evidence that he was ever physically abused, harmed, arrested or incarcerated in El Salvador.

Finally, Cuadras and his family decided to give up farming. Cuadras's father abandoned the area and did only a little subsistence farming close to their village. His brother went into construction. The guerrillas stopped harassing them, but threatened to harm Cuadras's father and brother if they tried to begin farming again.

During 1981 and 1982, Cuadras served as military commissioner in his district. In this capacity, Cuadras reported any problems, such as someone having been killed or injured, to the military. Cuadras believes the guerrillas might kill him because of this prior connection to the military.

The guerrillas also tried to recruit Cuadras, and successfully recruited Cuadras's cousin. Cuadras is afraid he will be persecuted by the government because of his cousin's involvement. Cuadras is also afraid he will be mistaken by the military for his cousin, who shares Cuadras's last name, and be killed.

In addition, because of fighting in the area where Cuadras lived, innocent civilians were often killed or injured. For example, his aunt was shot in the foot while In a decision dated September 20, 1984, the IJ found Cuadras deportable under section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. Sec. 1251(a)(2), and denied his applications for asylum and withholding of deportation to El Salvador under sections 208(a) and 243(h) of the Act, 8 U.S.C. Secs. 1158(a) and 1253(h), and for voluntary departure under section 244(e) of the Act, 8 U.S.C. Sec. 1254(e). The IJ did not make an adverse credibility finding regarding any of Cuadras's testimony. However, the IJ found no evidence of any incident that would indicate persecution because of race, religion, political opinion, or membership in any group.

she was out gathering firewood. For all of the above reasons, Cuadras left El Salvador on December 12, 1982.

Cuadras appealed to the BIA. In an order dated June 6, 1988 the BIA dismissed the appeal. A petition for review was timely filed with this Court on November 23, 1988.

DISCUSSION

I. Eligibility for Asylum.

To establish eligibility for asylum, an alien must demonstrate that he is unwilling to return to his country due to "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).

In Cardoza-Fonseca, this court defined "well-founded fear." There is both an objective component ("well-founded") and subjective component ("fear") to the statutory test. Cardoza-Fonseca v. INS, 767 F.2d 1448, 1452-53 (9th Cir.1985), aff'd, 480 U.S. 421, 107 S.Ct. 1207, 94 L.Ed.2d 434 (1987); see also Blanco-Comarribas v. INS, 830 F.2d 1039, 1042 (9th Cir.1987).

In dismissing Cuadras's appeal, the BIA did not use the language of this court's two-pronged formulation of the well-founded fear test. Instead, the BIA used the "reasonable person" test set forth by the Fifth Circuit in Guevara-Flores v. INS, 786 F.2d 1242 (5th Cir.1986), cert. denied, 480 U.S. 930, 107 S.Ct. 1565, 94 L.Ed.2d 757 (1987), and adopted by the BIA in Matter of Mogharrabi, Int.Dec. 3028 (BIA, June 12, 1987). However, the use of "magic words" is not the focus of our inquiry; we look at the analysis actually applied by the BIA. Vides-Vides v. INS, 783 F.2d 1463, 1468 (9th Cir.1986). The Mogharrabi "reasonable person" analysis is not inconsistent with the two-pronged test created by Cardoza-Fonseca. Both Guevara-Flores and Mogharrabi discuss both subjective fear and an objective basis as components of their "reasonable person" test for purposes of asylum claims. ¹ Thus, the "reasonable person" test used by the BIA in this case includes both the subjective and objective inquiries required by Cardoza-Fonseca.

To satisfy the subjective prong of the test, an alien must prove that his fear is "subjectively genuine." Blanco-Comarribas, 830 F.2d at 1042 (quotation omitted); Sanchez-Trujillo v. INS, 801 F.2d 1571, 1579 (9th Cir.1986). This prong of the test is satisfied by an alien's credible testimony stating a genuine fear of persecution. Blanco-Comarribas, 830 F.2d at 1042. Because the IJ did not question Cuadras's credibility, this prong of the test is satisfied.

To satisfy the objective prong of the test, an alien must show that his fear has enough of a basis in reality that it can be considered well-founded. Id. Mere irrational fear is not enough. Id. There must be a valid reason for the fear. Id.; see also Bolanos-Hernandez v. INS, 767 F.2d 1277, 1283 (9th Cir.1984).

The record contains substantial evidence that undercuts Cuadras's claim that he fears persecution by the government. Cuadras has worked for the government and has never been threatened or harmed by any agent of the government. The possibility of confusion with his cousin because of the similarity of names is too speculative to give rise to a well-founded fear of persecution. The possibility that he will be persecuted because of his familial relationship to a guerrilla is also entirely speculative, especially given Cuadras's past government service.

Cuadras has also failed to show an objective basis for his fear of persecution from any nongovernmental group. Cuadras has not shown that any guerrilla threats were made because of any political view or characteristic enumerated in the statute. Cuadras, like his father and brother, wished to continue farming. Once Cuadras's father and brother ceased farming in the disputed area they were not bothered, so it appears that Cuadras could similarly avoid harassment. ² The guerrillas never indicated any knowledge that Cuadras holds any particular political opinion. Cuadras never expressed political neutrality to the guerrillas.

Cuadras insists that the force used against him to prevent him from working at his farm was political persecution. Cuadras argues that his attempts to continue working were an expression of political neutrality for which he was persecuted by the guerrillas. However, there are many reasons why guerrillas might wish to stop farmers from farming in a particular area. Similarly, there are many reasons why a farmer might wish to continue farming (for example, economic gain), even if he sympathized with the guerrillas. Cuadras has not proven that the harassment was based on his political views, or that the guerrillas attributed any political views to him. In fact, the evidence is to the contrary. To accept Cuadras's broad definition of political persecution would be to hold that anyone who is...