Echeverria-Hernandez v. U.S. I.N.S.

• Decision Date: 14 January 1991
• Docket Number: No. 89-70236,P,ECHEVERRIA-HERNANDE,89-70236
• Parties: Blanca Rosaetitioner, v. U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 688

923 F.2d 688

Blanca Rosa ECHEVERRIA-HERNANDEZ, Petitioner, v. U.S. IMMIGRATION AND NATURALIZATION SERVICE, Respondent.

No. 89-70236.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Oct. 4, 1990.

Decided Jan. 14, 1991.

Linton Joaquin, Central American Refugee Center, Los Angeles, Cal., for petitioner.

Mary A. Sedgwick, Asst. U.S. Atty., Los Angeles, Cal., for respondent.

Appeal from a Decision of the Board of Immigration Appeals.

Before WALLACE, ALARCON and POOLE, Circuit Judges.

WALLACE, Circuit Judge:

Echeverria-Hernandez petitions for review of the decision of the Board of Immigration Appeals (Board) denying her request for asylum and withholding of deportation. The Board had jurisdiction pursuant to 8 C.F.R. Secs. 3.1(b)(2), 242.21 (1990). We have jurisdiction over this timely filed petition pursuant to 8 U.S.C. Sec. 1105a. We deny the petition.

I

Echeverria-Hernandez is a native and citizen of El Salvador. She last entered the United States on January 29, 1985, and, on June 30, 1985, she was served with an order to show cause, alleging her deportability. One month later, she appeared at a deportation hearing with counsel, refused to answer most questions regarding her deportability, but admitted she was not a citizen or national of the United States. The immigration judge denied her application for asylum and withholding of deportation. Echeverria-Hernandez timely appealed to the Board, which dismissed the appeal.

Echeverria-Hernandez is not a member of any political organization. She has not served in either the armed forces or its armed opposition. She is politically neutral. Echeverria-Hernandez testified that in 1979, her cousin, who was a guerrilla, was killed by persons acting on behalf of the Salvadoran government. According to Echeverria-Hernandez's testimony, her cousin's mother was present at the killing, but was unharmed. Echeverria-Hernandez also testified to the deaths of her brother in 1979 and her father in 1985. Both men were killed by unknown persons for unknown reasons.

Echeverria-Hernandez has never been contacted or threatened by either side in the Salvadoran conflict. The immigration judge found that Echeverria-Hernandez's claimed fear was based primarily on the general conditions of violence in El Salvador.

II

Section 243(h) of the Immigration and Nationality Act (Act), 8 U.S.C. Sec. 1253(h), requires the Attorney General to withhold deportation "if the Attorney General determines that the alien's life or freedom would be threatened ... on account of race, religion, nationality, membership in a particular social group, or political opinion." Section 243(h) is a mandatory provision which entitles the alien to a withholding of deportation upon proof of a clear probability of persecution. Diaz-Escobar v. INS, 782 F.2d 1488, 1491 (9th Cir.1986) (Diaz-Escobar ). We review the Board's decision to grant or deny the withholding of deportation for substantial evidence. Id. at 1491-92.

Section 208(a) of the Act, 8 U.S.C. Sec. 1158(a), gives the Attorney General discretion to grant political asylum if the Attorney General determines the alien to be a refugee within the meaning of section 101(a)(42)(A) of the Act, 8 U.S.C. Sec. 1101(a)(42)(A). Like section 243(h), section 101(a)(42)(A) requires proof 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). To establish asylum eligibility, however, the alien need not meet the clear probability test. Diaz-Escobar, 782 F.2d at 1491. Rather, the alien need only prove a well-founded fear of persecution. De Valle v. INS, 901 F.2d 787, 790 (9th Cir.1990). A well-founded fear must be both subjectively and objectively reasonable. See id. The subjective component requires a showing that the alien's fear is genuine. Id. The objective component requires a showing, by credible, direct, and specific evidence in the record, of facts that would support a reasonable fear of persecution. Id. We review the Board's denial of asylum eligibility for substantial evidence. Id.

Under each deferential standard, we may not reverse the Board simply because we disagree with its evaluation of the facts, but only if we conclude that the Board's evaluation is not supported by substantial evidence. See id. This standard requires only that the Board's conclusion, based on the evidence presented, is substantially reasonable. See id.

The Board found that Echeverria-Hernandez failed to meet her burden of proof under either the clear probability or well- founded fear standard. We will first review this finding under the more generous well-founded fear standard. If substantial evidence supports the Board's finding as it relates to well-founded fear, we need not separately review it in light of the more stringent clear probability standard; Echeverria-Hernandez's failure as to the former would necessarily demonstrate her failure as to the latter. See id.

III

Echeverria-Hernandez points to the deaths of her cousin, father, and brother in support of her claim of well-founded fear. Accepting this fear as subjectively genuine, we analyze it for objective reasonableness. In Ramirez Rivas v. INS, 899 F.2d 864, 868-72 (9th Cir.1990) (Ramirez Rivas ), we held that a claim for withholding of deportation may be based on acts of political persecution endured by family members. Ramirez Rivas proved that members of her family had been persecuted for their political opinions. Id. at 868. She also proved that other members of her family had been persecuted, notwithstanding their lack of a publicly articulated political belief, because one had been imputed to them. Id. Hence, we held that Ramirez Rivas had demonstrated a clear probability of persecution, despite her own political neutrality. Id. at 866, 873.

Echeverria-Hernandez's cousin was a guerrilla. Echeverria-Hernandez testified that her cousin was killed by persons acting on behalf of the government of El Salvador. Echeverria-Hernandez contends this killing sustains her claim of a well-founded fear. She does not allege any particular factors that would relate this risk specifically to her. Rather, her claim seems to rest on the notion that the death of her cousin gives rise to asylum eligibility for all members of the cousin's extended family.

This claim lacks factual support. The mother of Echeverria-Hernandez's cousin was present when her daughter was killed, yet was unharmed. Echeverria-Hernandez herself lived in El Salvador for more than five years after her cousin was killed, free from harassment or even contact by either side in the conflict, a fact which was properly considered by the Board in determining the likelihood of persecution. See Rodriguez-Rivera v. INS, 848 F.2d 998, 1006 (9th Cir.1988). Thus, Echeverria-Hernandez's claim is unsubstantiated.

Moreover, her claim is legally overbroad. The death of one family member does not trigger a sweeping entitlement to asylum eligibility for all members of her extended family. While Ramirez Rivas holds that familial political persecution may support a claim for withholding of deportation, this is not a broad proposition of general applicability. Ramirez Rivas involved a family engaged in an extraordinary level of political activity and subject to repeated acts of political persecution. See Ramirez Rivas, 899 F.2d at 865-66. Ramirez Rivas turns on these facts, which are not present here. Echeverria-Hernandez's cousin was killed in 1979, after which Echeverria-Hernandez claims no further acts of political persecution to her or her family. The death of her cousin simply does not justify an objective well-founded fear to Echeverria-Hernandez.

Echeverria-Hernandez offered no proof that the killing of her father or brother was politically motivated. Both were killed by unknown persons for unknown reasons. Hence, there is no reason to conclude from their deaths that Echeverria-Hernandez is now threatened with political persecution. It is not enough that Echeverria-Hernandez or her family has been subjected to general conditions of political unrest. See Sanchez-Trujillo v. INS, 801 F.2d 1571, 1577 (9th Cir.1986). Without proof of political motive, the killings of her father and brother cannot form the basis for a claim of well-founded fear of political persecution.

The Board found that Echeverria-Hernandez failed to prove a well-founded fear of persecution. This finding is supported by substantial evidence, and therefore, must be affirmed. We need not separately consider whether Echeverria-Hernandez has proved a clear probability of persecution; her failure as to the well-founded fear standard necessarily demonstrates her failure as to the clear probability standard. We affirm the Board's denial of political asylum and withholding of deportation.

IV

Before the Board and again before this court, Echeverria-Hernandez has urged the applicability of international law to the facts of this case. She raises a question of first impression in this court, although one which has been considered elsewhere. See, e.g., Garcia-Mir v. Meese, 788 F.2d 1446 (11th Cir.), cert. denied, 479 U.S. 889, 107 S.Ct. 289, 93 L.Ed.2d 263 (1986); American Baptist Churches in the United States v. Meese, 712 F.Supp. 756 (N.D.Cal.1989); cf. United States v. Aguilar, 883 F.2d 662 (9th Cir.1989) (Aguilar ). The Board rejected Echeverria-Hernandez's contention. As this ruling involves a question of law, we review it de novo. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

Echeverria-Hernandez contends that The Paquete Habana, 175 U.S. 677, 20 S.Ct. 290, 44 L.Ed. 320 (1900), provides license for the judicial adoption of international immigration norms. In The Paquete Habana, the Court stated:

International law is part of our law, and must be ascertained and administered by the courts of...