In re C-a-L-
| Decision Date | 21 February 1997 |
| Docket Number | Interim Decision No. 3305. |
| Parties | In re C-A-L-, Respondent. |
| Court | U.S. DOJ Board of Immigration Appeals |
The respondent's appeal from an Immigration Judge's decision dated October 13, 1995, finding him deportable as charged, denying his applications for asylum and withholding of deportation under sections 208 and 243(h), of the Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 1253(h) (1994), respectively, but granting him voluntary departure, will be dismissed.
The respondent is a 27-year-old male, native and citizen of Guatemala, who entered the United States without inspection on December 15, 1991. The respondent was a soldier in the Guatemalan Army from November 1, 1986, to April 30, 1989. He was trained as an artillery specialist.
The respondent testified that, as a soldier, he was sent on separate occasions into the mountains to combat guerrilla forces. He was involved in various confrontations in which several soldiers and guerrillas were killed. On March 15, 1989, the respondent and his unit were leaving a conflict area in the mountains when their convoy of trucks was ambushed by guerrillas. Many soldiers were wounded and killed in this incident.
In addition, as a result of the ambush, certain military files fell into the hands of the guerrillas. These files contained personal information about five soldiers who would be discharged in the Spring of 1989, including their names, civilian addresses, and military experience. The respondent's file was among this lot.
The respondent was discharged as planned and went to live with his father. In September 1989, the respondent came across a friend who was one of the four soldiers discharged from the army with him. This friend informed the respondent that he had received a note from the guerrillas requesting that he and the other four discharged soldiers present themselves to the guerrillas.
At the time, the respondent had joined a political organization and did not want to get involved with the guerrillas. The respondent knew the guerrillas had personal information on him. Fearing the guerrillas would harm him, he moved to a different area on September 30, 1989.
The respondent returned for a brief visit to see his father in December 1989. At this time he had another discussion with his friend, who told the respondent that he had received a second note from the guerrillas. His friend stated that the guerrillas were looking for both of them and that their lives were in danger. In January 1990, the respondent moved away to yet another location. In December 1990, the respondent learned from his father that his friend had been killed by the guerrillas.
Fearing that he was not safe anywhere in Guatemala, the respondent went to Belize in January 1991. When his tourist visa had expired in April 1991, he returned to see his father. The respondent's father had received notes from the guerrillas asking for the respondent's whereabouts. Therefore, the respondent went back to Belize within the same month.
The respondent's father continued receiving notes through October 1991, when the respondent returned one last time to see his father before leaving for Mexico on his way to the United States. Prior to his asylum hearing, the respondent had communicated with his father, who told him that the guerrillas were still looking for him at the time.
The Immigration Judge questioned the respondent's testimony about the guerrillas' motives in seeking to harm the respondent on account of his service in the Guatemalan Army. The Immigration Judge noted that although the respondent tried to escape from the guerrillas by leaving his home town he moved to an area where he knew from his military experience that the guerrillas were active. The Immigration Judge stated that it was unreasonable for the respondent to move there to seek safety from the guerrillas knowing that they operated in that region.
The Immigration Judge found that the respondent's move to an area occupied by the guerrillas and his ability to survive for a year without incident undermined his claim that it was fear of the guerrillas that led him to move there. If the respondent were truly trying to avoid the guerrillas, it would be more likely that he would move to a region known to have little guerrilla presence. The Immigration Judge held that the respondent did not demonstrate past persecution or a reasonable possibility of future persecution and, therefore, did not meet the definition of "refugee" as provided in section 101(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A) (1994). The respondent appeals from this decision.
The respondent bases his application for asylum on a well-founded fear of future persecution by the guerrillas in his country due to his past service in the Guatemalan Army and his failure to join the guerrillas' efforts. On appeal, the respondent argues that the evidence in the record compels a finding that the guerrillas would persecute him on account of his political opinion and past membership in the military and not solely because they were trying to obtain information from him or impress him into their service. The respondent argues that the Immigration Judge erred by failing to find that he had a well-founded fear of persecution if he returned to Guatemala.
The burden of proof is upon an asylum applicant to establish that a "reasonable person" in his circumstances would fear persecution upon return to his native country. Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987). In addition, to be eligible for asylum, the applicant must establish that his well-founded fear of persecution is "on account of" one of the five grounds specified in the Act, here, his political opinion or his membership in a particular social group.
In the present case, the respondent claims that he fears returning to Guatemala because the guerrillas have targeted him as a former soldier. He distinguishes himself from the majority of the soldiers by indicating that his personal file fell into the hands of the guerrillas after an ambush in the mountain region of Guatemala. With this file, he argues, the guerrillas know what experience he has had in the army and can locate him through his civilian addresses on record.
Even accepting this as true, the respondent has failed to submit adequate evidence from which we could reasonably surmise that the guerrillas' interest in him relates to his imputed political opinion. Instead, the record demonstrates that the guerrillas' interest in the respondent was not "on account of" any ground protected in section 101(a)(42)(A) of the Act. The respondent himself testified that the reasons the guerrillas had for contacting him were to obtain information about the army troops and their actions against the guerrilla groups, and to attempt to recruit him due to his expertise as an artillery specialist. Without more, we are unable to discern that the guerrillas sought the respondent for any purpose except those he described. We therefore find that the respondent has not established facts on which a reasonable person would fear that danger arises on account of his race, religion, nationality, membership in a particular social group, or political opinion. INS v. Elias-Zacarias, 502 U.S. 478 (1992); INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); Matter of S-P-, 21 I&N Dec. 486 (BIA 1996). For this reason, the respondent's application for asylum must be denied.
VI. COUNTRY-WIDE PERSECUTION
The respondent's asylum claim must also be denied because he has not provided any convincing evidence to suggest that his fear of persecution would exist throughout Guatemala. This Board has found that an alien seeking to meet the definition of a refugee must do more than show a well-founded fear of persecution in a particular place within a country. He must show that the threat of persecution exists for him country-wide. Matter of R-, 20 I&N Dec. 621 (BIA 1992); Matter of Acosta, 19 I&N Dec. 211 (BIA 1985), modified on other grounds, Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987).
The Department of State country conditions report on Guatemala states that the numbers of guerrillas have declined through the years, the guerrillas are concentrated in remote areas with large Indian populations not easily accessible to government control, and the threat to the general population has decreased. Bureau of Democracy, Human Rights, and Labor, U.S. Dep't of State, Guatemala-Profile of Asylum Claims & Country Conditions (Aug. 1995). In addition, given the poor infrastructure of the various guerrilla groups, most low-profile victims of localized harassment by the guerrillas can relocate away from the area where they experienced problems,...
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