In re a-E-M-

• Decision Date: 20 February 1998
• Docket Number: Interim Decision No. 3338.
• Citation: 21 I&N Dec. 1157
• Parties: In re A-E-M-, Respondent.
• Court: U.S. DOJ Board of Immigration Appeals

21 I&N Dec. 1157

In re A-E-M-, Respondent.

Interim Decision No. 3338.

Board of Immigration Appeals.

Decided February 20, 1998.

(1) The reasonableness of an alien's fear of persecution is reduced when his family remains in his native country unharmed for a long period of time after his departure.

(2) Where evidence from the United States Department of State indicates that country conditions have changed after an alien's departure from his native country and that the Peruvian Government has reduced the Shining Path's ability to carry out persecutory acts, the alien failed to establish a well-founded fear of persecution in Peru.

(3) An alien who failed to rebut evidence from the United States Department of State indicating that the Shining Path operates in only a few areas of Peru did not establish a well-founded fear of country-wide persecution in that country.

FOR RESPONDENTS: Donald L. Schlemmer, Esquire, Washington, D.C.

BEFORE: Board En Banc: DUNNE, Vice Chairman, VACCA, HEILMAN, HOLMES, HURWITZ, VILLAGELIU, FILPPU, COLE, MATHON, and JONES, Board Members. Dissenting Opinions: SCHMIDT, Chairman, joined by GUENDELSBERGER, Board Member; ROSENBERG, Board Member.

HURWITZ, Board Member.

In a decision dated March 18, 1996, an Immigration Judge found the respondents deportable as charged and denied their applications for asylum under section 208(a) of the Immigration and Nationality Act, 8 U.S.C. § 1158(a) (1994), and withholding of deportation under section 243(h) of the Act, 8 U.S.C. § 1253(h) (1994). In lieu of deportation, the Immigration Judge granted the respondents the privilege of voluntary departure under section 244(e)(1) of the Act, 8 U.S.C. § 1254(e)(1) (1994). The respondents have timely appealed the Immigration Judge's decision denying their applications for asylum and withholding of deportation. We deny the respondents' request for oral argument pursuant to 8 C.F.R. § 3.1(e) (1997), and we will dismiss their appeal.

I. FACTUAL BACKGROUND

The record reveals that the primary respondent is a 40-year-old native and citizen of Peru, who entered the United States without inspection on September 18, 1989. The co-respondent, who is married to the primary respondent, is a 37-year-old native and citizen of Peru who entered the United States without inspection on November 21, 1993. The primary respondent testified that he worked as a laborer at the ship docks in Lima, Peru, and was a member of the APRA political party. He stated that he assisted the APRA party in posting signs and painting, among other activities. The primary respondent recounted that in April and May of 1989, three of his friends were killed by the Shining Path guerrilla group approximately 4 miles from the primary respondent's workplace. These friends were APRA party members who distributed leaflets. The primary respondent claimed that in 1984, his uncle, who was employed as a police officer, was killed by Shining Path guerrillas. The uncle's daughter, also a police officer, was poisoned by Shining Path guerrillas in 1986. The primary respondent testified that at some point, a painted phrase appeared on the exterior of his house indicating that he would be "the next one"; he "assumed" that the Shining Path was responsible for this threat. The primary respondent stated that he was well known to the Shining Path because of his leadership position in local sports groups. Finally, he testified that he fears returning to Peru because the Shining Path will remember his face and kill him.¹

II. THE IMMIGRATION JUDGE'S DECISION

The Immigration Judge found the primary respondent to be a credible witness and found that the respondents had a subjective fear of persecution. He concluded, however, that the respondents' evidence did not prove past persecution or a well-founded fear of future persecution. The Immigration Judge also noted that because 6 1/2 years had passed since the primary respondent's departure from Peru, it was unlikely that the guerrillas would resume their threats against him. Finally, the Immigration Judge relied on the evidence of record to conclude that country conditions in Peru had improved since 1989.

III. APPELLATE ARGUMENTS

The respondents have appealed, arguing that the Immigration Judge (1) denied them due process of law by failing to consider all of the evidence of record; (2) gave too much weight to certain pieces of evidence; (3) erroneously found that they did not meet their burdens of proof to merit a grant of asylum or withholding of deportation; and (4) violated international treaty obligations in failing to grant asylum or withholding of deportation.

IV. ANALYSIS

An applicant qualifies as a refugee under section 101(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A) (1994), if he demonstrates that he has experienced persecution or has a well-founded fear of persecution in his home country on account of his race, religion, nationality, membership in a particular social group, or political opinion. See M.A. v. United States INS, 899 F.2d 304, 307 (4th Cir. 1990) (en banc); 62 Fed. Reg. 10,312, 10,342 (1997) (to be codified at 8 C.F.R. § 208.13(b)) (interim, effective Apr. 1, 1997). A fear of persecution is considered to be well founded under this section if it is genuine and if a reasonable person in the applicant's circumstances would fear persecution. See INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); INS v. Stevic, 467 U.S. 407 (1984); Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987).

A. Past Persecution

First, we adopt the Immigration Judge's finding that the primary respondent provided credible testimony. Moreover, we agree with the Immigration Judge's conclusion that the primary respondent did not suffer past persecution in Peru on account of one of the five protected grounds under the Act. See Cruz-Diaz v. INS, 86 F.3d 330, 331 (4th Cir. 1996) (holding that the evidence did not prove that the applicant objectively feared persecution on account of actual or imputed political opinion). Although regrettable, the harassment that the primary respondent received in the form of a painted threat on his house does not rise to the level of persecution. See, e.g., Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995) (distinguishing between mere harassment or discrimination and persecution); Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993) (finding that persecution within the Act does not encompass all treatment that society regards as unfair, unjust, or even unlawful or unconstitutional); Matter of Kasinga, 21 I&N Dec. 357, 365 (BIA 1996) (discussing the level of harm necessary to constitute persecution). Aside from this one threat, which the primary respondent could not link definitively to the Shining Path, the primary respondent admitted that neither he nor his immediate family had further encounters or problems with the Shining Path before his departure from Peru.

B. Well-founded Fear of Persecution

Next, we find that the primary respondent lacks an objective, well-founded fear of persecution from the Shining Path if he returns to Peru. See generally Huaman-Cornelio v. Board of Immigration Appeals, 979 F.2d 995, 1000 (4th Cir. 1992) (holding that the applicant failed to produce sufficient evidence to prove a well-founded fear of persecution at the hands of the Shining Path or the MRTA in Peru). We accept the primary respondent's testimony that Shining Path guerrillas murdered his uncle and cousin. However no evidence shows that these family members were murdered for reasons other than their status as police officers.² See Matter of Fuentes, 19 I&N Dec. 658, 661 (BIA 1988) (stating that "dangers faced by policemen as a result of that status alone are not ones faced on account of" one of the five protected grounds). Even assuming that these relatives were murdered over a decade ago for reasons outside of their occupations, the passage of time undermines the primary respondent's fear of harm based on the positions of his relatives. Furthermore, we note that the co-respondent remained unharmed in Peru for 4 years after the primary respondent's departure. Moreover, nowhere have the respondents argued that their family members have been harmed since the respondents' departures from Peru. See Cuadras v. United States INS, 910 F.2d 567, 571 (9th Cir. 1990) (holding that an applicant's fear of persecution is undercut when his or her family remains in the native country unharmed).

We also recognize that three of the primary respondent's APRA party friends allegedly were killed by Shining Path guerrillas. However, these murders occurred over 8 years ago, during a time when the Shining Path posed a greater threat to its political enemies and the general populace. As the evidence of record indicates, the Shining Path's ability to carry out retribution against its political opponents has diminished recently. See Bureau of Democracy, Human Rights and Labor, Dep't of State, Peru — Profile of Asylum Claims & Country Conditions 3 (Jan. 1996) [hereinafter Profile] (made part of the record of proceedings). The Profile states that the Peruvian Government "has seriously damaged" the Shining Path, "especially by apprehending its principal leaders, including Abimael Guzman, the founder, leader, and chief strategist of the organization, who was tried, convicted, and jailed for life in late 1992." Id. at 4. This source further reports that the "dismantling of [the Shining Path's] command and control structure" has been accompanied by a greater than 50 percent drop in the number of people murdered by the organization. Id.

Furthermore, in light of the country conditions evidence of record which states that the Shining Path operates in only a few areas of Peru, the respondents have not provided any evidence to suggest that their fear of persecution from the Shining Path would exist throughout that country. See Matter of C-A-L-, 21 I&N Dec. 754, 759 (BIA 1997) (discussing internal relocation). In light of this and the other evidence of...