Matter of Fuentes

• Citation: 19 I&N Dec. 658
• Decision Date: 18 April 1988
• Docket Number: Interim Decision Number 3065,A-24841098.
• Parties: MATTER OF FUENTES. In Deportation Proceedings.
• Court: U.S. DOJ Board of Immigration Appeals

19 I&N Dec. 658

MATTER OF FUENTES.

In Deportation Proceedings.

Interim Decision Number 3065

A-24841098.

Board of Immigration Appeals.

Decided by Board April 18, 1988.

(1) Dangers which arise from the nature of employment as a policeman in an area of domestic unrest (e.g., attacks because they are viewed as extensions of a government's military forces) do not support a claim of a well-founded fear of "persecution" within the scope of section 208 of the Immigration and Nationality Act, 8 U.S.C. § 1158 (1982).

(2) If policemen or guerrillas are considered to be victims of persecution based solely on an attack by one against the other, virtually all participants on either side of an armed struggle could be characterized as "persecutors" of the opposing side and would thereby be ineligible for asylum or withholding of deportation.

(3) Status as a former policeman is an immutable characteristic, and mistreatment occurring because of such status in appropriate circumstances could be found to be persecution on account of political opinion or membership in a particular social group.

(4) Although an applicant for asylum, who claims he may be subject to persecution because of his status as a former policeman, need not establish the exact motivation of a "persecutor" where different reasons for actions are possible, he does bear the burden of establishing facts on which a reasonable person would fear that the danger arises on account of his race, religion, nationality, membership in a particular social group, or political opinion.

(5) Even if an asylum claim is assumed to be otherwise demonstrated, eligibility for asylum based on nongovernmental action may not be adequately established where the evidence of danger is directed to a very local area in the country of nationality.

CHARGE:

Order: Act of 1952 — Sec. 241(a)(2) [8 U.S.C. § 1251(a)(2)] — Entered without inspection

ON BEHALF OF RESPONDENT: Vincent J. Agresti, Esquire 56-58 Ferry Street Newark, New Jersey 07105

ON BEHALF OF SERVICE: David Dixon Appellate Counsel

BY: Milhollan, Chairman; Dunne, Morris, Vacca, and Heilman, Board Members.

In a decision dated August 14, 1984, the immigration judge found the respondent deportable as charged, denied his applications for asylum and withholding of deportation, but granted him voluntary departure. The respondent has appealed from that decision. The appeal will be dismissed.

The respondent is a 33-year-old native and citizen of El Salvador who entered the United States in 1982 without inspection. He conceded deportability at his hearing. The sole issue on appeal concerns his eligibility for asylum and for withholding of deportation.

The respondent maintains that he will be persecuted and harmed by leftist insurgents in El Salvador on account of his association with the Government of El Salvador. He testified that he was a member of the national police in El Salvador from 1967 to 1980 and a guard at the United States Embassy from 1980 until 1982. In both capacities, the respondent and his fellow officers were attacked by guerrillas on several occasions. In one incident, for example, while checking the highways, guerrillas assaulted his police group and killed one of his fellow officers. On another occasion, four guerrillas in an automobile machine-gunned the Embassy while he was standing guard. When the guerrillas returned for a second attack, they were captured.

The respondent further testified that many inhabitants of his hometown had joined the guerrillas and they were very active in that area. The guerrillas there knew him by name, knew he was a member of the police, and had threatened him personally while he was a member of the national police. He stated that the government was unable to protect him in El Salvador and he had fled to avoid being killed. The respondent additionally testified that two of his relatives, who had been "local commanders," had committed suicide because of their fear of the guerrillas.

In addition to his own testimony, the respondent presented two witnesses who had known him in El Salvador. They testified that the situation in his hometown was very dangerous; that it was an area of ongoing fighting between the military and the guerrillas; that the guerrillas there killed people for "having been" in the military; that the guerrillas knew of the respondent's past service; that he would be punished or "disappear" if he returned to his hometown even if he was no longer in service; and that the government could not protect him. One of the two witnesses also stated that the guerrillas had the names of the people who had been in the service and would immediately find out if the respondent returned to his hometown.

An alien who is seeking withholding of deportation from any country must show that his "life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion." Section 243(h)(1) of the Immigration and Nationality Act, 8 U.S.C. § 1253(h)(1) (1982). In order to make this showing, the alien must establish a "clear probability" of persecution on account of one of the enumerated grounds. INS v. Stevic, 467 U.S. 407 (1984). This clear probability standard requires a showing that it is more likely than not that an alien would be subject to persecution. Id. at 429-30.

In order to establish eligibility for a grant of asylum, an alien must demonstrate that he is unwilling or unable to return to his country because of persecution or a "well-founded fear" of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion. Section 208 of the Act, 8 U.S.C. § 1158 (1982). The Board previously took the position that, as a practical matter, the showing required to establish a well-founded fear of persecution for asylum purposes was the same as that required to establish a clear probability of persecution for purposes of withholding of deportation. Matter of Acosta, 19 I&N Dec. 211 (BIA 1985). The Supreme Court has rejected this approach in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987). In that case, the Court found it reasonable to assume that Congress intended to make it more difficult to establish absolute entitlement to withholding of deportation under section 243(h) than to establish mere eligibility for asylum under section 208 of the Act. Id. at 443-44. In Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987), the Board reexamined the burden of proof in asylum cases in light of the Supreme Court's holding. In that case, it was held that an applicant for asylum has established a well-founded fear if a reasonable person in his circumstances would fear persecution on account of one of the grounds specified in the Act. We noted that a reasonable...