Matter of Maldonado-Cruz
| Decision Date | 21 January 1988 |
| Docket Number | A-27549626.,Interim Decision Number 3041 |
| Citation | 19 I&N Dec. 509 |
| Parties | MATTER OF MALDONADO-CRUZ. In Deportation Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
On January 14, 1987, the immigration judge found the respondent deportable as charged, denied his applications for asylum and for withholding of deportation under sections 208 and 243(h) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158 and 1253(h) (1982), and denied him the privilege of voluntary departure in lieu of deportation. The respondent has appealed from that decision. The appeal will be dismissed.
The respondent is a native and citizen of El Salvador who conceded that he entered the United States without inspection on October 21, 1986. Accordingly, his deportability is established by clear, unequivocal, and convincing evidence. Woodby v. INS, 385 U.S. 276 (1966). The respondent agrees that the issues presented on appeal are his eligibility for asylum and withholding of deportation.
THE PROCEDURAL CONTENTIONS
We first address the respondent's procedural arguments raised on appeal. The respondent claims that, due to the conditions of detention and the lack of "consistent Spanish speaking counsel and translators," he was unable to communicate "significant facts" concerning his asylum application. We find no evidence in the record to support the respondent's contention. The respondent was represented by counsel prior to, during, and subsequent to his deportation hearing. Moreover, on appeal, the respondent's case was fully briefed and argued by his counsel before the Board. During the deportation hearing a Spanish-language translator was utilized. We have considered the affidavits of the respondent and his counsel and we are convinced that he was given a full and fair opportunity to present his asylum claim. We find no prejudice to the respondent. Matter of Santos, 19 I&N Dec. 105 (BIA 1984); see also Patel v. INS, 803 F.2d 804 (5th Cir. 1986).
THE RESPONDENT'S PERSECUTION CLAIM
We also find that the immigration judge properly denied the respondent's applications for asylum and withholding of deportation. The respondent bears the evidentiary burdens of proof and persuasion in any application for withholding of deportation under section 243(h) or asylum under section 208 of the Act. Matter of Acosta, 19 I&N Dec. 211 (BIA 1985); 8 C.F.R. §§ 208.5, 242.17(c) (1988). The respondent must establish the facts underlying his claims for such relief by a preponderance of credible, probative evidence. He must also establish that the facts proven satisfy the statutory standards of eligibility for these forms of relief. Matter of Acosta, supra.
To be eligible for withholding of deportation pursuant to section 243(h) of the Act, an alien's facts must show a clear probability of persecution in the country designated for deportation on account of race, religion, nationality, membership in a particular social group, or political opinion. Section 101(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A) (1982); section 208 of the Act. The United States Supreme Court has determined that the "well-founded fear" standard imposed on asylum applicants differs from the "clear probability" standard imposed on aliens who seek withholding of deportation and that the evidentiary burden for establishing entitlement to withholding of deportation is greater than that imposed on aliens who seek asylum. INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).
An applicant for asylum has established a well-founded fear if he shows that a reasonable person in his circumstances would fear persecution. Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987).1
The respondent's persecution claim consists of the following facts. The record indicates that the respondent entered the United States on three separate occasions, the last time being in 1985. He claims that, sometime in 1983, he and a friend were kidnapped by guerrillas in El Salvador. The respondent claims that, after several days of training, he was forced to participate in a guerrilla operation against his village. During the operation, the respondent's friend was killed by the guerrillas when he tried to escape. The respondent claims to have heard of his friend's death through conversations with other guerrillas. A few days later, the respondent managed to escape from the guerrillas and went to his parents' home, and, after spending a few hours there, he left for San Salvador. The respondent claims that, while waiting for a bus in San Salvador, he met some neighbors from his village who told him the guerrillas had been looking for him. A short time later, the respondent left San Salvador and went to Guatemala and eventually made his way to the United States. The respondent believes that the guerrillas will kill him for having deserted them.
The respondent further states that the military forces of El Salvador will persecute him because of their "perceived political opinion" that he is a member of the guerrillas.
THE CLAIM OF PERSECUTION BY THE GUERRILLAS
The first issue in the respondent's asylum claim is whether his fear that he will be harmed or even killed by the guerrilla organization he was forced to join constitutes a threat of persecution, or a threat of some other nature not encompassed by the Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102. In other words, the issue does not involve questions of proof, but whether the harm the respondent fears is on account of "political opinion" as this term is used under section 101(a)(42)(A) of the Act. See Campos-Guardado v. INS, 809 F.2d 285, 291 (5th Cir. 1987).
An alien who succeeds in establishing a well-founded fear of being harmed will not necessarily be granted asylum. Thus, for example, aliens fearing retribution over purely personal matters or those fleeing general conditions of violence and upheaval in their native countries would not qualify for asylum. Such persons may have well-founded fears of harm but such harm would not be on account of their race, religion, nationality, membership in a particular social group, or political opinion. See, e.g., Sanchez-Trujillo v. INS, 801 F.2d 1571 (9th Cir. 1986); Contreras-Aragon v. INS, 789 F.2d 777 (9th Cir. 1986); Diaz-Escobar v. INS, 782 F.2d 1488 (9th Cir. 1986); Dally v. INS, 744 F.2d 1191 (6th Cir. 1984); Carvajal-Munoz v. INS, 743 F.2d 562 (7th Cir. 1984); Martinez-Romero v. INS, 692 F.2d 595 (9th Cir. 1982); Matter of Pierre, 15 I&N Dec. 461 (BIA 1975).
In Campos-Guardado v. INS, supra, the United States Court of Appeals for the Fifth Circuit observed: "The issue reduces to whether the political implications underlying an alien's fear of harm rise to the level of `political opinion' within the meaning of the statute or whether those conditions constitute the type of civil strife outside the intended reach of the statute." Id. at 290. In Matter of Acosta, supra, we observed:
[T]he respondent did not demonstrate that the persecution he fears is "on account of political opinion." The fact that the respondent was threatened by the guerrillas as part of a campaign to destabilize the government demonstrates that the guerrillas' actions were undertaken to further their political goals in the civil controversy in El Salvador. However, conduct undertaken to further the goals of one faction in a political controversy does not necessarily constitute persecution "on account of" political opinion so as to qualify an alien as a "refugee" within the meaning of the Act.
The Ninth Circuit stated the following in Hernandez-Ortiz v. INS, 777 F.2d 509 (9th Cir. 1985):
A clear probability that an alien's life or freedom is threatened, without any indication of the basis for the threat, is generally insufficient to constitute "persecution". . . . . There must also be some evidence that the threat is related to one of the factors enumerated in section 243(h).
Id. at 516. The court further stated [I]n determining whether threats or violence constitute political persecution, it is permissible to examine the motivation of the persecutor; we may look to the political views and actions of the entity or individual responsible for the threats or violence, as well as to the victim's, and we may examine the relationship between the two.
Id. Persecution will occur "only when there is a difference between the persecutor's views or status and that of the victim; it is oppression which is inflicted on groups or individuals because of a difference that the persecutor will not tolerate." Id.
We believe that this formulation offers a...
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