Matter of Martinez-Romero
| Decision Date | 30 June 1981 |
| Docket Number | A-23039950,Interim Decision Number 2872 |
| Citation | 18 I&N Dec. 75 |
| Parties | MATTER OF MARTINEZ-ROMERO In Deportation Proceedings |
| Court | U.S. DOJ Board of Immigration Appeals |
The respondent appeals from a November 6, 1980, decision of an immigration judge, denying her motion to reopen deportation proceedings for the purpose of applying for asylum and denying a request for a stay of deportation. The appeal will be dismissed.
The respondent is a 24-year-old single female alien, a native and citizen of El Salvador. She was admitted to the United States on or about January 14, 1975, as a nonimmigrant student and was authorized to remain in the United States for a temporary period, not to exceed 1 year.
An Order to Show Cause was issued on March 26, 1980, charging the respondent with deportability under section 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C. 1251(a)(2), as a nonimmigrant under section 101(a)(15) who remained in the United States for a longer time than permitted. A hearing was held on April 2, 1980, in which the respondent admitted the factual allegations in the Order to Show Cause and conceded deportability. The immigration judge, in a summary decision on the same day, found the respondent deportable as charged. The respondent, who was represented by counsel, waived appeal. The immigration judge granted the respondent voluntary departure until October 2, 1980, a period of 6 months, which was subsequently extended until October 27, 1980, by the District Director.1 The respondent failed to depart.
In a motion dated October 28, 1980, and received by the government on October 31, 1980,2 the respondent, through counsel, sought to reopen her deportation proceedings so that she could apply for asylum. The respondent also requested a stay of deportation pending adjudication of the motion to reopen.3 In support of her motion, the respondent submitted her own affidavit, Form G-325 (Biographic Information), and Form I-589 (Request for Asylum in the United States). In her application for asylum, the respondent stated that students in El Salvador were prime targets for persecution, that schools have been shut down, and that students have been killed or have disappeared. She added that while in the United States, she has openly criticized the killings and oppression that is being caused by the military of El Salvador. She believes that because she has been absent from El Salvador, she would be in a worse position than the people who have remained. The respondent also submitted nine newspaper articles published in June, July, and August 1980. Each of these articles described general conditions in El Salvador.
In his decision of November 6, 1980, the immigration judge considered the respondent's basis for asylum, the civil unrest in El Salvador, and the government's opposition.4 He stated that in order to be eligible for asylum, an alien must establish that his life or freedom would be threatened in a country on account of race, religion, nationality, membership in a particular social group, or political opinion.5 He was unpersuaded that the respondent faced a danger greater than any other citizen of El Salvador and found that the respondent had not met her burden of coming forward with a prima facie showing that she would be singled out for some specific reason. The immigration judge further noted that, at the deportation hearing, the respondent did not file an asylum claim or claim withholding of deportation under section 243(h) of the Act.6 He also found that the respondent's motion was deficient because she did not justify her failure to apply for asylum at the time of the hearing.
The immigration judge denied the respondent's request for a stay of deportation. He concluded that inasmuch as he denied the motion to reopen, there would be no purpose in granting a stay pending a decision on the motion to reopen.
The respondent appeals through counsel. Her entire argument is as follows:
Review is sought of the refusal to stay deportation proceedings and the refusal to re-open [sic] deportation proceedings. The reasons for this appeal are abuse of discretion and refusal to exercise discretion. The alien's request for asylum in the United States was not allowed to be filed. New evidence has been discovered by alien's new counsel that justifies the filing and granting of a prima facie claim for persecution.
Motions to reopen deportation proceedings, while not provided for under the Act itself, are permitted by regulations promulgated thereunder. The regulations provide that a motion to reopen "shall not be granted unless it appears to the Board that evidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing. . . ." 8 C.F.R. 3.2. The motion "shall state the new facts to be proved at the reopened hearing and shall be supported by affidavits or other evidentiary material." (Emphasis supplied.) 8 C.F.R. 3.8.7 The motion will not be granted "when a prima facie case of eligibility for the relief sought has not been established." INS v. Wang, 101 S. Ct. 1027 (1981); Matter of Rodriguez, 17 I&N Dec. 105 (BIA 1979); Matter of Lam, 14 I&N Dec. 98 (BIA 1972). See Matter of Sipus, 14 I&N Dec. 229 (BIA 1972).
An applicant for asylum or withholding of deportation must show that, if deported, he would be subject to persecution based on his race, religion, nationality, membership in a particular social group, or political opinion. To meet this burden of proof, an alien must demonstrate a clear probability that he will be persecuted if returned to his country. 8 C.F.R. 208.5; Matter of McMullen, 17 I&N Dec. 542 (BIA 1980); cf. Cheng Kai Fu v. INS, 386 F.2d 750 (2 Cir. 1967), cert. denied, 390 U.S. 1003 (1968) (); Matter of Dunar, 14 I&N Dec. 310 (BIA 1973) (). Persecution under section 243(h) has been defined as the infliction of suffering or harm upon those who differ (in race, religion, or political opinion) in a way regarded as offensive. Moghanian v. United States, 577 F.2d 141 (9 Cir. 1978); Kovac v. INS, 407 F.2d 102 (9 Cir. 1969). See Pereira-Diaz v. INS, 551 F.2d 1149 (9 Cir. 1977).
We recognize the difficulty a person may face in establishing that he or she will be persecuted. We also are aware of the political upheaval in El Salvador. However, generalized undocumented assertions regarding claims of persecution ordinarily will not be sufficient to support a motion to reopen. See generally Matter of Chumpitazi, 16 I&N Dec. 629 (BIA 1978). Similarly, general allegations of political upheaval which affect the populace as a whole are insufficient to warrant reopening. See generally Fleurinor v. INS, 585 F.2d 129 (5 Cir. 1978); Matter of Diaz, 10 I&N Dec. 199 (BIA 1963); see also Matter of McMullen, supra. Evidence presented in support of a claim of persecution must demonstrate a clear probability of persecution directed at the individual respondent or a class to which the individual respondent belongs. Cheng Kai Fu v. INS, supra; Matter of Chumpitazi, supra. Evidence such as newspaper articles will be considered in evaluating a claim of persecution. However, this type of evidence normally is not significantly probative on the issue of whether a particular alien would be subject to persecution if deported. See Matter of McMullen, supra.
Reopening is not warranted in this case because the respondent has not established prima facie eligibility, either for withholding of deportation or for asylum. Her motion is insufficient because the evidence sought to be offered does not tend to establish that she would be persecuted or that she has a well-founded fear of persecution.
The respondent contends that she will be persecuted because of her political opinions. She also contends that she will be persecuted because she is a former student and students are persecuted. The statements in her affidavit and application for asylum are conclusory. The nine newspaper articles regarding conditions in El Salvador are generalized articles which do not single out the respondent or students in general for disparate treatment. None of the evidence indicates that the respondent...
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