Matter of Vigil
| Decision Date | 17 March 1988 |
| Docket Number | Interim Decision Number 3050,A-26787128. |
| Citation | 19 I&N Dec. 572 |
| Parties | MATTER OF VIGIL. In Deportation Proceedings. |
| Court | U.S. DOJ Board of Immigration Appeals |
This is an appeal from the oral decision of the immigration judge dated June 5, 1985, denying the respondent asylum and withholding of deportation under sections 208(a) and 243(h) of the Immigration and Nationality Act, 8 U.S.C. §§ 1158(a) and 1253(h) (1982), and granting the respondent the privilege of voluntary departure in lieu of deportation. The appeal will be dismissed. The respondent's request for oral argument is denied.
The respondent is a 20-year-old native and citizen of El Salvador. He entered the United States without inspection on or about December 17, 1984. At his deportation hearing, the respondent conceded that he was deportable as charged in the Order to Show Cause, Notice of Hearing, and Warrant for Arrest of Alien (Form I-221S). We therefore find that the respondent's deportability has been established by clear, unequivocal, and convincing evidence as required by Woodby v. INS, 385 U.S. 276 (1966), and 8 C.F.R. § 242.14(a) (1988).
The immigration judge concluded that the respondent was not eligible for asylum or withholding of deportation because he did not demonstrate a well-founded fear of persecution based on his membership in a particular social group or his political opinion. The respondent contends that this determination was "erroneous as a matter of law" and "unsupported by substantial evidence." He stresses on appeal that he has met his burden of establishing relief under sections 208(a) and 243(h) of the Act, and, in addition, he contends that the immigration judge made several procedural errors which merit a remand for a new hearing.
Section 208(a) of the Act provides the Attorney General with the discretion to grant asylum to any alien who qualifies as a "refugee" within the meaning of section 101(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A) (1982). That section defines a "refugee" as
any person who is outside any country of such person's nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided, and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that 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.
The alien bears the burden of establishing eligibility for asylum. See 8 C.F.R. § 208.5 (1988).
Under section 243(h) of the Act, the Attorney General does not have discretion and "shall not" deport an alien to a country if he determines that "such alien's life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political opinion." The alien also bears the burden of establishing eligibility for withholding of deportation. 8 C.F.R. § 242.17(c) (1988); see also INS v. Stevic, 467 U.S. 407, 423 n.16 (1984). In INS v. Stevic, supra, at 430, the Supreme Court concluded that an alien must show a "clear probability of persecution" in order to establish eligibility for section 243(h) relief.
Subsequent to the immigration judge's decision in this case, the Supreme Court also decided in INS v. Cardoza-Fonseca, 480 U.S. 421 (1987), that there is a significant difference between the section 208(a) and section 243(h) standards for relief and that an alien need not show a "clear probability of persecution" in order to be eligible for asylum. In Matter of Mogharrabi, 19 I&N Dec. 439 (BIA 1987), we adopted the "reasonable person" standard, first enunciated by the United States Court of Appeals for the Fifth Circuit in Guevara Flores v. INS, 786 F.2d 1242 (5th Cir. 1986), cert. denied, 480 U.S. 930 (1987), for the adjudication of asylum cases. The Guevara Flores court had stated that "[a]n alien possesses a well-founded fear of persecution if a reasonable person in her circumstances would fear persecution if she were to be returned to her native country." Id. at 1249.
Turning to the merits of this respondent's asylum application, we find that the respondent has not shown that he qualifies as a "refugee" as defined in the Act. As the Supreme Court stated in INS v. Stevic, supra, at 423 n.18, "[I]n order to be eligible for asylum, an alien must meet the definition of refugee contained in § 101(a)(42)(A). . . ." The respondent here fails to meet that definition because he has not demonstrated a well-founded fear of persecution "on account of" any of the five grounds enumerated in section 101(a)(42)(A) of the Act.
The respondent submits that he belongs to a "particular social group" consisting of young, male, unenlisted, urban Salvadorans, and that he fears persecution because he belongs to this group. In Matter of Sanchez and Escobar, 19 I&N Dec. 276 (BIA 1985), aff'd, Sanchez-Trujillo v. INS, 801 F.2d 1571 (9th Cir. 1986), we rejected the argument that a group of "young . . ., urban, working-class males of military age who have not served in the military" constitutes a "particular social group," because the respondents there had not established "the existence of a `particular social group' which is persecuted on account of the group's specific identifying characteristics." Id. at 285-86. The Ninth Circuit affirmed this conclusion, holding that the group of "young, working class, urban males of military age does not exemplify the type of `social group' for which the immigration laws provide protection from persecution." Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576-77 (9th Cir. 1986).
In Ananeh-Firempong v. INS, 766 F.2d 621 (1st Cir. 1985), the Court of Appeals for the First Circuit, in which this respondent's case arises, discussed the meaning of a "particular social group" in the context of a section 243(h) case. The court endorsed the following language as being central to a determination of what constitutes a particular social group: "`[S]ocial group' persecution must be based on a `characteristic that either is beyond the power of an individual to change or is so fundamental to individual identity or conscience that it ought not to be required to be changed.'" Id. at 626 (citation omitted) (quoting Matter of Acosta, 19 I&N Dec. 211 (BIA 1985)). Ananeh-Firempong concerned a citizen of Ghana who had made statements in her affidavit regarding persecution of her family, her tribe, and persons of her political persuasion. The group of young, urban, unenlisted Salvadorans was not at issue in Ananeh-Firempong. The factors which identify the respondent's group in the instant case (age, living environment, military status), however, are not factors that are "fundamental to individual identity or conscience." Under the analysis of the First Circuit in Ananeh-Firempong, then, the respondent's group would not appear to qualify as a "particular social group" for "refugee" purposes; and, according to this Board's reasoning in Matter of Sanchez and Escobar, supra, the group of "male, young, urban, unenlisted" Salvadorans definitely does not constitute a "particular social group" within the meaning of section 101(a)(42)(A).
The respondent also contends that he fears persecution on account of his "political opinion." In this regard the respondent relies heavily on the Ninth Circuit Court of Appeals' holding in Bolanos-Hernandez v. INS, 767 F.2d 1277, 1287 (9th Cir. 1984), that "an individual's choice [for neutrality] . . . constitutes . . . a manifestation of political opinion."
The respondent testified about three incidents in El Salvador which are the primary basis of his persecution claim. First, he stated that, while he was on his way to school one day in 1979, he saw a young man who had been beheaded. The respondent did not know the victim but asserted that, when he saw the beheaded young man, he began to fear...
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