Menjivar v. INS, 00-3135
| Decision Date | 14 May 2001 |
| Docket Number | No. 00-3135,00-3135 |
| Citation | 259 F.3d 940 |
| Parties | (8th Cir. 2001) GILO UBALDO MENJIVAR, PETITIONER, v. IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT. Submitted: |
| Court | U.S. Court of Appeals — Eighth Circuit |
Petition for Review of an Order of the Immigration and Naturalization Service.
Before Morris Sheppard Arnold, Bright, and Bye, Circuit Judges.
Gilo Ubaldo Menjivar petitions for review of the order of the Board of Immigration Appeals (BIA) affirming an immigration judge's decision to deny Mr. Menjivar's application for asylum. We affirm.
Mr. Menjivar, a native and citizen of El Salvador, who concedes his deportability, claims that he is entitled to asylum in the United States because of a well- founded fear of persecution on account of his political opinion and membership in a particular social group. We are obligated to affirm the BIA's conclusion that Mr. Menjivar "was not eligible for asylum" if that conclusion is supported by " 'reasonable, substantial, and probative evidence on the record considered as a whole,' " Immigration and Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481 (1992), quoting 8 U.S.C. § 1105a(a)(4) (repealed 1996).1
The attorney general is authorized to grant asylum to a "refugee," 8 U.S.C. § 1158(b)(1), that is, as relevant here, to a person who does not want to return home "because of... a well-founded fear of persecution on account of... membership in a particular social group, or political opinion," 8 U.S.C. 1101(a)(42)(A). The petitioner's fear must not only be actual, it must be objectively reasonable as well, that is, the petitioner must show that "a reasonable person in the alien's position would fear persecution if returned to the alien's native country." Ghasemimehr v. Immigration and Naturalization Serv., 7 F.3d 1389, 1390 (8th Cir. 1993) (per curiam).
Mr. Menjivar asserts that he deserted from the armed forces of El Salvador because of his opposition to being required to participate in what he calls the military mafia, an organization devoted to the systematic theft of government property. He testified that after he deserted the army he was advised that the military police were searching for him and he therefore feared persecution by them. He claims that he has a fear of persecution due to his opposition to organized corruption in the army and that this amounts to persecution on account of his political beliefs and his membership in a social group.
We entertain some considerable doubt about whether Mr. Menjivar belongs to a "social group" within the meaning of the relevant statute. He argues that his social group consists of "all persons who have personal knowledge of this military mafia and specific knowledge of conduct by officers of the Salvadoran air force... and for one reason or another in this case, desertion,...
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...is governed by the repealed section 1105a and by transitional rules not relevant to the issues presented on appeal. Menjivar v. INS, 259 F.3d 940, 941 n. 1 (8th Cir.2001). We review the factual findings underlying the BIA's denial of an appeal under the substantial evidence standard. INS v.......
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