Navarijo-Barrios v. Ashcroft

• Decision Date: 12 March 2003
• Docket Number: No. 02-2463.,02-2463.
• Citation: 322 F.3d 561
• Parties: Erwin Eliazar NAVARIJO-BARRIOS, Petitioner, v. John ASHCROFT, Attorney General of the United States, Respondent.
• Court: U.S. Court of Appeals — Eighth Circuit

322 F.3d 561

Erwin Eliazar NAVARIJO-BARRIOS, Petitioner, v. John ASHCROFT, Attorney General of the United States, Respondent.

No. 02-2463.

United States Court of Appeals, Eighth Circuit.

Submitted: January 17, 2003.

Filed: March 12, 2003.

James S. Phillips, argued, Wichita, KS, for appellant.

Anthony A. Yang, argued, Washington, D.C., for appellee.

Before MORRIS SHEPPARD ARNOLD, BRIGHT, and SMITH, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Erwin Eliazar Navarijo-Barrios petitions for review of the order of the Board of Immigration Appeals (BIA) affirming an immigration judge's decision to deny Mr. Navarijo-Barrios's application for asylum. We affirm.

Mr. Navarijo-Barrios, a native and citizen of Guatemala, who concedes his removability, claims that he is entitled to asylum in the United States because of past persecution and a well-founded fear of future persecution on account of his political opinion. We review the BIA's factual findings, including whether a petitioner has demonstrated past persecution or a well-founded fear of future persecution, for substantial evidence. We are obligated to affirm the BIA's conclusion that Mr. Navarijo-Barrios was not eligible for asylum unless Mr. Navarijo-Barrios shows that the evidence not only supports reversal, but compels it. See 8 U.S.C. § 1252(b)(4)(B); INS v. Elias-Zacarias, 502 U.S. 478, 481 & n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).

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 ... political opinion." 8 U.S.C. § 1101(a)(42)(A). To establish such a fear, a petitioner must demonstrate that his or her fear is both subjectively genuine (for example, through credible testimony that the petitioner actually fears persecution) and objectively reasonable (for example, through "credible, direct, and specific evidence of facts" showing that "a reasonable person in [the petitioner's] position would fear persecution if returned to the [petitioner's] native country"). See Ghasemimehr v. INS, 7 F.3d 1389, 1390 (8th Cir. 1993) (per curiam). Our examination of the record leads us to conclude that there is substantial evidence to support the BIA's determination that Mr. Navarijo-Barrios failed to establish that he was persecuted in the past or that he has a well-founded fear of future persecution.

The immigration judge determined that Mr. Navarijo-Barrios's testimony was not credible because it was significantly inconsistent with his application for asylum, and the BIA affirmed that conclusion. Cf. Rucu-Roberti v. INS, 177 F.3d 669, 670 (8th Cir.1999) (per curiam); Hamzehi v. INS, 64 F.3d 1240, 1243-44 (8th Cir.1995). In his 1998 application for asylum, Mr. Navarijo-Barrios responded "No" to the question "Have you or any member of your family ever belonged to or been associated with any organizations or groups in your home country (i.e., a political party...)?" Yet during his 2000 hearing before the immigration judge, Mr. Navarijo-Barrios testified that he, his father, and grandfather belonged to the same political party, and that he feared persecution because (at the time of his hearing) a rival party controlled the Guatemalan government. We think that Mr. Navarijo-Barrios's failure to declare any political affiliation until the proverbial "eleventh hour" is a circumstance that could lead a reasonable fact finder to disbelieve him. We fail to see, moreover, how Mr. Navarijo-Barrios's party membership places him at risk of persecution. Mr. Navarijo-Barrios's mere membership in a political party competing for power in his country's constitutional democracy cannot, without more, qualify him as a refugee.

Mr. Navarijo-Barrios also testified that in 1978, his grandfather was murdered one day before the grandfather was to take office as mayor. Yet Mr. Navarijo-Barrios neglected to mention this incident in his asylum application. Mr. Navarijo-Barrios did assert in both his application and testimony that guerillas shot and injured his father in 1980 because his father, who served two terms as mayor and who was working as the administrator of a farm, refused to pay the guerillas a "war tax" to fund the guerillas' war efforts. As the BIA noted, however, these...