Genaro Hermino Rodriguez-Rivera v. U.S. Department of Immigration and Naturalization
Docket: 87-7140
Court: Court of Appeals for the Ninth Circuit; August 12, 1988; Federal Appellate Court
Rodriguez-Rivera, a 28-year-old citizen of El Salvador, filed a petition for review after the Board of Immigration Appeals (BIA) denied his request for asylum and withholding of deportation. The Ninth Circuit Court of Appeals affirmed the BIA's decision. Rodriguez-Rivera entered the U.S. without inspection in March 1982 after fleeing El Salvador, where he feared for his life due to his political beliefs and refusal to serve in the military. He conceded deportability during proceedings initiated by the Immigration and Naturalization Service (INS) and subsequently applied for asylum, claiming persecution based on his political opinions and social group affiliation as a "Poor Urban Worker."
During the hearings, Rodriguez-Rivera indicated he would face danger upon return because he sought asylum and refused military service, although he did not provide specific incidents of persecution. His application lacked evidence of a well-founded fear of persecution based on the required criteria, as confirmed by a letter from the State Department. Despite his claims of past detainment by police and military, he did not detail any mistreatment or provide clarity on how he avoided military conscription. The court concluded that he failed to establish eligibility for asylum based on the evidence presented.
Rodriguez-Rivera expressed fear of persecution based on two unreported incidents during his asylum testimony. First, he mentioned a teacher, Penny, whose family was killed by armed forces due to her suspected guerrilla ties; however, he had no personal connection to her or her family and stated she was alive. Second, in December 1981, a guerrilla named Salvador attempted to recruit him, threatening him with death upon refusal. Later that month, Salvador and two others threatened him with guns but ultimately left him unharmed. After these incidents, Rodriguez-Rivera decided to flee to the United States out of fear for his life but did not report the threats, fearing repercussions for Salvador.
The Immigration Judge (IJ) denied his asylum and withholding of deportation requests, stating that to qualify as a refugee under 8 U.S.C. § 1101(a)(42)(A), he must demonstrate a well-founded fear of persecution due to specific grounds, including political opinion or group membership. The IJ found that Rodriguez-Rivera did not belong to a "particular social group" as defined by law and concluded he had not demonstrated a well-founded fear based on political opinion, noting his lack of political activity in El Salvador. The IJ deemed the Penny incident irrelevant and observed that Rodriguez-Rivera remained in El Salvador for two months after his encounter with Salvador, who was now deceased, with no indication that any guerrilla group sought him. Consequently, the IJ ruled he did not qualify for asylum or withholding of deportation, granting only voluntary departure to Costa Rica. Rodriguez-Rivera's appeal to the Board of Immigration Appeals (BIA) was dismissed, affirming the IJ’s decision, leading him to petition for court review.
Legal questions regarding the Board of Immigration Appeals (BIA) are reviewed de novo, while factual findings are assessed under the "substantial evidence" standard, which is stricter than clear error but still deferential. Courts cannot reverse the BIA solely based on disagreement with its factual evaluations; rather, the BIA's conclusions must be substantially reasonable based on the evidence presented.
In the case at hand, Rodriguez-Rivera contests the BIA's denial of his asylum request and withholding of deportation. He claims the Immigration Judge (IJ) improperly applied the "clear probability" standard for withholding of deportation to his asylum claim, that the BIA erred in interpreting his neutrality as a political opinion under section 1158(a), and that the BIA's conclusions lacked substantial evidence.
The asylum process under section 1158(a) requires a two-part analysis: first, establishing statutory eligibility based on a well-founded fear of persecution, which is defined as a refugee under 8 U.S.C. Sec. 1101(a)(42)(A), and second, a discretionary decision for asylum if eligibility is confirmed. The well-founded fear standard incorporates both subjective and objective elements, requiring a genuine fear of persecution supported by credible evidence.
Rodriguez-Rivera correctly points out that the IJ conflated the standards for asylum and withholding of deportation. However, if the BIA differentiated and applied the standards correctly, the IJ's error would be deemed harmless, as the BIA's decision is the focus of the review.
The BIA distinguished between the standards for withholding of deportation and asylum, noting that the "well-founded fear" standard for asylum is more lenient than the "clear probability" standard for withholding. Citing *Cardoza-Fonseca v. INS*, the BIA emphasized that applicants must provide specific, objective facts indicating past or future persecution, rather than mere assertions of fear. The BIA evaluated Rodriguez-Rivera's evidence and determined he did not demonstrate a clear probability of persecution or a well-founded fear of persecution under the relevant sections of the Act. While the BIA did not separately analyze the evidence for asylum and withholding claims, it adequately recognized the differing standards and applied the more generous asylum standard to Rodriguez-Rivera's claim. The BIA's approach was contrasted with that in *Rodriguez*, where the BIA used vague language implying the two standards were similar; however, in this case, the BIA clearly acknowledged the distinction, reinforcing its application of the well-founded fear standard.
Arteaga does not necessitate a different outcome in the current case. In Arteaga, the Board of Immigration Appeals (BIA) cited Cardoza-Fonseca but applied the more stringent clear probability standard for assessing asylum claims, despite the expectation of a more generous well-founded fear standard as indicated by the lengthy quotation from Cardoza-Fonseca. The court analyzed the BIA's opinion, concluding that it, like in Sanchez-Trujillo, ultimately reflected a rigorous application of the clear probability standard, even with references to Cardoza-Fonseca's more favorable standard.
In both Arteaga and the current case, the BIA cited Cardoza-Fonseca, acknowledging the well-founded fear standard as more generous. However, the current BIA opinion notably qualified this by emphasizing the distinction between the two standards. Both opinions also stated that the petitioners failed to demonstrate they would be singled out for persecution. Unlike Arteaga, the current case's BIA opinion did not cite prior cases applying the clear probability standard immediately after its statement regarding persecution.
The only significant difference in the BIA's evaluation was the absence of a statement in the current case regarding evidence of past persecution, which was present in Arteaga. Nevertheless, the current BIA affirmed that the petitioner had not established that he would be targeted for persecution, emphasizing that he must demonstrate a likelihood of persecution by non-governmental actors from whom the Salvadoran government is unable or unwilling to provide protection.
Sanchez-Trujillo governs the decision due to the absence of significant factors found in Arteaga. The conclusion is not based on minor distinctions in the BIA's use of terminology or citation practices but rather on a comprehensive review of the BIA's opinion. The court emphasizes that it must assess whether the BIA applied the appropriate legal standards in a case-by-case manner, rather than relying on specific phrases or citations. The BIA's opinion indicates it applied the more lenient "well-founded fear" standard to Rodriguez-Rivera's asylum claim, countering his argument that a more stringent "clear probability" standard was used. Additionally, Rodriguez-Rivera contends that the BIA incorrectly determined his political neutrality did not qualify as a political opinion under section 1101(a)(42)(A). The court acknowledges that political neutrality can indeed be considered a political opinion, citing relevant case law to support this interpretation.
Political neutrality can be considered a form of political opinion under section 1101(a)(42)(A), as recognized by the BIA. This conclusion is supported by three key points: the BIA outlined the criteria for asylum eligibility, referenced Bolanos-Hernandez which acknowledges political neutrality as a valid political opinion, and analyzed Rodriguez-Rivera's claim that his neutrality hindered his enlistment in the El Salvador Army. The BIA ultimately determined that Rodriguez-Rivera did not demonstrate a well-founded fear of persecution, as defined in Cardoza-Fonseca v. INS, based on the grounds for asylum.
Rodriguez-Rivera contested the BIA's conclusion, asserting that substantial evidence supported his fear of persecution due to his political neutrality, pointing to alleged threats from both the El Salvador government and guerrillas. According to Bolanos-Hernandez, an asylum seeker must prove a well-founded fear of persecution, that the persecution is from the government or an uncontrollable group, and that it is due to the individual’s political beliefs. The INS argued that the evidence did not substantiate Rodriguez-Rivera's claims, asserting that threats from the government or guerrillas were not based on his political opinion.
The evaluation of Rodriguez-Rivera's arguments focuses on whether substantial evidence supports the BIA's finding that he failed to establish a well-founded fear of persecution. The BIA is tasked with assessing the credibility of threats and whether the groups making those threats possess the capability to act upon them. Rodriguez-Rivera provided testimony about specific guerrillas and threats made against him, but one key individual involved in the threats is now deceased. The BIA can consider this testimony when determining the ability of the guerrilla to carry out the threats. Additionally, the BIA is encouraged to take into account general documentary evidence regarding guerrilla conduct to corroborate individual threats, even if such evidence does not identify specific individuals.
Rodriguez-Rivera's claims of governmental persecution hinge on three main points: his military recruitment, his arrest for not carrying identification, and his awareness of the murder of Penny's family members. However, recruitment into the military does not equate to political persecution, nor does the enforcement of identification laws. The Board of Immigration Appeals (BIA) found no link between the hardships faced by Penny's family and Rodriguez-Rivera, as she was neither related to him nor part of his group, and mere knowledge of violence does not substantiate a persecution claim. Additionally, Rodriguez-Rivera's possession of a government-issued passport and his family's continued safety in El Salvador further weaken his asylum request.
Regarding guerrilla persecution, the evidence consists of two threats made against Rodriguez-Rivera. The applicable test requires examining the actual ability of the guerrillas to carry out these threats, rather than just their existence. The BIA determined that Rodriguez-Rivera did not demonstrate a well-founded fear of persecution based on several factors: the threat-maker is deceased, no evidence suggests continued interest from the guerrillas in him, he did not report the threats to authorities, and he failed to include these encounters in his asylum application.
Substantial evidence supports the Board of Immigration Appeals' (BIA) determination that Rodriguez-Rivera did not demonstrate a well-founded fear of persecution by guerrillas. The BIA noted Rodriguez-Rivera's failure to mention guerrilla incidents in his asylum application and his lack of reporting the threats to authorities as significant shortcomings, although these would have been more impactful with an Immigration Judge's credibility assessment. The death of Salvador, who had threatened Rodriguez-Rivera, is a pivotal factor, eliminating any immediate threat. Furthermore, evidence indicates that the guerrillas lack the intent or capability to harm him, especially considering Rodriguez-Rivera lived without disturbance from December 1981 to February 1982, during which no objective signs of continued interest from the guerrillas were evident. This two-month period was deemed to weaken his claim of fearing persecution. Therefore, the BIA's conclusion was deemed reasonable. Consequently, the denial of withholding of deportation was also upheld, and the petition for review was denied. The panel deemed the case suitable for submission without oral argument per Ninth Circuit Rule 34-4 and Fed. R. App. P. 34(a).
