Carlos Jose Murillo Rojas v. Immigration & Naturalization Service, Juan Antonio Chang v. Immigration & Naturalization Service, Juana Rosa Alvarado-Garcia and Jorge Ramon Duarte-Montoya v. Board of Immigration Appeals R. Kevin McHugh Immigration Judge Immigration and Naturalization Service, John B.Z. Caplinger, District Director

Citations: 937 F.2d 186; 1991 U.S. App. LEXIS 17228Docket: 90-4694

Court: Court of Appeals for the Fifth Circuit; August 2, 1991; Federal Appellate Court

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Three consolidated cases involve petitions for review of orders by the Board of Immigration Appeals (BIA) denying asylum and withholding of deportation for four individuals: Carlos Jose Murillo Rojas, Juan Antonio Chang, Juana Rosa Alvarado-Garcia, and Jorge Ramon Duarte-Montoya. All petitioners appeal the BIA's decisions, arguing that they will face persecution if returned to Nicaragua.

Carlos Jose Murillo Rojas, a Nicaraguan citizen, acknowledges his deportability but claims asylum due to fears of persecution by the Sandinista government stemming from his past work as a Red Cross volunteer. Although he faced threats and was denied access to injured individuals by the Sandinistas, he had never been detained or imprisoned. The BIA found no evidence of past persecution sufficient for asylum, noting that the Sandinistas no longer govern Nicaragua, thus diminishing Rojas' fears. Consequently, his request for asylum and withholding of deportation was denied.

Juan Antonio Chang, also from Nicaragua, entered the U.S. illegally in 1984 and was ordered to show cause for his deportation in 1987. He admitted to his deportability but sought a continuance to apply for asylum and withholding of deportation. 

The court upheld the BIA’s decisions, confirming that the petitioners did not meet the necessary legal standards for asylum or withholding of deportation. The decisions were affirmed without the opportunity to reopen the record for new evidence.

Chang applied for asylum and withholding of deportation, asserting that he was viewed as an enemy of the Sandinista Revolution for refusing to serve in the militia. He testified that he was arrested, beaten, and tortured for not performing mandatory night patrols. Following his release, he lost his job, and the Sandinista Defense Committee denied him a work card, leading him to feel threatened. After two months, he fled to Managua and then to the United States with a passport obtained from a cousin.

The Immigration Judge denied Chang's asylum application, stating he did not experience "persecution per se" and lacked specific evidence of potential persecution upon returning to Nicaragua. The Judge suggested Chang may have overreacted to his situation. The Board of Immigration Appeals (BIA) upheld this decision, noting that Chang’s fear of persecution did not relate to the legally recognized grounds for asylum and acknowledged that the Sandinistas no longer governed Nicaragua after recent elections. The BIA concluded that even if persecution was assumed, humanitarian factors did not necessitate granting asylum.

Juana Rosa Alvarado-Garcia and Jorge Ramon Duarte-Montoya, Nicaraguan citizens who entered the U.S. illegally in 1984, also sought asylum. Alvarado-Garcia feared persecution from the Sandinistas due to her family's connections to the previous regime and her refusal to cooperate with the Sandinistas, which resulted in the loss of her food ration card. Duarte-Montoya feared persecution for his family's anti-Sandinista activities, having been interrogated about his brother's involvement with an opposition group and physically assaulted during questioning. Duarte-Montoya left Nicaragua after receiving another police summons.

Asylum and withholding of deportation were denied to Alvarado-Garcia and Duarte-Montoya, who were granted voluntary departure from the U.S. The Immigration Judge concluded that their claims were primarily based on the actions of their relatives and that they failed to demonstrate a well-founded fear of persecution upon returning to Nicaragua. The Board of Immigration Appeals affirmed this decision, noting the lack of specific evidence of past persecution and failure to connect their fear of persecution to the grounds outlined in Sec. 208(a) of the Immigration and Nationality Act. Additionally, the Board acknowledged that humanitarian considerations did not necessitate asylum, especially after the Sandinistas lost power in Nicaragua's recent elections.

The standard for asylum requires that a reasonable person in the applicants' situation would fear persecution, which is easier to establish than the more stringent requirement of showing a clear probability of persecution for withholding of deportation. The Board's findings are reviewed for substantial evidence, which means they must be supported by the evidence presented and be reasonable. The Board's conclusions about the applicants' ineligibility for asylum were upheld, as their fears were deemed neither well-founded nor reasonable.

Although Chang may be eligible for asylum, he did not demonstrate entitlement as a matter of discretion. The Board affirmed that humanitarian considerations did not warrant asylum based on past persecution, and the Attorney General's decision regarding asylum must be upheld unless proven arbitrary or an abuse of discretion, which Chang did not establish.

A party seeking withholding of deportation faces a heavier burden, as established in Cardoza-Fonseca. The denials of asylum for petitioners Rojas, Alvarado-Garcia, and Duarte-Montoya are upheld, and further discussion regarding their cases is unnecessary. In Chang's case, despite potentially meeting the burden for asylum due to a well-founded fear of persecution, he failed to provide sufficient evidence to demonstrate the clear probability of persecution required for withholding of deportation. All four petitioners objected to the Board's administrative notice of Nicaragua's government change; however, the cases were sufficiently resolved on existing records, negating the need to address this issue. As an alternative, the petitioners requested remand to present additional evidence regarding post-election conditions under the Sandinistas, but they did not demonstrate that the evidence was material or explain the failure to produce it initially. Consequently, the Board of Immigration Appeals' decisions to deny asylum and withholding of deportation for all four petitioners are affirmed. The Board should rely on well-regarded sources, such as the U.S. State Department, for information on foreign political situations.