Perez v. INS ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MARIO A. PEREZ,
Petitioner,
v.
No. 98-1431
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Respondent.
On Petition for Review of an Order
of the Board of Immigration Appeals.
(A70-625-443)
Submitted: August 25, 1998
Decided: October 23, 1998
Before MURNAGHAN, ERVIN, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
John William O'Leary, JOHN O'LEARY & ASSOCIATES, Wash-
ington, D.C., for Petitioner. Frank W. Hunger, Assistant Attorney
General, Richard M. Evans, Assistant Director, Ellen Sue Shapiro,
Office of Immigration Litigation, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Respondent.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Petitioner Mario A. Perez seeks review of the order of the Board
of Immigration Appeals ("the Board") affirming the decision of the
immigration judge ("IJ") and denying him political asylum and with-
holding of deportation. We affirm.
Perez is a native and national of Guatemala who entered the United
States without inspection on or about February 28, 1993. Perez lived
in a remote agricultural area in eastern Guatemala. In 1984, at the age
of 13, under threats by the government, Perez joined the civil defense
force. The purpose of the civil defense force was to protect the town
from common delinquency and guerrilla actions. For nearly eight
years, Perez patrolled his town twice a week. Between August 1992
and January 1993, Perez received three notes from guerrilla forces
warning him to leave the civil defense force or leave the country.
Other members of the civil defense force received similar threatening
letters. The local military commissioner was killed after receiving two
such letters. Perez's friend was also shot after receiving a threat.
Perez's farm was hit by a grenade which killed three cows. The local
military command informed Perez that it could not give him any pro-
tection. Fearing retribution from guerrilla forces, Perez fled Guate-
mala and sought asylum in this country.
At the hearing, the IJ found that service in a defense force and
exposure to violence as a result of that service is not a basis for asy-
lum. The IJ also found that Perez failed to show that the alleged per-
secution occurred on a country-wide basis. Thus, the IJ concluded that
Perez failed to show fear of persecution on account of political opin-
ion or membership in a social group. On appeal, the Board reviewed
the record, concurred in the IJ's conclusion and dismissed the appeal.
Our review of the Board's decision is "narrow, not broad."
Huaman-Cornelio v. Board of Immigration Appeals, 979 F.2d 995,
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999 (4th Cir. 1992). We must uphold a decision if it is supported by
substantial evidence, and reversal is appropriate only if the evidence
is so compelling that no reasonable factfinder could fail to find the
requisite fear of persecution. See INS v. Elias-Zacarias, 502 U.S. 478,
483-84 (1992). To establish eligibility for a grant of asylum, an alien
must demonstrate that he is a refugee within the meaning of the Immi-
gration and Nationality Act ("the Act"). The Act defines a refugee as
a person unwilling or unable to return to his native 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." 8 U.S.C.A. § 1101(a)(42)(A) (West Supp. 1998).
Fears which may be well-founded, but do not arise on account of an
applicant's race, religion, nationality, membership in a social group,
or because of political opinion, do not qualify an alien as a refugee.
See Matter of Mogharrabi, 19 I. & N. Dec. 439, 447 (BIA 1987).
Perez contends his participation in the civil defense force consti-
tuted membership in a protected social group. Perez concedes, how-
ever, that the INS does not generally consider policemen and soldiers
eligible for asylum based upon their employment. See, e.g., Chanco
v. INS, 82 F.3d 298, 302 (9th Cir. 1996) (current membership in mili-
tary group targeted by guerrillas does not constitute a particular social
group); Matter of Fuentes, 19 I. & N. Dec. 658 (BIA 1988). Perez
fails to show why his participation in the CDF should be treated any
differently. Nor has he shown that members of the CDF "share a com-
mon, immutable characteristic . . . that the member[s] of the group
cannot change because it is fundamental to their individual identities
or consciences." Fatin v. INS, 12 F.3d 1233, 1239-40 (3d Cir. 1993)
(quotation omitted).
Perez also contends that the alleged persecution was due to an
imputed political opinion due to his employment in the CDF. This
contention must also be rejected. Perez has failed to establish that
guerrillas or the army will persecute him because of his political opin-
ion, or one imputed to him, rather than the political opinion of the
guerrillas or because of the general violence incidental to the civil war
itself. See Cruz-Diaz v. INS, 86 F.3d 330, 332 (4th Cir. 1996). Nor
is Perez entitled to asylum merely because he allegedly faces persecu-
tion because his employment may have hindered guerrilla activities.
See Adhiyappa v. INS, 58 F.3d 261, 268 (6th Cir. 1995).
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Finally, the IJ's finding that Perez failed to show that his fear of
persecution was country-wide is supported by substantial evidence.
There is no evidence in the record that Perez would fear persecution
were he to relocate to another area of Guatemala. See Diaz-Escobar
v. INS, 782 F.2d 1488, 1493 (9th Cir. 1986) (repatriation to a country
does not force the alien to return to the village he left).
The standard for withholding of deportation is more stringent than
that for granting asylum. See INS v. Cardoza-Fonseca, 480 U.S. 421,
431-32 (1987). To qualify for withholding of deportation, an appli-
cant must demonstrate a "clear probability of persecution." Id. at 430.
As Perez has not established entitlement to asylum, he cannot meet
the higher standard for withholding of deportation.
Accordingly, we find the BIA's decision is supported by substan-
tial evidence. We therefore affirm the decision. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED
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