Cruz-Guevara v. INS ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JOSE RENE CRUZ-GUEVARA,
Petitioner,
v.
No. 97-2739
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Respondent.
On Petition for Review of an Order
of the Board of Immigration Appeals.
(A71-799-698)
Submitted: April 7, 1998
Decided: May 19, 1998
Before ERVIN and MICHAEL, Circuit Judges, and
PHILLIPS, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Donald L. Schlemmer, Washington, D.C., for Petitioner. Frank W.
Hunger, Assistant Attorney General, Brenda E. Ellison, Senior Litiga-
tion Counsel, Pauline Terrelonge, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Jose Rene Cruz-Guevara petitions for review of an order of the
Board of Immigration Appeals ("the Board") denying his application
for asylum and withholding of deportation but granting voluntary
departure. Because substantial evidence supports the Board's deci-
sion, we affirm.
Cruz-Guevara, a native and citizen of Honduras, entered the United
States without inspection in late December 1988 and again in the
summer of 1991. He concedes his deportability. Following a hearing,
an Immigration Judge denied Cruz-Guevara's petition for asylum and
withholding of deportation but granted his application for voluntary
departure. The Board reviewed the claims and dismissed his appeal
concluding that Cruz-Guevara did not demonstrate a well-founded
fear of persecution because of his political opinion and social mem-
bership. Cruz-Guevara timely petitions this court for review of the
Board's order.
Cruz-Guevara alleges that in 1988 while living in Honduras, in a
town bordering El Salvador, a rebel group, the Cinchoneros,
attempted twice to recruit him and threatened to kill him or use force
if he refused. He maintained that two members of his party, the
National Party, had been killed for refusing to cooperate with the Cin-
choneros. Cruz-Guevara testified that the Cinchoneros forcibly
recruited him once and detained him for a week. Soon after he
escaped, Cruz-Guevara fled to the United States. Although Cruz-
Guevara stayed in the United States for two years, he did not apply
for asylum. Cruz-Guevara maintains that he returned to Honduras in
December 1990, believing that the Cinchoneros forgot about him or
were no longer active. He remained in Honduras for four months
without difficulty. When his father died, however, members of the
Cinchoneros again threatened to kill him if he refused to join them
2
and demanded food and money. After convincing the Cinchoneros
that he needed time to mourn his father's death, Cruz-Guevara again
fled to the United States. Cruz-Guevara believes that the Cinchoneros
will kill him if he returns to Honduras having escaped from them
twice.
An alien qualifies for asylum if he is unable or unwilling to return
to the country of his nationality "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. 1997). To demonstrate a
"well-founded fear of persecution," an individual must show that a
reasonable person under these circumstances would fear persecution
and that the fear has some basis "in the reality of the circumstances"
validated with "specific, concrete facts." Huaman-Cornelio v. Board
of Immigration Appeals, 979 F.2d 995, 999 (4th Cir. 1992). Petitioner
must also show his fear of persecution stems from one of five catego-
ries of persecution listed in the Act. See id. at 999-1000.
We must uphold the board's decision if it is supported by substan-
tial evidence from the record as a whole. See Huaman-Cornelio, 979
F.2d at 999. We reverse the Board only if the evidence "was so com-
pelling that no reasonable factfinder could fail to find the requisite
fear of persecution." INS v. Elias-Zacarias , 502 U.S. 478, 483-84
(1992). We also note that to qualify for withholding of deportation,
an alien must prove a probability of persecution, a more stringent
standard than a well-founded fear of persecution. See Huaman-
Cornelio, 979 F.2d at 1000.
We conclude that substantial evidence supports the Board's finding
that Cruz-Guevara failed to establish past persecution and a well-
founded fear of future persecution. There is no evidence that Cruz-
Guevara was ever seriously physically injured on account of his polit-
ical beliefs, including the time he was detained for a week. We agree
with the Board's conclusion that the harm Cruz-Guevara suffered
does not rise to the level of past persecution within the meaning of
the Act.
We also find no evidence of a causal connection between the Cin-
choneros' zealous recruitment of Cruz-Guevara and Cruz-Guevara's
3
political affiliations. In fact, Cruz-Guevara admitted that the Cin-
choneros did not single him out on account of his political beliefs, but
rather generally targeted young men. Given the changed conditions in
Honduras since 1991, the Board also correctly concluded that Cruz-
Guevara cannot establish a well-founded fear of future persecution.
Because Cruz-Guevara fails to meet the burden of proof for asy-
lum, he necessarily fails to meet the higher standard for withholding
of deportation under 8 U.S.C.A. § 1253(h) (West Supp. 1997). See
Huaman-Cornelio, 979 F.2d at 1000. We therefore affirm the Board's
ruling denying Cruz-Guevara asylum and withholding of deportation
but granting voluntary departure. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED
4