Alvarado-Molina v. INS ( 2002 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 00-60579
JULIO ALVARADO-MOLINA,
Petitioner,
VERSUS
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
Petition for Review of an Order
of the Board of Immigration Appeals
(A71-774-176)
February 25, 2002
Before GARWOOD, DeMOSS, and DENNIS, Circuit Judges.
PER CURIAM:*
Julio Alvarado-Molina (“Alvarado”) appeals the Board of
Immigration’s (“BIA”) dismissal of his appeal regarding his
application for asylum and for withholding of deportation. We
affirm.
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
BACKGROUND
Alvarado was a member of a rural cooperative in his native
country of Honduras. Pursuant to a land reform law, rural
cooperatives gained title to land not being used by the original
owners. In 1987, Alvarado received a portion of land from the
cooperative. As a result of his membership in the cooperative,
former land owners allegedly threatened him. Alvarado claims that
he directly or indirectly received threats on four occasions.
First, in 1987, Alvarado claims that two men employed by the former
owners of his land threatened him with death if he did not leave
the cooperative. The head of his cooperative told Alvarado not to
take the threat too seriously and that it was a “passing threat.”
Soon after this first threat, Alvarado claims to have received a
second threat that was relayed to him by a friend, from an
unidentified man who was hanging around the place where Alvarado
was constructing his home. Alvarado apparently then moved to a
nearby town. After moving to this town, Alvarado was told that one
night armed men had surrounded his completed house but never
entered or disturbed his family. Alvarado and his family then
moved into his mother-in-law’s house. Alvarado claims that this is
where he received his fourth threat in the form of two men dressed
in military uniforms. The men arrived at his mother-in-law’s house
and inquired about Alvarado’s whereabouts. After the last alleged
threat, Alvarado fled Honduras and entered the United States near
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Hidalgo, Texas, without inspection on March 8, 1991. Alvarado was
charged with entering the country without inspection in violation
of former § 241(a)(1)(B) of the Immigration and Nationality Act.
See 8 U.S.C. § 1251(a)(1)(B).
Alvarado filed an application for asylum, claiming that he
would be persecuted for his membership in a rural cooperative group
if he returned to Honduras. The Immigration Judge denied his
requests for asylum and for withholding of deportation. The BIA
dismissed Alvarado’s appeal on the grounds that he had failed to
show past persecution or a well-founded fear of future persecution
in Honduras. The BIA then gave Alvarado thirty days to voluntarily
leave the country, with that order converting automatically into an
order of deportation if he failed to depart. On appeal, Alvarado
claims that the BIA erred in denying asylum, incorrectly refused to
withhold his removal from the United States, erred in not
considering his grant of Temporary Protected Status (“TPS”) and
violated his procedural due process rights.
DISCUSSION
Standard of Review
We review the BIA’s factual findings regarding the
ineligibility of asylum under the substantial evidence standard.
See Witter v. INS, 113 F.3d 549, 552 (5th Cir. 1997) (“We will
affirm an order of deportation by the BIA if supported by
‘reasonable, substantial, and probative evidence on the record
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considered as a whole.’”). The petitioner has the burden to show
that “the evidence he presented was so compelling that no
reasonable factfinder could fail to find the requisite fear of
persecution.” I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483-84
(1992); Jukic v. INS, 40 F.3d 747, 749 (5th Cir. 1994).
Alvarado’s denial of asylum
First, Alvarado argues that the BIA erred in denying asylum.
To qualify for asylum, Alvarado must show either that he suffered
from past persecution or that he has a well-founded fear of future
persecution due to “race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C.
§§ 1101(a)(42)(A), 1158(b)(1). We have defined persecution as harm
or suffering inflicted in order to punish one for possessing some
belief or characteristic the persecutor has sought to overcome.
Faddoul v. INS, 37 F.3d 185, 188 (5th Cir. 1994). Although
physical harm is not necessary, the harm must generally deprive
some essential of life such as liberty, food, housing, or
employment. Mikhael v. INS, 115 F.3d 299, 303 n.2 (5th Cir. 1997).
While the four threats that Alvarado allegedly received may be
troubling, they do not rise to the level of past persecution. As
an initial matter, we cannot consider two of the four threats as
persecution, because Alvarado has failed to provide any evidence
that they were motivated due to his membership in a rural
4
cooperative.2 See Faddoul, 37 F.3d at 188 (requiring a connection
between the feared persecution and the alien’s race, religion,
nationality, or other qualifying characteristic). In regards to
the other two threats, they apparently came from the former
landowners who threatened Alvarado, once directly and another time
indirectly through his friend. Courts have held that mere threats
normally are not sufficient to qualify as past persecution, unless
they are so immediate and menacing as to cause significant actual
suffering or harm. See, e.g., Boykov v. INS, 109 F.3d 413, 416
(7th Cir. 1997) (stating that in a vast majority of cases “mere
threats will not, in and of themselves, compel a finding of past
persecution”); see also Lim v. INS, 224 F.3d 929, 936 (9th Cir.
2000) (refusing to find error in denial of asylum when alleged past
persecution was only a threat); Cigaran v. Heston, 159 F.3d 355,
358 (8th Cir. 1998) (same). Alvarado has failed to show that the
threats were of such a menacing and immediate nature that they
caused actual significant harm.
Alvarado also maintains that the threats establish a well-
founded fear of future persecution. The BIA offered three reasons
in rejecting this claim: (1) Alvarado’s family allegedly had been
living undisturbed in Honduras for the past ten years; (2) the
threats had occurred over ten years ago; and (3) Alvarado failed to
2
As the BIA did not address the matter, we assume, arguendo
only, that membership in a rural cooperative qualifies as one of
the grounds specified in the statute.
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show he could not relocate to another part of the country. After
reviewing the record, we find that the BIA erred in making the
first two findings. First, nothing in the record supports the
BIA’s assumption that Alvarado’s family remained in Honduras after
1991. Although his family eventually came to the United States, it
is unclear when they exactly arrived. Second, in noting that the
threat had occurred over ten years ago, the BIA made an unwarranted
assumption that the situation in Alvarado’s hometown had changed in
the intervening period. The record does not support that
assumption.
However, even if the BIA erred in making these two factual
findings, Alvarado cannot receive relief because he has failed to
show that he could not have relocated to another part of the
country. See Matter of C-A-L, 21 I. & N. Dec. 754 (BIA 197), 1997
WL 80985 (holding that a petitioner must show that he faced
country-wide persecution). Alvarado concedes that he has not
attempted to move to another area in Honduras, but he correctly
points out that if the national government is the persecutor, the
burden is on the INS to show that the persecution is limited to
only certain areas of the country. Abdel-Masieh v. INS, 73 F.3d
579, 587 (5th Cir. 1996). On the other hand, if the persecution
involves non-governmental action, the alien has the burden to show
a country-wide persecution. Lopez-Gomez v. Ashcroft, 263 F.3d
442, 445-46 (5th Cir. 2001) (“Today we hold that, at least for
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cases where the applicant does not show past persecution, when the
applicant for asylum does not demonstrate that a national
government is the persecutor, the applicant bears the burden of
showing that the persecution is not geographically limited in such
a way that relocation within the applicant’s country of origin
would be unreasonable.”); see also, Mazariegos v. Office of U.S.
Atty. General, 241 F.3d 1320, 1325-27 (11th Cir. 2001) (finding
that the BIA did not err by requiring that an alien, seeking asylum
on the basis of non-governmental persecution, show a threat of
persecution nation-wide); Etugh v. INS, 921 F.2d 36, 39 (3d Cir.
1990) (same); Cuadras v. INS, 910 F.2d 567, 571 n.2 (9th Cir. 1990)
(same).
To support his claim that the national government was
responsible for his alleged persecution, Alvarado offers primarily
only his subjective speculation, noting, for example, that the
police were unresponsive to his complaints. Mere subjective
opinion, however, is not sufficient; an alien must also provide an
objective, reasonable basis for his fear of persecution. Mikhael,
115 F.3d at 304. In short, Alvarado has not shown that the
national government is responsible for his alleged persecution, or
that he cannot move elsewhere in Honduras. Accordingly, his
failure to show past persecution or a well-founded fear of future
persecution bars his asylum claim.
Alvarado’s withholding of deportation claim
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Second, we reject his claim for withholding of deportation.
This claim requires a clear probability of persecution standard,
which is even more stringent than the well-founded fear standard
for asylum. Castillo-Rodriguez v. INS, 929 F.2d 181, 185 (5th Cir.
1991). Because Alvarado failed to meet the requirements of the
asylum claim, he necessarily cannot succeed on the withholding of
deportation claim.
Alvarado’s grant of Temporary Protected Status
Alvarado also alleges that the BIA erred by not considering
his grant of a TPS. Prior to the BIA’s decision, Honduras was
struck by Hurricane Mitch, causing the Attorney General to
designate Honduras for Temporary Protected Status.3 The initial
period was from January 5, 1999, to July 5, 2000 and was
subsequently renewed through July 5, 2002. 65 Fed. Reg. 30,438
(2000). This period was just recently extended further until July
5, 2002. 66 Fed. Reg. 23,269 (2001). Alvarado registered for TPS
within the required time frame.4 Though Alvarado never informed
the BIA of such status before it made its decision, he asserts
3
We pause to note that the granting of a TPS designation was
premised on an environmental disaster and not on a finding that
there was an armed conflict or political conflict which would pose
a threat to the national’s personal safety. The TPS designation,
therefore, does not affect the determination by the Board that
Alvarado did not suffer past persecution or have an apprehension of
future persecution. The TPS designation had nothing to do with the
political climate in Honduras.
4
It is unclear whether Alvarado has sought to renew his TPS
since the most recent extension.
8
that, through a cursory consideration of his case, it should have
been apparent that he was eligible.
Assuming Alvarado is correct in his assertion that the BIA had
constructive notice of his TPS, it would still not affect the
outcome. Under 8 U.S.C. § 1254a(a)(1)(A), the Attorney General
“may grant [an] alien temporary protected status in the United
States and shall not remove the alien from the United States during
the period in which such status is in effect.” 8 U.S.C.
§ 1254a(a)(1)(A). Alvarado would have this Court believe that the
“shall not remove” language precludes any orders to deport as well.
In other words, he would have us read “shall not remove” to mean
“shall not remove or order to remove.” Alvarado’s view, however,
is too expansive. A grant of Temporary Protected Status is just
that - temporary. It is a stay or suspension of deportation. As
such, it has the power to suspend the BIA’s order but does not
invalidate it. Cf. Gomez v. INS, 947 F.2d 660, 664-65 (2d Cir.
1991) (“[Temporary Protective Status] was designed to supplement -
rather than eviscerate or erode - well-established immigration law
concerning political asylum and withholding of deportation.”);
Augusta v. INS, 149 F.3d 1167, *2 at n. * (4th Cir. 1998) (table
case) (allowing an alien to remain in the country while under a
designation of TPS but noting that such designation does not
establish eligibility for asylum). Therefore, once Alvarado’s
protected status has expired, the order can take effect and the
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thirty-day voluntary departure period can begin.5
Alvarado’s denial of due process claim
Finally, Alvarado contends that his procedural due process
rights were violated when the BIA, in denying his asylum claim,
made two incorrect factual assumptions regarding the location of
his family and the effect of time on his persecution claim. In an
administrative proceeding, a petitioner must show substantial
prejudice to succeed on a denial of the due process claim.
Calderon-Ontiveros v. INS, 809 F.2d 1050, 1052 (5th Cir. 1986). As
mentioned above, Alvarado’s claim that the BIA did not consider the
pattern and practice of singling out rural cooperative groups is
rejected because he has failed to show that this purported
persecution existed country-wide.6
Alvarado’s motion to stay deportation
Alvarado has asked this Court to suspend his deportation in
light of his grant of TPS and also until the BIA can consider his
5
By allowing the thirty-day period to begin after the TPS has
expired, the inequities argued by Alvarado of allowing the order to
stand and toll his thirty-day period are eliminated.
6
Alvarado also offered two pieces of evidence on appeal. We
generally do not consider evidence and issues that were not
presented during the administrative hearing. Witter v. INS, 113
F.3d 549, 554 (5th Cir. 1997). Moreover, it is unclear when
Alvarado learned of the new evidence or why he didn’t present it
earlier. Alvarado is free, however, to attempt to present this
evidence in his motion to reopen the case before the BIA. 8 C.F.R.
§ 3.2(c); Meghani v. I.N.S., 236 F.3d 843, 848 (7th Cir. 2001).
10
motion to reopen his case based on new evidence. This Court has
stated that a suspension of deportation is a grant of mercy.
Perales v. Casillas, 903 F.2d 1043, 1051 (5th Cir. 1990).
“Suspension of deportation is a matter of discretion and of
administrative grace, not mere eligibility; discretion must be
exercised even though statutory prerequisites have been met.”
Hintopulos v. Shaughnessy, 353 U.S. 72, 77 (1957).
As to Alvarado’s motion to reopen, there is little statutory
guidance on the issue as the authority for such motions derives
solely from regulations promulgated by the Attorney General.
Pritchett v. INS, 993 F.2d 80, 83 (5th Cir. 1993) (citing INS v.
Doherty, 502 U.S. 314 (1992)). As such, we turn to these
regulations for guidance. Under 8 C.F.R. § 3.2, the BIA has the
power to reopen deportation proceedings under certain circumstances
but is not affirmatively required to do so. 8 C.F.R. § 3.2(a);
Pritchett, 993 F.2d at 83. This same section has a provision for
stays of deportation, stating in relevant part:
[T]he filing of a motion to reopen or a motion to
reconsider shall not stay the execution of any
decision made in the case. Execution of such
decision shall proceed unless a stay of execution
is specifically granted by the Board, the
Immigration Judge, or an authorized officer of the
Service.
8 C.F.R. § 3.2(f). It is our view, therefore, that a motion to
stay deportation, in the present case, would more properly be made
to the BIA.
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Alvarado’s motion to stay deportation due to his grant of TPS
has already been considered above. The decision was made by
Congress when it allowed such a stay and Alvarado cannot be
deported until the TPS has expired. At that time his thirty-day
voluntary departure period will begin.
CONCLUSION
Having carefully reviewed the record of this case and the
parties’ respective briefing and for the reasons set forth above,
we conclude that the BIA did not err in denying Alvarado’s claims
and that Alvarado was not denied due process. We further hold that
the BIA did not err, in the present case, by failing to recognize
Alvarado’s grant of TPS but do find that such a grant suspends the
BIA’s deportation order until the TPS has expired.
AFFIRMED.
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