Maria G. Miranda v. INS ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 97-1526
___________
Maria Guadalupe Miranda, *
*
Petitioners, *
* Petition for Review of an
Order of
v. * the United States
Immigration and
* Naturalization Service
United States Immigration and *
Naturalization Service, *
*
Respondent. *
___________
Submitted: October 20, 1997
Filed: March 20,
1998
___________
Before McMILLIAN, LAY and BEAM, Circuit Judges.
___________
McMILLIAN, Circuit Judge.
Petitioner, Maria Guadalupe Miranda, a 29-year-old
native and citizen of El Salvador, who entered the United
States in 1992, petitions for judicial review of the
decision of the Board of Immigration Appeals (BIA)
finding her ineligible for asylum or withholding of
deportation. In re Miranda, No. A70 190 678 (B.I.A.
Feb. 3, 1997) (hereinafter “BIA Order”) (dismissing
appeal from oral decision of the immigration
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judge (IJ), id. (June 22, 1996) (hereinafter “IJ
Decision”)). Petitioner seeks relief on the ground that
the BIA erroneously concluded that she failed to
establish persecution or a well-founded fear of
persecution on account of her political opinion. For the
reasons set forth below, we deny the petition and affirm
the decision of the BIA.
Background
Petitioner entered the United States without
inspection on July 8, 1992, near San Ysidro, California.
Following her apprehension by immigration authorities,
deportation proceedings were commenced against her. She
sought and received a change of venue, and her case was
heard in Council Bluffs, Iowa. At her deportation
hearing, petitioner conceded deportability. She applied
for political asylum on the ground that she was being
persecuted in her home country, El Salvador, because of
her political opinions. As the only witness at her
deportation hearing, she testified to the following
facts. While petitioner was working in the coffee fields
near her hometown of LaLibertad during the 1980s, members
of the Frente Farabundo Marti Para La Liberacion Nacional
(FMLN) tried to recruit her on an average of eight to ten
times per season. The FMLN members used threats to
persuade her to join them. She refused to join, stating
to the FMLN members that she supported the government of
El Salvador. The threats continued, causing her to move
to San Salvador in 1989. Petitioner remained in San
Salvador for two to three years, until she left for the
United States in 1992. After reaching the United States,
she learned, through contacts with her mother in
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El Salvador, that FMLN members continued to seek her
whereabouts, notwithstanding a peace agreement signed in
El Salvador in 1992.
The IJ found petitioner not eligible for either
asylum or withholding of deportation. Applying the
principles set forth in INS v. Elias-Zacarias, 502 U.S.
478 (1992), the IJ found that petitioner had failed to
present evidence that her alleged persecutors, members of
the FMLN, were motivated to punish petitioner because of
her political opinion. The IJ recognized that, for
several years during the war in
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El Salvador, petitioner resisted pressure to join the
FMLN. The IJ reasoned, however, that
[h]er bald statement that she refused [to join]
because she supported the Salvadoran government
is insufficient to establish a political basis,
or motivation for her actions. [Petitioner] has
no history of political expression which
provoked the FMLN’s reaction to her. She was
not active in any political movement.
Therefore, since she never participated or was
involved in any political movement, the
guerrillas would not have sought her out because
of her political beliefs or opinions because in
fact she never expressed any. The most logical
conclusion is that they wanted another recruit
to be included in their forces.
IJ Decision at 5.
The IJ further noted that the political events in El
Salvador during the 1980s, which formed the background
for petitioner’s claim of political persecution, had been
superseded by numerous political changes including the
peace agreement signed in 1992, elections in 1994, and a
significant decrease in political violence since
petitioner left El Salvador. Id. at 5-7. Finally, the
IJ noted that, although petitioner’s testimony was
credible, there were some inconsistencies and ambiguities
in her own recollections. Id. at 7. In addition to
denying petitioner’s application for political asylum and
her request for withholding of deportation, the IJ
granted her voluntary departure. Id.
Petitioner appealed the IJ’s decision to the BIA.
The BIA agreed with the IJ that petitioner had failed to
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establish eligibility for asylum under Elias-Zacarias.
BIA Order at 2. The BIA further concluded that
petitioner could not establish eligibility for
withholding of deportation, noting its more onerous
standard of proof than eligibility for asylum. Id. at 3
(citing In re Mogharrabi, 19 I. & N. Dec. 439 (B.I.A.
1987)). The
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BIA dismissed petitioner’s appeal, and she filed the
present petition for review pursuant to 8
1
U.S.C.§ 1105a(a).
Discussion
The issue before us in the present case is whether
reasonable, substantial, and probative evidence in the
record as a whole supports the BIA’s conclusion that
petitioner failed to prove her eligibility for asylum.
See Feleke v. INS, 118 F.3d 594, 598 (8th Cir. 1997)
(“The Board’s decision that an alien is not eligible for
asylum must be upheld if supported by reasonable,
substantial and probative evidence on the record
considered as a whole.”) (citing Nyonzele v. INS, 83 F.3d
975, 981 (8th Cir. 1996)). In making that determination,
we may not reweigh the evidence. Id.
The Attorney General has discretion to grant asylum
to a “refugee.” 8 U.S.C. § 1158(b)(1). A “refugee” is
defined as an alien who is unwilling to return to his or
1
The jurisdictional statute, 8 U.S.C. § 1105a, was repealed under § 306(b) of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub.
L. No. 104-208, 110 Stat. 3009 (Sept. 30, 1996), as amended by Pub. L. 104-302, 110
Stat. 3656 (Oct. 11, 1996). The repeal became effective on April 1, 1997, under
§ 309(a) of the IIRIRA. With respect to final orders of deportation entered after
October 31, 1996, and before April 1, 1997, § 309(c)(4)(C) of the IIRIRA provides “the
petition for judicial review must be filed not later than 30 days after the date of the final
order of exclusion or deportation,” and § 309(c)(4)(D) provides “the petition for review
shall be filed with the court of appeals for the judicial circuit in which the administrative
proceedings before the special inquiry officer or immigration judge were completed.”
Because petitioner filed her petition for judicial review within 30 days after the BIA’s
deportation decision of February 3, 1997, and Council Bluffs, Iowa, is within our circuit,
the petition was timely filed and jurisdiction is proper in this court.
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her home 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.” Id. § 1101(a)(42)(A).
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Persecution has been defined by the BIA as “either a
threat to the life or freedom of, or the infliction of
suffering and harm upon, those who differ in a way
regarded as offensive.” In re Acosta, 19 I. & N. Dec.
211, 222 (B.I.A. 1985) (adopting the pre-1980 definition
of “persecution” for purposes of interpreting 8 U.S.C.
§ 1101(a)(42)(A)).2 In In re Acosta, the BIA specified
two required components of “persecution” under 8 U.S.C.
§ 1101(a)(42)(A): first, the harm or suffering had to be
inflicted upon the individual in order to punish him or
her for possessing a belief or characteristic the
persecutor sought to overcome; and, second, the harm or
suffering had to be inflicted either by the government of
a country or by persons or an organization that the
government was unable or unwilling to control. Id.
Without those components, the BIA noted, the term
“persecution,” as used in § 1101(a)(42)(A), “does not
embrace harm arising out of civil strife or anarchy.”
Id. at 223. In order to prove a well-founded fear of
persecution, the BIA further explained, the petitioner
must establish each of the following four elements:
(1) the alien possesses a belief or a
characteristic the persecutor seeks to overcome
in others by means of punishment of some sort;
(2) the persecutor is already aware, or could
2
We review the BIA’s legal determinations de novo, according substantial
deference to its interpretation of the statutes and regulations it administers. Vue v. INS,
92 F.3d 696, 699 (8th Cir. 1996) (citing Chevron U.S.A., Inc. v. Natural Resources
Defense Council, 467 U.S. 837, 842-44 (1984)). If the agency’s interpretation is
reasonable, we cannot replace it with our own judgment. Franklin v. INS, 72 F.3d 571,
572 (8th Cir. 1995) (citing Arkansas AFL-CIO v. FCC, 11 F.3d 1430, 1441 (8th Cir.
1993)), cert. denied, 117 S. Ct. 105 (1996).
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easily become aware, that the alien possesses
this belief or characteristic; (3) the
persecutor has the capability of punishing the
alien; and (4) the persecutor has the
inclination to punish the alien.
Id. at 227; In re Mogharrabi, 19 I.& N. Dec. at 446.
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In Ghasemimehr v. INS, 7 F.3d 1389, 1390 (8th Cir.
1993), this court held that proof of a well-founded fear
of persecution requires showing both that the fear is
subjectively genuine and that the fear is objectively
reasonable. To prove objective reasonableness, the alien
must show, based upon credible, direct, and specific
evidence, that a reasonable person in the same
circumstances would fear persecution if returned to the
petitioner’s native country. Id. The fear must have a
basis in reality and must be neither irrational nor so
speculative or general as to lack credibility. Id. at
1390-91. “To overcome the BIA’s finding that [the
petitioner] lacked a well-founded fear of persecution,
[the petitioner] must show ‘the evidence he [or she]
presented was so compelling that no reasonable factfinder
could fail to find the requisite fear of persecution.’”
Id. at 1390 (citing Elias-Zacarias, 502 U.S. at 483-84).
The Supreme Court held, in Elias-Zacarias, 502 U.S.
at 482-84, that evidence of a guerilla organization’s
attempt to coerce a person into joining its military
forces does not, without more, establish persecution on
account of political opinion; nor does it, alone,
establish a well-founded fear of persecution on account
of political opinion. The Supreme Court held that such
evidence is insufficient because “[e]ven a person who
supports a guerilla movement might resist recruitment for
a variety of reasons–fear of combat, a desire to remain
with one’s family and friends, a desire to earn a better
living in civilian life, to mention only a few.” Id.
at 482. The Supreme Court emphasized that, in the
immigration context, the persecution must be on account
of political opinion and, moreover, that political
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opinion must be the victim’s, not the persecutor’s. Id.
In the present case, the IJ found, and the BIA
agreed, that petitioner had failed to meet her burden to
prove persecution or a well-founded fear of persecution
on account of political opinion. We agree. While
petitioner testified that the FMLN members threatened to
kill her after she told them that she supported the
government, the evidence suggests that her support for
the government was not the reason for their efforts to
recruit her or their threats. Furthermore, at no time
did FMLN ever single
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out petitioner or demonstrate an inclination to punish
her. According to petitioner’s own testimony, FMLN never
sought to overcome her beliefs; to the contrary, it
appeared that they tried to recruit her because of her
relatively young age. Also, nothing in the record
indicates that any of the coffee pickers joined the FMLN,
that any harm befell others who, like petitioner, refused
to join, or that any FMLN member ever attempted to kill
her or the others. Nor is there any evidence that
members of the FMLN ever threatened a member of
petitioner’s family. Finally, although petitioner
testified that she believed the threats to be serious,
she continued for several years to return to the coffee
fields to work. While petitioner may have needed the
work, her actions were not entirely consistent with the
fear for her life that she allegedly experienced. In
sum, based on the record before us, we conclude that the
evidence is not so compelling that no reasonable
factfinder could fail to find the requisite persecution
or well-founded fear of persecution.
Conclusion
Because reasonable, substantial, and probative
evidence in the record as a whole supports the BIA’s
conclusion that petitioner failed to meet her burden to
prove persecution or a well-founded fear of persecution,
we deny the relief petitioner seeks. The petition is
denied, and the decision of the BIA is affirmed.
A true copy.
Attest:
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CLERK, U.S. COURT OF APPEALS, EIGHTH
CIRCUIT.
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