Jose Cigaran v. Michael Heston , 159 F.3d 355 ( 1998 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 98-1861
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Jose Cigaran and Lucia *
Requeno-de Cigaran, *
*
Petitioners, *
* Petition for Review of an Order of the
v. * Immigration and Naturalization Service.
*
Michael Heston, District Director, *
Immigration and Naturalization Service, *
and Janet Reno, Attorney General of *
the United States of America, *
*
Respondents. *
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Submitted: September 22, 1998
Filed: October 30, 1998
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Before HANSEN, BRIGHT, and MORRIS SHEPPARD ARNOLD, Circuit Judges.
___________
MORRIS SHEPPARD ARNOLD, Circuit Judge.
Jose Cigaran and Lucia Requeno-de Cigaran, his wife, are natives of El
Salvador. During his service in the El Salvadoran military and national guard,
Mr. Cigaran became acquainted with the activities of a military unit known as
Section II, members of which took opponents of the government from their homes for
interrogation and, sometimes, "elimination." Due in part to his disapproval of these
actions, Mr. Cigaran left the military and took a position as a security guard at the
University of Central America in San Salvador, an institution that was run by Jesuits.
During the course of his employment at the university, Mr. Cigaran encountered
Section II members on three separate occasions. On the first occasion, Section II
members who knew Mr. Cigaran from his national guard days attempted to enter the
campus, but Mr. Cigaran refused to allow them to do so. They accused him of leftist
sympathies and threatened that he would disappear if he did not help them.
Approximately two months later they returned, threatening that Mr. Cigaran would die
if he did not cooperate. He refused them again. Shortly after this incident, six Jesuit
priests, their housekeeper, and her daughter were all brutally murdered at the
university. The Section II members returned days later, again accusing Mr. Cigaran of
leftist sympathies and threatening him. One week later, Mr. Cigaran quit his job and
repaired to his parents' home in Lourdes, where he stayed for nearly a year. He and his
wife then fled to the United States through Mexico, entering without inspection in
1991.
Mr. Cigaran applied for political asylum, and his wife joined in his application,
relying on him as principal petitioner. The immigration judge denied the application.
The Board of Immigration Appeals (BIA) dismissed Mr. Cigaran's subsequent appeal,
holding that he had not suffered past persecution and did not have a well-founded fear
of future persecution, and was therefore not eligible for asylum. We affirm the decision
of the BIA.
I.
An alien is eligible for asylum if he or she is outside his or her own country and
"is unable ... to avail himself or herself of the protection of that country because of
persecution or a well-founded fear of persecution on account of race, religion,
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nationality, membership in a particular social group, or political opinion." See 8 U.S.C.
§ 1101(a)(42)(A). In the usual case, the critical inquiry is whether the applicant has a
well-founded fear of future persecution upon return to his or her country. To establish
such a fear, an applicant must demonstrate a fear that is both subjectively genuine and
objectively reasonable. See, e.g., Immigration and Naturalization Service v. Cardozo-
Fonseca, 480 U.S. 421, 430-31 (1987), and Hamhezi v. Immigration and Naturalization
Service, 64 F.3d 1240, 1242 (8th Cir. 1995); see also 8 C.F.R. § 208.13(b)(2).
The applicant is entitled to a presumption of a well-founded fear of future
persecution if past persecution is established, and the burden then shifts to the
Immigration and Naturalization Service to show by a preponderance of the evidence
that "conditions in the applicant's country ... have changed to such an extent that the
applicant no longer has a well-founded fear of being persecuted if he or she were to
return." See 8 C.F.R. § 208.13(b)(1)(i). Even if the INS carries this burden,
"humanitarian asylum" may be granted based on past persecution alone if that
persecution was particularly atrocious. See, e.g., Asani v. Immigration and
Naturalization Service, 154 F.3d 719, _____, 1998 WL 560265, at *2 (7th Cir. 1998),
and Matter of Chen, 20 I. and N. Dec. 16, 19 (B.I.A. 1989); see also 8 C.F.R.
§ 208.13(b)(1)(ii).
II.
Mr. Cigaran first contends that the BIA should have considered the cumulative
impact of the relevant incidents in the record to determine whether they rose to the level
of persecution, rather than considering them separately. See, e.g., Singh v. Immigration
and Naturalization Service, 134 F.3d 962, 967 (9th Cir. 1998). If the BIA had done
so, Mr. Cigaran argues, it would have to have made a finding of past persecution,
which would then have created a presumption of a well-founded fear of future
persecution, thereby shifting the burden to the INS to prove by a preponderance of the
evidence that Mr. Cigaran's fear was not well-founded. Mr. Cigaran also contends that
the INS did not meet this burden.
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Even if we assume that the law requires the kind of analysis that Mr. Cigaran
argues for, and that such an analysis would necessarily have led to a finding of past
persecution and a shifting of the burden of proof to the INS, Mr. Cigaran's appeal
would still fail. The shifting of an evidentiary burden of preponderance is of practical
consequence only in the rare event of an evidentiary tie: If the evidence that the parties
present balances out perfectly, the party bearing the burden loses. In this case,
therefore, the BIA's refusal to shift the burden to the INS injured Mr. Cigaran's
application only if the evidence was in equipoise, causing Mr. Cigaran to lose because
he had the burden of proof. There is no indication, however, that the BIA thought that
that was the case, nor can we say that, as a matter of law, the evidence was in
equipoise. In fact, the record makes it clear, in our view, that the BIA believed that the
preponderance of the evidence established that Mr. Cigaran's fear of future persecution
was not objectively reasonable, and therefore not well-founded. It is also clear to us,
as we discuss below, that the record supports that belief.
We review the BIA's findings on this matter under a "substantial evidence"
standard, and must affirm where there is evidence sufficient for a reasonable fact finder
to conclude that the alien in question lacked a well-founded fear of persecution. See,
e.g., Immigration and Naturalization Service v. Elias-Zacarias, 502 U.S. 478, 481
(1992), and Ghasemimehr v. Immigration and Naturalization Service, 7 F.3d 1389,
1390 (8th Cir. 1993) (per curiam).
Although Mr. Cigaran presented evidence that dangerous paramilitary gangs still
exist in El Salvador, there was significant evidence tending to show that the political
situation in El Salvador has changed in ways that render Mr. Cigaran's fear
unreasonable. Evidence contained in documents produced by the United States
Department of State for the Senate Committee on Foreign Relations and the House of
Representatives Committee on Foreign Affairs indicated that political violence in El
Salvador has subsided substantially in the nine years since Mr. Cigaran was threatened
by the death squads. The United States Department of State profile of asylum claims
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and country conditions for El Salvador for October, 1995, reported "no confirmed cases
of politically motivated killings" in El Salvador in 1994 and no verified cases of "forced
disappearance" in over two years. The evidence that Mr. Cigaran advanced may have
tended to show that El Salvador is a dangerous place generally, but there was also
sufficient evidence for a reasonable fact finder to conclude that his fear of future
persecution on political grounds was not reasonable.
III.
Finally, Mr. Cigaran contends that he should have been granted asylum based
on past persecution alone. "Humanitarian asylum" has been reserved for those cases
in which the past persecution suffered has been particularly atrocious. See, e.g., Rojas
v. Immigration and Naturalization Service, 937 F.2d 186, 188 (5th Cir. 1991) (denial
of humanitarian asylum upheld although applicant was arrested, beaten, fired, and
denied other employment), and Matter of Chen, 20 I. and N. Dec. at 21, (humanitarian
asylum granted where applicant was tortured, harassed, confined, and denied food and
medical attention). The incidents that Mr. Cigaran cites do not rise to the required level
of atrocity. In fact, he was only threatened; no one, as far as the record shows, ever
laid a hand on him. The BIA did not therefore err in denying him asylum based solely
on past persecution.
IV.
For the reasons stated, we affirm the decision of the BIA.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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