Rivero v. INS

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
GERMAN RIVERO,
Petitioner,
v.
No. 97-2521
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Respondent.
On Petition for Review of an Order
of the Board of Immigration Appeals.
(A70-792-822)
Submitted: September 16, 1998
Decided: October 20, 1998
Before MURNAGHAN and HAMILTON, Circuit Judges, and
HALL, Senior Circuit Judge.
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Petition denied by unpublished per curiam opinion.
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COUNSEL
Donald L. Schlemmer, Washington, D.C., for Petitioner. Frank W.
Hunger, Assistant Attorney General, William J. Howard, Senior Liti-
gation Counsel, Edward J. Duffy, Office of Immigration Litigation,
Civil Division, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Respondent.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
German Rivero is a native and citizen of Bolivia living in this
country. He petitions for review of a final order of the Board of Immi-
gration Appeals (BIA or Board) denying his application for asylum
and withholding of deportation. Because substantial evidence sup-
ports the BIA's decision, we deny the petition.
The Immigration and Nationality Act (INA) authorizes the Attor-
ney General, in her discretion, to confer asylum on any refugee. See
8 U.S.C.A. § 1158(a) (West Supp. 1998). The Act defines a refugee
as a person unwilling or unable to return to his native country "be-
cause 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); see also M.A. v. INS, 899 F.2d 304, 307 (4th Cir. 1990) (en
banc). The well-founded fear standard contains both a subjective and
an objective component. See INS v. Cardoza-Fonseca, 480 U.S. 421,
430-32 (1987). The subjective element requires a genuine fear on the
part of the alien. See Figeroa v. INS, 886 F.2d 76, 79 (4th Cir. 1989).
The objective component requires credible, specific, and direct evi-
dence supporting a reasonable fear that the alien faces persecution.
See id. This court must uphold the Board's asylum denial unless the
alien demonstrates that the "evidence he presented was so compelling
that no reasonable factfinder could fail to find the requisite fear of
persecution" on a relevant ground. INS v. Elias-Zacarias, 502 U.S.
478, 483-84 (1992). See also Cruz-Diaz v. INS , 86 F.3d 330, 331-32
(4th Cir. 1996). The standard for withholding of deportation is more
stringent than that for granting asylum and requires an applicant to
demonstrate a "clear probability of persecution." Cardoza-Fonseca,
480 U.S. at 430. We review the BIA's decision for substantial evi-
dence. See Huaman-Cornelio v. Board of Immigration Appeals, 979
F.2d 995, 999 (4th Cir. 1992). Accordingly, the decision may be "re-
2
versed only if the evidence presented by [the applicant] was such that
a reasonable factfinder would have to conclude that the requisite fear
of persecution existed." Elias-Zacarias, 502 U.S. at 481 (citation
omitted).
On appeal, Rivero contends that he was persecuted because of his
political opinion and membership in a social group based upon the
following facts. On August 18, 1988, Rivero and his co-pilot discov-
ered that their plane's cargo contained rifles and chemicals that they
thought were used to manufacture cocaine. Rivero reported the con-
traband to Bolivian customs officials, accused the officials of a cover-
up, engaged in an argument with officials, and was ultimately told to
fly the plane or his "life would be made tough."1 The case was then
turned over to the airport police, which he also accused of wrong-
doing, and ultimately the national police. After the national police
interrogated him and slapped him in the face, Rivero was released that
day. A few days later Rivero had another confrontation with the air-
port police and was arrested and taken to a substation where he was
insulted, tied to a chair, and beaten. He suffered a broken nose and
leg and was treated at a medical facility. Thereafter, he stayed with
his father in an outlying town without further incident for approxi-
mately five months prior to coming to the United States.
Although Rivero's fear of returning to Bolivia is certainly under-
standable, he has failed to show he was persecuted on account of race,
religion, nationality, membership in a particular social group, or polit-
ical opinion, as required to obtain asylum. See Cardoza-Fonseca, 480
U.S. at 481; Cruz-Diaz, 86 F.3d at 331. The evidence indicates that
Rivero's troubles stem from his occupation as a pilot and his dissatis-
faction with a perceived contraband problem and cover-up. Moreover,
he was able to live in Bolivia for five months without incident while
recuperating in his father's town. An alien's choice of employment
may not serve as a basis for a "social group" persecution claim as it
does not represent an immutable characteristic. See Matter of Acosta,
19 I. & N. Dec. 211, 234 (BIA 1985) ("[T]he internationally accepted
concept of a refugee simply does not guarantee an individual a right
to work in the job of his choice."). Also, an asylum applicant must
demonstrate more than a showing of a threat of persecution in a par-
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1 (A.R. 36).
3
ticular place within a country. See id. at 235. Finally, the Board ques-
tioned Rivero's credibility because his testimony at the hearing
conflicted in several respects with his application and related docu-
ments.
Thus, because we do not find that Rivero demonstrated evidence
so compelling that no reasonable factfinder could fail to find the req-
uisite fear of persecution on a relevant ground, see Elias Zacarias,
502 U.S. at 483-84; Cruz-Diaz, 86 F.3d at 331-32, and because the
Board's decision is supported by substantial evidence, we affirm the
decision of the Board and deny the petition for review.2 See Huaman-
Cornelio, 979 F.2d at 999. We dispense with oral argument because
the facts and legal contentions are adequately presented in the materi-
als before the court and argument would not aid the decisional pro-
cess. We also deny the Government's motion to dismiss.
PETITION DENIED
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2 We also decline to address Rivero's claim that international law
requires the INS to grant him refugee status as Congress has created a
comprehensive system to allow refugees to stay in the United States. See
Committee of U.S. Citizens Living in Nicaragua v. Reagan, 859 F.2d
929, 939 (D.C. Cir. 1988) (where a controlling executive or legislative
act exists, customary international law is inapplicable). See also The
Paquete Habana, 175 U.S. 677, 700 (1900).
4