Aparicio v. INS

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
GERMAN APARICIO; ROSA AMELIA
CASTRO,
Petitioners,
v. No. 97-2752
U. S. IMMIGRATION &
NATURALIZATION SERVICE,
Respondent.
On Petition for Review of an Order
of the Board of Immigration Appeals.
(A71-799-672, A71-799-659)
Submitted: July 14, 1998
Decided: August 19, 1998
Before ERVIN, HAMILTON, and LUTTIG, Circuit Judges.
_________________________________________________________________
Petition denied by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
John William O'Leary, Washington, D.C., for Petitioners. Frank W.
Hunger, Assistant Attorney General, Richard M. Evans, Assistant
Director, Holly A. Gimbel, 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Unpublished opinions are not binding precedent in this circuit.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:
Petitioners German Aparicio and Rosa Amelia Castro, husband and
wife, seek review of an order of the Board of Immigration Appeals
(Board) affirming the decision of the immigration judge (IJ) and
denying them political asylum, 8 U.S.C.A. § 1158 (West Supp. 1998),
and withholding of deportation, 8 U.S.C.A. § 1253(h) (West Supp.
1998).
Both Aparicio and Castro are citizens of El Salvador who entered
the United States without inspection in 1991. Aparicio returned to El
Salvador on a family matter while his application for asylum was
pending, and was paroled into the United States. Aparicio's claim is
the principal one, with Castro filing as a dependent or derivative
applicant. The IJ denied the applications for asylum and withholding
of departure but granted Castro voluntary departure. The Board
affirmed the IJ, and we deny the petition for review.
I
Aparicio, born in 1936, was a farmer in El Salvador. During the
civil unrest there, one of Aparicio's sons was kidnaped by the guerril-
las. Aparicio did not see him for three years, until 1986 when he
deserted the guerrillas. The son ultimately fled to the United States
and was granted asylum. Aparicio financed his escape. The guerrillas
asked about this son's whereabouts on at least one occasion, and
demanded that Aparicio give the guerrillas food and money several
times over the next five years. In 1990, when Aparicio told the guer-
rillas he could give them nothing because all his money was tied up
in the farm, they burned part of the farm and painted the initials of
the group on the barn. A year later, the guerrillas demanded a large
sum of money and said they would return in three weeks for the
money. Aparicio fled the country because he felt he could not comply
with the guerrillas' demands and would eventually be killed.
2
In 1992, a former companion of Aparicio's and mother of two of
his children was killed at his house when she refused to give money
to the guerrillas. Aparicio returned to El Salvador for a month to settle
her affairs and arrange for the care of their children. While there, he
did not walk around freely because he feared he would be killed by
the guerrillas. Aparicio testified before the IJ that, while he is aware
that a peace accord was signed in El Salvador, he does not believe
that the guerrillas who have taken over his land would give it back
to him.
The IJ found that Aparicio was a credible witness, but that Aparicio
presented no evidence that the guerrillas sought to punish him
because of his association with the son who deserted their ranks, or
that his experience with the guerrillas was different than others who
lived in the area. The IJ also concluded that Aparicio presented no
evidence that his fear of persecution extended throughout all of El
Salvador, so that Aparicio could have relocated to another area of the
country. The Board agreed with the IJ's ruling, finding that Aparicio
and Castro were never harmed by the guerrillas, whose purpose in
intimidating and demanding money was to further the cause of their
organization. The Board found as well that petitioners presented no
evidence the guerrillas still exist in El Salvador and are likely to mis-
treat those who refused to cooperate or who are related to deserters.
II
The Immigration and Nationality Act (the Act), 8 U.S.C.A.
§§ 1101-1537 ( West 1970 & Supp. 1998), provides two ways to
avoid deportation for an otherwise deportable alien who claims he
will be persecuted on returning to his home country. First, an alien
can apply for asylum. 8 U.S.C. § 1158(a). The Attorney General has
authority, under § 1158(b)(1), to confer asylum if she concludes the
alien is a refugee as defined by the Act. A refugee is anyone unwilling
or unable to return to his native 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 opin-
ion. . . ." 8 U.S.C.A. § 1101(a)(42)(A) (West Supp. 1998). The "well-
founded fear of persecution" standard contains both a subjective and
an objective component. Presenting candid, credible, and sincere tes-
timony, which demonstrates a genuine fear of persecution, satisfies
3
the subjective element. Figeroa v. INS, 886 F.2d 76, 79 (4th Cir.
1989). The objective element requires a showing of specific, concrete
facts that would lead a reasonable person in like circumstances to fear
persecution. Huaman-Cornelio v. Board of Immigration Appeals, 979
F.2d 995, 999 (4th Cir. 1992). The fear must be appreciably different
from the dangers faced by the alien's fellow citizens. Figeroa, 886
F.2d at 80.
An alien claiming persecution can also avoid deportation by apply-
ing for "withholding of deportation," 8 U.S.C.A. § 1253(h) (West
Supp. 1996).1 Under this provision, the Attorney General will not
deport an alien upon finding that the alien's life or freedom would be
threatened there because of his race, religion, nationality, membership
in a social group, or political opinion. The alien must demonstrate a
clear probability of persecution based on one of these factors. INS v.
Cardoza-Fonseca, 480 U.S. 421, 430 (1987). If an alien is unable to
establish his right to asylum, he will be unable to meet this stricter
standard for withholding of deportation. Huaman-Cornelio, 979 F.2d
at 1000.
This court must uphold the Board's decision dismissing appeal of
the IJ's ruling if it is supported by "reasonable, substantial, and proba-
tive evidence on the record considered as a whole. .. ." 8 U.S.C.A.
§ 1105(a)(4) (West Supp. 1998).2 The Board's ruling that Aparicio
and Castro are not entitled to asylum cannot be reversed unless we
conclude that the evidence presented was so compelling no reason-
able fact finder could fail to perceive the requisite fear of persecution.
INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992).
_________________________________________________________________
1 Aparicio and Castro were in exclusion proceedings before April 1,
1997, the effective date of the Illegal Immigration Reform Immigrant
Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat.
3009. Therefore, under the transitional rules contained in § 309(c)(1) of
the IIRIRA, the amendments to the Act do not apply.
2 We note that 8 U.S.C. § 1105(a)(4) was repealed by the IIRIRA, and
replaced with 8 U.S.C.A. § 1252(b)(4) (West Supp. 1998). Again,
because this case was in transition at the time the IIRIRA was passed,
8 U.S.C. § 1105(a)(4) is still applicable under the terms of the transi-
tional rules contained in § 309(c)(4) of the IIRIRA.
4
III
After reviewing the briefs and administrative record, we conclude
that Aparicio and Castro have not met this substantial burden. The
evidence supports the Board's conclusion that the guerrillas wanted
money to further their cause. Aparicio and Castro were not threatened
or mistreated because of membership in a particular social group or
because of their political beliefs, "any more than any other citizen of
El Salvador who participated in or refused to participate in the activi-
ties of . . . the guerrillas . . . ." Cruz-Diaz v. INS, 86 F.3d 330, 331
(4th Cir. 1996). Therefore, Aparicio and Castro failed to establish past
persecution for one of the statutory factors. Nor have they established
a well-founded fear of persecution upon their return to El Salvador,
lacking any concrete proof to support their subjective fear. We uphold
the Board's decision denying asylum under 8 U.S.C.§ 1158. More-
over, since they have not established their eligibility for asylum, they
cannot satisfy the higher standard for withholding of deportation
under 8 U.S.C. § 1253(h). Huaman-Cornelio , 979 F.2d at 1000. We
deny the petition for review. 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.
PETITION DENIED
5