Misola v. INS

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
FRANCISCO CHAVEZ MISOLA,
Petitioner,
v.
No. 97-1929
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Respondent.
On Petition for Review of an Order
of the Board of Immigration Appeals.
(A72-418-366)
Submitted: March 31, 1998
Decided: September 2, 1998
Before WILKINS and NIEMEYER, Circuit Judges, and HALL,
Senior Circuit Judge.
_________________________________________________________________
Petition denied by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Paul Shearman Allen, PAUL SHEARMAN ALLEN & ASSO-
CIATES, Washington, D.C., for Petitioner. Frank W. Hunger, Assis-
tant Attorney General, David M. McConnell, Assistant Director,
Office of Immigration Litigation, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Respondent.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Petitioner Francisco Chavez Misola, a citizen of the Philippines,
seeks review of a Board of Immigration Appeals (BIA) decision and
order affirming the immigration judge's decision finding Misola
deportable, denying his application for asylum1 and withholding
deportation,2 and granting voluntary departure. Misola claims that he
was persecuted while in the Philippines and that he has a well-
founded fear of persecution if he returns to the Philippines. After
review, we deny the petition.
To be eligible for refugee status and discretionary asylum, Misola
must show a reasonable possibility of persecution, or that a reason-
able person in similar circumstances would fear persecution on
account of his political beliefs, membership in a particular social
group, or one of the other enumerated provisions of the statute. 8
U.S.C.A. §§ 1101(a)(42)(A), 1158 (West Supp. 1998); Huaman-
Cornelio v. Board of Immigration Appeals, 979 F.2d 995, 999 (4th
Cir. 1992). Factual determinations regarding an alien's statutory eligi-
bility for asylum are reviewed for substantial evidence. 8 U.S.C.A.
§ 1105a(a)(4) (West Supp. 1998); INS v. Elias-Zacarias, 502 U.S.
478, 481 (1992). The standard is extremely deferential, requiring a
reviewing court to uphold the BIA's denial unless an alien demon-
strates that the evidence presented was "so compelling that no reason-
able factfinder could fail to find the requisite fear of persecution." Id.
at 483-84; Huaman-Cornelio, 979 F.2d at 999. Fear which may be
well-founded, but which does not arise on account of an applicant's
race, religion, nationality, membership in a social group, or because
of political opinion, do not qualify an alien as a refugee. See Matter
of Mogharrabi, 19 I. & N. Dec. 439, 447 (BIA 1987).
_________________________________________________________________
1 See 8 U.S.C.A. § 1158(a) (West Supp. 1998).
2 See 8 U.S.C.A. § 1253(h) (West Supp. 1998).
2
Misola asserts that based on the evidence of record, a reasonable
factfinder would have to conclude that he has a well-founded fear of
persecution in the Philippines, and that the BIA abused its discretion
in reaching the opposite conclusion. We find, however, that substan-
tial evidence supports the BIA's affirmance of the immigration
judge's finding that Misola failed to meet his statutory burden. Misola
testified at the hearing held by the immigration judge that he was
being persecuted by the New People's Army (NPA) throughout the
Philippines. Specifically, he claims that the NPA extorted money
from him and his fellow landowners, and that those who failed to
cooperate, including Misola's cousin, were threatened or killed.3
According to Misola, he received a note with a black ribbon around
it from a small boy. He said the ribbon indicated a death threat. The
note requested that Misola pay fifty thousand pesos and gave instruc-
tions for its delivery. After receiving the letter, Misola abandoned his
farm and left town. He testified that he did not want to pay the money
because he did not want to support the communists. He also attested
that he did not contact the police or the military because they could
not handle the NPA in his area because they were overworked. He
testified that he believes that he is on a "black list" and that if the
NPA ever found him, they would kill him.
Misola was vague as to his whereabouts during the eighteen
months after he left his farm and before he came to the United States,
although he did admit that he remained in the Philippines during this
time. He further admitted that during that eighteen-month period, he
received no threats, despite the active presence of the NPA in the var-
ious areas in which he lived.
The immigration judge and the BIA found Misola unable to satisfy
the standards for granting asylum or withholding deportation. We
agree with the BIA that while Misola may have had a well-founded
fear of harm from the NPA for refusing to pay them money, there is
no evidence that such harm was politically motivated. In fact, Misola
_________________________________________________________________
3 Misola attested that his cousin, a farm owner like himself, was asked
to contribute a sum of money to the NPA, that he refused to pay the
money, went into hiding, and was found two days later with his head cut
off. Misola testified that this was the usual manner in which the NPA
killed those who failed to comply with their tax demands.
3
specifically denied that he was involved in any political group; he tes-
tified that he was not active in politics, and did not support any politi-
cal actions or groups. He described himself as a"law-abiding citizen"
who regularly paid his taxes.
There is no evidence that Misola was singled out by the NPA
because of his political views or his membership in a social group.
Misola failed to establish that those attempting extortion were moti-
vated by their victims' real or perceived political opinion. Misola tes-
tified that the NPA sought money for war taxes from landowners,
business people and peasants alike. The record evidence, by way of
Misola's testimony as well as the documentary evidence presented,
reveals that the purpose for the extortion was for the NPA to obtain
financing to further its cause. Moreover, while Misola did not support
the goals of the NPA, there is no evidence in the record that his views
were known to the NPA. Likewise, while Misola claims on appeal
that his fear of persecution was based also upon his status as a
wealthy landowner, and that the NPA targeted the wealthy as mem-
bers of a social group, his own testimony at the hearing before the
immigration judge that the NPA also sought money and support from
the peasants in the Philippines cuts against this claim.
The existence of a generalized political motive of the NPA is insuf-
ficient to establish Misola's fear of persecution on account of political
opinion under the applicable statute. See Elias-Zacarias, 502 U.S. at
482. Nor is there evidence that the NPA actually imputed any political
opinion to Misola and sought to persecute him based on that imputed
opinion,4 other than background evidence constituting pronounce-
ments of private organizations, which we find to be insufficient by
itself to overturn the BIA's judgment. See M.A. v. INS, 899 F.2d 304,
313 (4th Cir. 1990) (in banc).
We conclude that substantial evidence supports the immigration
judge's finding that Misola did not meet his statutory burden. While
the evidence is undisputed that the NPA is operating in parts of the
Philippines and are known to make the type of threats which Misola
has described, no threats were made to him after he left his farm,
despite the fact that he remained in various parts of the Philippines
_________________________________________________________________
4 See, e.g., Sangha v. INS , 103 F.3d 1482, 1489 (9th Cir. 1997).
4
for eighteen months after he received the note tied with the black rib-
bon. Misola also admitted that his sisters continue to live in the Phil-
ippines without incident. Further, Department of State country reports
in evidence, which reports were considered by the immigration judge,
reveal that the NPA is diminishing in size and resources, and in its
ability to carry out threats. While there are certainly areas in the Phil-
ippines where individuals are vulnerable to the NPA, the evidence
supports the conclusion that the Philippine government is able to con-
trol the NPA in other areas. Accordingly, the record supports the
immigration judge's finding that Misola did not establish that his fear
of persecution by the NPA is countrywide. See Matter of Acosta, 19
I. & N. Dec. 211, 235 (BIA 1985).
The record does not compel a finding that the immigration judge
erred in concluding that Misola failed to establish a well-founded fear
of persecution on account of political opinion or any of the other
grounds for which asylum may be granted. See Elias-Zacarias, 502
U.S. at 483-84; Huamon-Cornelio, 979 F.2d at 999. Misola failed to
establish that the NPA will persecute him because of his political
opinion or his membership in a social group, or that he faces any
harm beyond the political unrest in the Philippines itself. See Elias-
Zacarias, 502 U.S. at 483; M.A., 899 F.2d at 314-15. We find that the
BIA acted reasonably in concluding that Misola failed to show that
the NPA's actions were anything other than an attempt to extort
money, and that the NPA's interest in Misola was not motivated
either by his political opinion or his status as a wealthy landowner.
Because Misola failed to meet the less stringent burden of proof
required for asylum, he cannot meet the higher standard for proving
eligibility for withholding of deportation under 8 U.S.C.A. § 1253(h)
(West Supp. 1998). See INS v. Cardoza-Fonseca , 480 U.S. 421, 431-
32 (1987); Huaman-Cornelio, 979 F.2d at 1000.
We therefore affirm the decision of the Board of Immigration
Appeals and deny the petition for review. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.
PETITION DENIED
5