Morales-Canales v. INS

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
LESLY LICETT MORALES-CANALES,
Petitioner,
v.
No. 98-1092
U.S. IMMIGRATION & NATURALIZATION
SERVICE,
Respondent.
On Petition for Review of an Order
of the Board of Immigration Appeals.
(A74-152-292)
Submitted: November 30, 1998
Decided: December 29, 1998
Before MURNAGHAN and TRAXLER, Circuit Judges, and
BUTZNER, Senior Circuit Judge.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Donald L. Schlemmer, Washington, D.C., for Petitioner. Frank W.
Hunger, Assistant Attorney General, Karen Fletcher Torstenson,
Assistant Director, Linda S. Wendtland, Senior Litigation Counsel,
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Unpublished opinions are not binding precedent in this circuit.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).
_________________________________________________________________
OPINION
PER CURIAM:
Lesly Licett Morales-Canales petitions for review of a final order
of the Board of Immigration Appeals (Board) denying her application
for asylum and withholding of deportation. On appeal, she claims
that: (1) the Board violated her due process rights by failing to con-
sider all the evidence in the record; (2) the Board erred in holding that
she was not persecuted on political or social grounds; (3) the Board
erred in denying her application for withholding of deportation even
though she established a clear probability of persecution; (4) interna-
tional law supports her claims; and (5) the Board erred in denying
relief on the basis of her and her husband's credibility. Because sub-
stantial evidence supports the Board's decision, we affirm.
To establish eligibility for a grant of asylum, an alien must demon-
strate that she is a refugee within the meaning of the Immigration and
Nationality Act (Act). The Act defines a refugee as a person unwilling
or unable to return to her 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). Fears which
may be well-founded, but do 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).
For a claim of persecution based on political opinion to succeed,
the record must compel the conclusion that the alien has expressed a
political opinion, and that the alien has a well-founded fear of perse-
cution specifically because of the political opinion. See INS v. Elias-
Zacharias, 502 U.S. 478, 481-83 (1992); Chen Zhou Chai v. Carroll,
48 F.3d 1331, 1342-43 (4th Cir. 1995). The alien bears the burden of
proving that she is a refugee as defined by the Act. See 8 C.F.R.
§ 208.13(a) (1998).
2
The well-founded fear of persecution standard contains both an
objective and a subjective element. 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 element requires a showing of
specific, concrete facts which would lead a reasonable person in like
circumstances to fear persecution. See Huaman-Cornelio v. Board of
Immigration Appeals, 979 F.2d 995, 999 (4th Cir. 1992); M.A. v. INS,
899 F.2d 304, 311 (4th Cir. 1990). The alien does not need to show
that she would be singled out individually if she can show: (1) a pat-
tern or practice of persecuting groups of persons similarly situated;
and (2) her own identification with such a group such that her fear of
persecution upon return is reasonable. See 8 C.F.R. § 208.13(b)(2)
(1998).
We must uphold the Board's determination that Morales-Canales
is not eligible for asylum if the determination is"supported by reason-
able, substantial, and probative evidence on the record considered as
a whole." 8 U.S.C. § 1105a(a)(4) (1994).* We accord the Board all
possible deference. See Huaman-Cornelio, 979 F.2d at 999. The deci-
sion may be "reversed only if the evidence presented by [Morales-
Canales] was such that a reasonable fact finder would have to con-
clude that the requisite fear of persecution existed." Elias-Zacharias,
502 U.S. at 481.
Morales-Canales, who entered the United States without inspec-
tion, disagrees with the Board's finding that she failed to qualify for
asylum and withholding of deportation. After a thorough review of
the administrative record, we conclude that substantial evidence sup-
ports the Board's finding that Morales-Canales did not satisfy her
statutory burden.
Morales-Canales, a married female who is a native and citizen of
Honduras, testified before an Immigration Judge (IJ) that she experi-
_________________________________________________________________
*We note that 8 U.S.C. § 1105a(a)(4) was repealed by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, Pub. L.
No. 104-208, 110 Stat. 3009 (IIRIRA), effective April 1, 1997. Because
this case was in transition at the time IIRIRA was passed, 8 U.S.C.
§ 1105a(a)(4) is still applicable under the terms of the transitional rules
contained in § 309(c) of the IIRIRA.
3
enced past persecution and feared future persecution in Honduras
based on the political opinion imputed to her because of her father's
activities, and because she is a member of her father's family. She tes-
tified that her father was an active member of the"Liberal Party" and
involved in the promotion of human rights and improvement of the
plight of the poor. She testified that she was too young to be a mem-
ber of the "Liberal Party," but that she assisted her father in collecting
money, recruiting new members, and distributing pamphlets. Accord-
ing to Morales-Canales, the military did not like her father's partici-
pation in the "Liberal Party" and detained him for six months in 1994
because of his party affiliation. She testified that although she
reported her father's disappearance, no action was taken to find him.
Morales-Canales further testified that after her father's detention,
she began receiving death threats. In September 1995, she was raped
and beaten by military men. She stated that one of the men informed
her that they were seeking vengeance on her because of her father.
She testified that the men's faces were covered with bags, but that
they wore military uniforms. Although she reported the attack to
authorities, the police took no action against the perpetrators.
Morales-Canales contends that the rape was an act of persecution
based on her membership in the particular social group of her father's
family. She provided documentation corroborating the rape from a
doctor to whom she went for medical assistance on the same day as
the rape. Morales-Canales also stated that this type of treatment has
occurred to other people whose families were active members of the
"Liberal Party." She stated that she subsequently went to a different
city for a few days, returned home to obtain necessary materials, and
then fled to the United States.
Morales-Canales's husband testified that he came to the United
States before his wife in order to bring her here so that she could
avoid further problems caused by her father's political activities. He
testified that he was in the United States when his wife was raped. He
also confirmed that Morales-Canales's father was detained for six
months by the military because of his involvement in the "Liberal
Party," particularly for assisting the poor. Both Morales-Canales and
her husband testified that Morales-Canales's father was released in
July 1995 and that his whereabouts are unknown.
4
The IJ found that Morales-Canales's testimony was not credible in
regard to her analysis of the motivation behind the harm she alleged
she suffered. Specifically, the IJ found that although she may have
been harmed, the harm was not the result of her persecution. After
considering all the evidence in the record, the Board agreed with the
IJ that Morales-Canales was not a credible witness. The Board also
noted that Morales-Canales has not established past persecution or a
well-founded fear of persecution if she were to return to her native
country.
We review the credibility findings of the IJ and the Board for sub-
stantial evidence. See Figeroa, 886 F.2d at 78 (citing Turcios v. INS,
821 F.2d 1396, 1399 (9th Cir. 1987); Saballo-Cortez v. INS, 761 F.2d
1259, 1262 (9th Cir. 1985)). Substantial evidence is evidence that a
reasonable person might accept as adequate to support a conclusion.
See Turcios, 821 F.2d at 1398. Although an IJ's credibility determina-
tions are granted substantial deference by a reviewing court, a trier of
fact who rejects a witness's positive testimony because in his judg-
ment it lacks credibility should offer specific, cogent reasons for his
disbelief. Figeroa, 886 F.2d at 78. We find that the IJ supported his
credibility determinations with specific, cogent reasons for his disbe-
lief and the Board cited specific reasons for agreeing with the IJ's
negative credibility determination.
As the Board noted in its decision, the inconsistencies and mislead-
ing statements noted by the IJ implicate the core of Morales-Canales's
asylum claim, particularly her rape and her father's detention. The IJ
found that "[s]he was not articulate enough to give a reliable account
and lacks information regarding the perpetrators of the rape or the
persons who incarcerated her father." Morales-Canales could not con-
clusively identify her rapists. She initially stated that the rapists were
military men. However, when asked later whether they were military,
she said she did not know and that "they are called death squads."
However, as the IJ noted, the death squads are not an official organi-
zation.
The IJ and the Board also noted other inconsistencies in Morales-
Canales's testimony. For example, Morales-Canales and her husband
differed in their testimony about the date of their marriage and about
where they lived after they were married. Morales-Canales also lied
5
to immigration officers when she was first apprehended. She told the
immigration officers that she was a Mexican. Only after the Mexican
authorities refused to accept her back in Mexico, however, did the
immigration authorities find out she was actually a citizen of Hondu-
ras. Even after the INS authorities were given correct information
about her nationality, she still lied about her husband's whereabouts.
She told the INS agents that her husband was in Honduras, when he
was actually in the United States. She testified at the immigration
hearing that she lied about her husband's whereabouts because she
did not want her husband to face deportation proceedings. The IJ
noted that it seemed incredible that her father, who was allegedly an
active member of the "Liberal Party," would have been imprisoned
during the time the "Liberal Party" was in power. We find that these
are specific, cogent reasons for the IJ's and Board's negative credibil-
ity findings and they are supported by substantial evidence. Because
substantial evidence supports the Board's finding that Morales-
Canales is not a credible witness, whether international law supports
her claims is irrelevant.
We also find that substantial evidence supports the Board's conclu-
sion that Morales-Canales has not established past persecution or a
well-founded fear of persecution if she were to return to her native
country. Although the Board noted that the harm Morales-Canales
suffered was horrendous, it found that she has not shown that her
attackers were motivated by any of the grounds enumerated in the
Act. Based on the information provided by Morales-Canales's psy-
chologist, her father appeared to have been involved in the embezzle-
ment of funds. Therefore, as the Board concluded, the attack was of
a personal nature, which is not protected by the Act. See Huaman-
Cornelio, 979 F.2d at 1000. The IJ also concluded, based on the com-
ment made by one of the rapists, that the attack occurred because of
a personal vendetta between the rapists and Morales-Canales's father.
Furthermore, Morales-Canales could not identify her attackers and
has not offered any credible evidence that they were connected with
authorities. Thus, based on the same reasoning, it is also not clear that
her father's problems were caused by his political beliefs rather than
his criminal activities. Lastly, based on the fact that the "Liberal
Party" retains control in Honduras, Morales-Canales has not shown
that a reasonable person in her circumstances would fear persecution
on account of her race, religion, nationality, membership in a particu-
6
lar social group, or political opinion. Therefore, we find that substan-
tial evidence supports the Board's finding that Morales-Canales was
ineligible for a grant of asylum.
Morales-Canales also contends that her claims are supported by
international law. The IJ and the BIA do not have jurisdiction over a
claim arising under customary international law. Galo-Garcia v. INS,
86 F.3d 916, 918 (9th Cir. 1996). "Neither the Immigration and
Nationality Act nor its regulations affirmatively grants jurisdiction"
over such claims. Id. Morales-Canales must establish her eligibility
for asylum or withholding of deportation within the framework of the
comprehensive scheme enacted by Congress for the admission of ref-
ugees into this country. Id. The Refugee Act of 1980 was designed
to bring United States law into conformity with international law. See
INS v. Cardoza-Fonseca, 480 U.S. 421, 424 (1987).
Morales-Canales insists she qualified for withholding of deporta-
tion. The standard for withholding of deportation is more stringent
than that for granting asylum. See id., 480 U.S. at 431-32. To qualify
for withholding of deportation, an applicant must demonstrate a "clear
probability of persecution." Id. at 430. Because substantial evidence
supports the Board's finding that Morales-Canales is ineligible for
asylum, she cannot meet the higher standard for withholding of
deportation.
Accordingly, we affirm the Board's order. We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the court and argument would not aid
the decisional process.
AFFIRMED
7