908 F2d 977 Olmedo-Carrillo v. Immigration & Naturalization Service
908 F.2d 977
Mario OLMEDO-CARRILLO, Petitioner,
IMMIGRATION & NATURALIZATION SERVICE, Respondent.
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted April 16, 1990.
Decided July 10, 1990.
Before CHAMBERS and BEEZER, Circuit Judges, and KLEINFELD,* District Judge
Olmedo-Carrillo appeals the denial of his petition for asylum or withholding of deportation. We affirm.
Olmedo-Carrillo is a 30-year-old native of El Salvador. He has entered the United States twice. In 1979, he first entered the United States and was voluntarily deported after 3 days. He returned to El Salvador where he lived without incident for 10 months. During that period, he had a paying job and worked without pay for a new consumer cooperative called "Domus," where he served for six months as "chief of surveillance." His duties included public appearances to inform people about the cooperative. Pamphlets were published with his name on them.
In 1980, Olmedo-Carrillo again left El Salvador because he "was fearful" and "felt oppressed." He had not experienced any personal persecution. He traveled through Guatemala to Mexico, where he worked illegally for 2 years. In 1982, he entered the United States for the second time.
Olmedo-Carrillo is now fearful of returning to El Salvador. While in detention in the United States, he learned that two people from Domus had been killed. Through a letter from his father, he learned that several of his friends--one with the government military, one a guerrilla, and one a student--had been killed during 1981-82. In 1984, he learned that his brother, a Jehovah's witness and a student at a school associated with leftist groups, was arrested and tortued by the military. Under pressure, his brother revealed the names of his parents and Olmedo-Carrillo. According to Olmedo-Carrillo, after learning he was in the United States, the interrogators "replied I was a guerrilla." Olmedo-Carrillo also states that his political orientation is nonviolence and he disapproves of the current Salvadorean government. He testified that if he returned to El Salvador and these opinions became known, he could be killed. Furthermore, he states that if he returned to El Salvador he would refuse to join the military. If drafted, he testified he would desert, rather than fight against his own countrymen.
The Immigration Judge found that Olmedo-Carrillo failed to carry his burden of showing a well-founded fear of persecution. The IJ found that Olmedo-Carrillo showed no evidence of past persecution and his fear of possible future persecution was "conjecture." The BIA affirmed, holding that Olmedo-Carrillo failed to link any of the incidents of persecution suffered by others to himself and made no showing he would be singled out for persecution upon his return.
STANDARD OF REVIEW
We review the BIA's decision denying political asylum for abuse of discretion. Bolanos-Hernandez v. INS, 767 F.2d 1277, 1282 n. 9 (9th Cir.1984). We review the Board's findings of fact concerning statutory eligibility for asylum for substantial evidence. Rodriguez-Rivera v. INS, 848 F.2d 998, 1001 (9th Cir.1988); Hernandez-Ortiz v. INS, 777 F.2d 509, 518 (9th Cir.1985). Similarly, we review denial of an application for withholding of deportation for substantial evidence. Blanco-Lopez v. INS, 858 F.2d 531, 533 (9th Cir.1988). "Substantial evidence" is "more deferential than de novo review," and we "may not reverse the BIA simply because [we] disagree with its evaluation of the facts." Rodriguez-Rivera, 848 F.2d at 1001. The BIA's conclusions need only be "substantially reasonable." Id.
1. Statutory Scheme
To be eligible for a discretionary grant of asylum, a petitioner must be a "refugee" who demonstrates a "well-founded fear of persecution" because of "race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. Secs. 1158(a), 1101(a)(42)(A). To be "well-founded," the fear must be subjectively genuine, Hernandez-Ortiz, 777 F.2d at 513, and objectively "reasonable." INS v. Cardoza-Fonseca, 480 U.S. 421, 440 (1987).
The petitioner bears the burden of showing a "reasonable possibility" of persecution. Blanco-Comarribas v. INS, 830 F.2d 1039, 1042-43 (9th Cir.1987). To establish a "reasonable possibility," the petitioner must present credible, direct and specific evidence. Mendez-Efrain v. INS, 813 F.2d 279, 282 (9th Cir.1987). What amounts to specific evidence depends on the facts of each case, id., but there must be some showing that the petitioner could be singled out and that the persecution would be based on one of the grounds enumerated in the statute. Blanco-Comarribas, 830 F.2d at 1042; Robello-Jovel v. INS, 794 F.2d 441, 448 (9th Cir.1986). Conditions in a country and the experiences of others are relevant, Garcia-Ramos v. INS, 775 F.2d 1370, 1374 (9th Cir.1985), but generalized violence alone does not establish a claim of persecution, though it may corroborate a particularized fear or threat. Arteaga v. INS, 836 F.2d 1227, 1232 (9th Cir.1988). An actual threat need not be shown. Garcia-Ramos, 775 F.2d at 1374.
b. Withholding of Deportation
To be entitled to withholding of deportation, an alien must show that his or her "life or freedom would be threatened ... on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. Sec. 1253(h)(1). This requires the alien to show that he faces a "clear probability" of persecution, a higher standard than a "well-founded fear." INS v. Stevic, 467 U.S. 407 (1984). Once entitlement is shown, this relief is mandatory. Bolanos-Hernandez, 767 F.2d at 1282.
2. Eligibility for Asylum: Well-Founded Fear
Olmedo-Carrillo first argues that he may face political persecution for his work as an official in the Domus cooperative. Membership in a persecuted political organization may establish a well-founded fear of persecution when one has been identified as a member. Garcia-Ramos, 775 F.2d at 1374; Canjura-Flores v. INS, 784 F.2d 885, 889 (9th Cir.1985). However, Olmedo-Carrillo has failed to show that Domus is an organization that is either political or persecuted.
Olmedo-Carrillo testified that the Domus cooperative was engaged in "commercial politics." He stated that it was likely to earn the government's disapproval because its stores were in competition with government stores and "[a]ny type of activity that would be against the government's interest would be stopped." He testified that at the time he left El Salvador, the government had started prohibiting "free group meetings" and "whenever something is thought that does not go along with their interests, something can always happen to one." He also testified that he was publicly known since his name appeared on pamphlets issued by the group.
However, Olmedo-Carrillo was not able to testify that the government did disapprove of the group, only that its members feared it might. The record provides no other basis for finding that Domus membership could result in political persecution. Olmedo-Carrillo testified that he had no fear of government reprisals for his work before he left El Salvador. There is no showing that the deaths of two Domus workers that occurred after his departure were in any way linked to each other or to their membership in the cooperative. Nor is there any other evidence that the group itself has ever been persecuted. Finally, even though he learned of the deaths while he was in the detention center in 1982, Olmedo-Carrillo did not consider his Domus membership important enough to mention on either his original asylum application or its amendment in 1986.
The BIA concluded that this evidence was insufficient to establish a reasonable possibility that Olmedo-Carrillo would suffer political persecution for his Domus membership. We agree. Substantial evidence supports the Board's conclusion.
b. Family and Friends
Olmedo-Carrillo next argues that he has been identified as a guerrilla by government officials and is likely to be persecuted because his brother and friends have been.
Olmedo-Carrillo argues that his brother identified him to his kidnappers, told them he was in the United States, and "they replied that I was a guerrilla." On appeal, Olmedo-Carrillo argues that this statement amounts to a direct threat. It is not clear that this statement constitutes a threat, however. In his testimony before the IJ, Olmedo-Carrillo stated only that he feared "it is possible that in the future he and I might be confused" with each other. A witness who had spoken to the brother by phone described in some detail the brother's experience and his fears of continued harassment, but made no connection between the brother's experience and Olmedo-Carrillo. There is no indication the military ever asked any further questions about Olmedo-Carrillo.
Olmedo-Carrillo next argues that the persecution of his brother shows a reasonable possibility that he will be persecuted. Persecution of family members, friends and others similarly situated as oneself may establish a reasonable possibility that a petitioner may be persecuted. See Rodriguez v. INS, 841 F.2d 865, 870-71 (9th Cir.1987); Hernandez-Ortiz, 777 F.2d at 515-16 n. 6; Argueta v. INS, 759 F.2d 1395, 1397 (9th Cir.1985). However, we have generally required "a number of threats or acts of violence against members of an alien's family," Rodriguez, 841 F.2d at 871, or else a close connection with the persecuted person, to establish such a claim. See, e.g., Cardoza-Fonseca, 480 U.S. at 424 (petitioner had left the country with her brother). Here, no threats were made against any other family members. In addition, Olmedo-Carrillo and his brother are differently situated. Though neither has any political affiliation, his brother was a student and a Jehovah's Witness at the time of his kidnapping. Olmedo-Carrillo is neither. No other strong link between them has been shown. His brother lived in El Salvador without further violent confrontation for two years before he fled. The rest of his family continues to live safely in El Salvador.
Olmedo-Carrillo also argues that the deaths of several friends show a reasonable possibility he will be persecuted. These friends were from vastly different walks of life--the government military, guerrilla groups, and students--and display no pattern that would implicate Olmedo-Carrillo. Olmedo-Carrillo himself was a member of none of these groups. All the deaths occurred after Olmedo-Carrillo left El Salvador. Although he testified that he had known one friend since childhood, there is no showing that Olmedo-Carrillo would be linked to his friends in the eyes of the government in any other way.
The Board concluded that these facts do not establish a reasonable possibility that Olmedo-Carrillo will face political persecution as a result of the statement by his brother's kidnappers or the persecution of his brother or friends. Substantial evidence supports the Board's conclusion.
c. Political Neutrality and Military Service
Olmedo-Carrillo next argues that his political opinion, in the form of political neutrality, could result in persecution were it to become known. He argues that his opposition to military service would "set him apart" were he to be drafted upon his return to El Salvador. He does not claim that he is a conscientious objector or that he would refuse to fight under any circumstances, but says that if drafted, he would not take up arms against his own people.
Political neutrality may constitute a political opinion and thus be grounds for political refugee status. See Maldonado-Cruz v. INS, 883 F.2d 788, 793 (9th Cir.1989). We have, however, consistently held that the possibility of being drafted does not constitute a threat of political persecution. Rodriguez-Rivera, 848 F.2d at 1005; Kaveh-Haghigy, 783 F.2d 1321, 1323 (9th Cir.1986); see also Arteaga, 836 F.2d at 1232 & n. 9 (noting cases denying social group status to young males of draft age).
Olmedo-Carrillo argues that his case is similar to Aviles-Torres v. INS, 790 F.2d 1433 (9th Cir.1986). There, a newspaper article had identified the petitioner as "a guerrilla enemy of the government." The petitioner had also failed to enlist in the military and alleged that young men in his village who had similarly failed to enlist had been persecuted. We held that those factors combined "would place Aviles-Torres in a group of prime targets for government retribution" and thus established a prima facie case for asylum. Id. at 1436-37.1 Here, Olmedo-Carrillo has not been identified in print as an enemy of the government. Nor has he yet been drafted or taken any action toward refusing to join the military. In fact, he has not overtly expressed any opinion of political belief or neutrality.
Olmedo-Carrillo relies more heavily on a Fourth Circuit case, M.A. A26851062 v. INS, 858 F.2d 210 (4th Cir.1986), that has since been vacated. In that case, the petitioner argued that he had left El Salvador specifically to avoid serving in the military. A panel of the court held that "the possibility that an unwilling conscriptee may be associated with the commission of atrocities" may make him eligible for "refugee" status for refusing to serve. Id. at 215. On rehearing en banc, however, the court rejected panel's reasoning and held that refusal to serve in El Salvador's military, and punishment for refusal, did not constitute political persecution. M.A. A26951062 v. INS, No. 88-3004, slip op. at 18-25 (4th Cir. March 27, 1990).
A petitioner must provide testimony or evidence that is "credible, persuasive, and refers to 'specific facts that give rise to an inference that the applicant ... has a good reason to fear that he or she will be singled out.' " Blanco-Comarribas, 830 F.2d at 1042-43 (citations omitted). Olmedo-Carrillo has simply identified no overt expression of political or politically neutral opinion that he has made. The Board concluded that Olmedo-Carrillo had failed to carry his burden of showing political persecution was a reasonable possibility. Substantial evidence supports the Board's conclusion.
d. Civil Patrol Threats
Finally, Olmedo-Carrillo argues on appeal that on two occasions he was robbed and beaten by civil patrol members because he was suspected of being a guerrilla. These incidents occurred in 1977, two years before he left El Salvador the first time. Upon his return in 1979, he was subject to no harassment whatsoever. Substantial evidence supports the Board's finding that the 1977 incidents do not establish a well-founded fear of persecution.
3. Withholding of Deportation: Clear Probability of Persecution
Because Olmedo-Carrillo has failed to establish a well-founded fear of persecution, he has, a fortiori, failed to satisfy the higher level of proof required to show a clear probability of persecution. Rodriguez-Rivera, 848 F.2d at 1007.
4. Procedural Errors
a. Testimony regarding opposition to military service
The IJ dealt summarily with Olmedo-Carrillo's statements that if drafted, he would refuse to serve in the El Salvador military, calling them "sheer conjecture." As a result, Olmedo-Carrillo was unable to submit evidence of atrocities committed by the military. In its opinion, the Board failed to mention this issue. Olmedo-Carrillo argues that its failure to "consider all of the relevant factors" prevents the BIA from denying relief.
A claim of persecution must be based on one of the factors enumerated in the statute. Blanco-Comarribas, 830 F.2d at 1042-43. Olmedo-Carrillo has not yet refused to serve and the threat of being drafted is not political persecution. We conclude that to the extent the Board's oversight is error, it is harmless.
b. Testimony of Witness
Olmedo-Carrillo next argues that the BIA improperly discounted his uncontradicted testimony regarding the threat made by his brother's kidnappers because it was inconsistent with that of the witness who had spoken with his brother. He argues that the BIA opinion impermissibly suggests that discrepancies between her testimony and his discredit his claim.
Olmedo-Carrillo's asylum application states that he was labeled a "guerrilla" by the men who kidnapped and tortured his brother. However, Olmedo-Carrillo himself made no mention of this fact at the hearing. He stated only that he feared that he might be confused with his brother. The witness's testimony does not mention Olmedo-Carrillo at all. She stated only that the brother revealed the names of his parents to his kidnappers.
The Board stated that it would weigh the testimony of the witness less heavily than that of Olmedo-Carrillo himself. The agency is the trier of fact and empowered by Congress to weigh the evidence presented to it. Rodriguez-Rivera, 848 F.2d at 1001. We may not reverse the Board's findings simply because we disagree with its evaluation of the facts. Id. Here, even assuming the asylum application is accurate because uncontradicted, Arteaga, 836 F.2d at 1231 n. 7, the statement by the kidnappers does not necessarily by itself establish a well-founded fear of persecution. The incident occurred four years after Olmedo-Carrillo's departure and two years before his brother left El Salvador. In those two years, Olmedo-Carrillo's brother feared he was being singled out and watched, but no further questions were asked about Olmedo-Carrillo. No actions were taken against other members of the family. The life activities of the two brothers were entirely different.
Furthermore, it was Olmedo-Carrillo himself who failed to mention this important detail at his hearing. We conclude that the Board's weighing all of the testimony was not an error requiring reversal.
The findings of the Board are supported by substantial evidence. We sympathize with Mr. Olmedo-Carrillo's concern about a return to El Salvador, and his preference for remaining in the United States, but he does not fit within any of the categories which would make it proper for this court to overturn the decision of the Immigration and Naturalization Service. The Board committed no error requiring reversal. The Board's finding that Olmedo-Carrillo is statutorily ineligible for asylum or withholding of deportation is
The Honorable Andrew J. Kelinfeld, United States District Judge for the District of Alaska, sitting by designation
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3
Because the Aviles-Torres case was brought as a motion to reopen, the panel was not required to evaluate the actual eligibility of the petitioner