NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
Before: FARRIS, BEEZER, and TASHIMA, Circuit Judges.
To be eligible for asylum, Landaverde must be "unable or unwilling to return to [El Salvador] ... because of persecution or a well-founded fear of persecution on account of ... political opinion." 8 USC §§ 1101(a)(42)(A), 1158(a).
Landaverde must show "that the guerillas will persecute him because of that political opinion, rather than because of his refusal to fight with them." I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483 (1992). "[S]ince the statute makes [the persecutor's] motive critical, [Landaverde] must provide some evidence of it." Id. (emphasis in original). Landaverde's testimony concerning the FMLN's motivation suggests only that the FMLN has responded to his refusal to assist them:
Q: So, Mr. Landaverde, when you failed to fulfill [the FMLN's] expectations, what was their reaction towards you?
A: I was persecuted on several .. many occasions. They were taking reprisals against me because I didn't want to cooperate with them.
Landaverde offered nothing else to show that the FMLN's motivation for persecuting him is his political opinion. The BIA's conclusion that he is ineligible for asylum was not erroneous.
We need not review the BIA's alternative holding denying Landaverde's application in the exercise of its discretion.
To be eligible for withholding of deportation, Landaverde must show that if he returned to El Salvador he would be "threatened ... on account of ... political opinion." 8 USC § 1253(h). "[F]ailure to satisfy the lesser standard of proof required to establish eligibility for asylum necessarily results in a failure to demonstrate eligibility for withholding." Fisher v. I.N.S., 79 F.3d 955, 961 (9th Cir.1996) (en banc) (quoting Ghaly v. I.N.S., 58 F.3d 1425, 1429 (9th Cir.1995). It was not error to conclude that Landaverde's deportation should not be withheld.
AFFIRMED.
The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); Circuit Rule 34-4
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3