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Pilarte-Donaire v. Immigration and Naturalization Service

filed*fn*: August 14, 1991.


Appeal from the Board of Immigration Appeals. A27-527-034.

Hug and Poole, Circuit Judges, and Atkins, District Judge.**fn**


Mario Javier Pilarte-Donaire ("petitioner") petitions for review of an order of the Board of Immigration Appeals ("Board") denying his applications for withholding of deportation and asylum. Because substantial evidence supports the Board's determination that petitioner has failed to establish a well-founded fear of persecution if returned to Nicaragua, we deny the petition.


Petitioner, a native and citizen of Nicaragua, entered the United States without inspection in September 1985. At his deportation hearing in December 1985, petitioner conceded deportability and applied for withholding of deportation and political asylum. In support of his applications, petitioner testified regarding several incidents he contended supported a well-founded fear of persecution should he be returned to Nicaragua. Because this evidence is crucial to our inquiry, we review the incidents in significant detail.

Prior to entering the United States in 1985, petitioner lived with his family in Managua, where his father worked as a doctor. Although petitioner at one time supported the Sandinistas, he began to oppose the Sandinista government in the early 1980s due to its increasing harshness toward opposition and media groups. Petitioner attended school in Managua until April 1985, when his family decided he should withdraw in light of incidents regarding his opposition to the Sandinistas. During high school class discussions, for example, his classmates would tell him that "something bad could happen to [him]" if he continued to oppose the Sandinista government. Moreover, in March of 1985 petitioner received an anonymous phone call and was asked whether he supported the Nicaraguan revolution; when petitioner answered that he supported the Contras, the caller said that "could be bad for [him]." Petitioner testified he did not take the call seriously at the time. Petitioner also attended a Catholic bible study group whose members were critical of the Sandinista government. Although he never was threatened or otherwise persecuted for his participation, the priest who oversaw the gatherings told petitioner he had several confrontations with the government. Petitioner testified that in November 1985, he learned the priest continued to have problems with the Sandinista government, but that to his knowledge the priest still lived in the same area, still performed his duties as a priest, and had never been jailed.

In June 1985, approximately two months after leaving school, petitioner was riding a motorcycle on a Managua street sometime between 6:00 and 7:00 in the evening. A vehicle of Soviet manufacture commonly used by the Sandinistas approached petitioner from the rear and forced him off the road, causing him to fall off the motorcycle. Although the vehicle neither stopped nor came back, and no one in the car ever called out his name, petitioner viewed the incident as a warning from the Sandinistas; he testified that it was not so dark that his identity could have been mistaken and that there were no obstacles in the road which could have accounted for the maneuver of the vehicle. After petitioner told his parents about the incident, they tied it to the anonymous March phone call and became worried for his safety.

In the wake of these incidents, petitioner's family decided he should leave the country. He did not apply for permission to leave Nicaragua because, at the approximate age of twenty-two, he would not be given an exit visa; although draft age is between seventeen and twenty-two in Nicaragua, petitioner had never been called for service. While travelling through Mexico on his way to the United States, petitioner learned additional information causing him to fear persecution in Nicaragua -- that his brother-in-law, who also opposes the Sandinistas, had been arrested, detained for two days, and interrogated about the family's political opinions and activities.

Petitioner also submitted documentation of the Sandinistas' youth-directed activities and suspension of civil rights, arguing that his specific incidents, combined with the documentation, establish a basis for a well-founded fear of persecution should he be returned to Nicaragua. The Immigration Judge ("IJ") found petitioner's testimony credible and granted his applications for withholding of deportation and for political asylum. The Immigration & Naturalization Service ("INS") appealed. In 1989, the Board reversed the IJ's grant of withholding of deportation and political asylum. Conceding that the petitioner's testimony was credible, the Board nevertheless found that the evidence submitted does not establish any basis for a well-founded fear of persecution on petitioner's part if returned to Nicaragua. While denying his deportation withholding and political asylum applications, the Board granted his application for voluntary departure. Petitioner timely filed a petition for review by this court in November 1989.*fn1


The United States Attorney General has discretion to grant an alien asylum if the Attorney General determines the alien is a refugee within the meaning of 8 U.S.C. § 1101(a)(42)(A). See id. § 1158(a). A refugee is defined as a person outside his country of nationality who is unwilling to return to that country "because of persecution or a well-founded fear of persecution on account of . . . political opinion." Id. § 1101(a)(42)(A). The "well-founded fear" standard requires a showing that the petitioner's fear is both subjectively genuine and objectively reasonable. See Canas-Segovia v. INS, 902 F.2d 717, 726 (9th Cir. 1990). By contrast, the Attorney General is prohibited from deporting to another country an alien whose "life or freedom would be threatened in such country on account of . . . political opinion." 8 U.S.C. § 1253(h). An alien must show a "clear probability of persecution" to satisfy the requirements of section 1253(h). Vides-Vides v. INS, 783 F.2d 1463, 1466 (9th Cir. 1986) (quotation omitted). The "well-founded fear" standard applicable to asylum claims is more generous than the "clear probability" standard applicable to withholding of deportation. INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987); Canas-Segovia, 902 F.2d at 723. Accordingly, an alien who fails to satisfy the "well-founded fear" standard also fails to satisfy the "clear probability" standard. See Rodriguez-Rivera v. INS, 848 F.2d 998, 1007 (9th Cir. 1988).

Factual determinations of an alien's statutory ineligibility for asylum or withholding of deportation are reviewed under the substantial evidence test. Florez-De Solis v. INS, 796 F.2d 330, 333 (9th Cir. 1986). If the Board's conclusion that an alien has failed to prove a well-founded fear of persecution is supported by substantial evidence, we must affirm. Sanchez-Trujillo v. INS, 801 F.2d 1571, 1579 (9th Cir. 1986). Although the Board has the power to review the record de novo, see Damaize-Job v. INS, 787 F.2d 1332, 1338 (9th Cir. 1985), where an IJ and the Board reach opposite results, we may consider the IJ's findings. See McMullen v. INS, 658 F.2d 1312, 1317 (9th Cir. 1981). Because we conclude, in light of the entire record, that substantial evidence supports the Board's determination that petitioner has not shown an objectively reasonable, i.e., a well-founded, fear of persecution, we need not evaluate the Board's finding that petitioner is ineligible for withholding of deportation. See Rodriguez-Rivera, 848 F.2d at 1007.

The Board concluded that the threats from petitioner's high school classmates and from the anonymous caller regarding petitioner's opposition to the Sandinistas were merely "vague, general warnings" that his opinions could cause him trouble in the future. This conclusion is supported by evidence that the threats were made either by high school classmates or by an anonymous caller and that petitioner was never detained, interrogated, arrested, imprisoned or otherwise physically harmed after voicing his opposition. See id. at 1005 (noting that determination should focus on character of threats); cf. id. at 1006 (emphasizing fact that threatened petitioner continued living undisturbed for three-month period). The Board's rejection of petitioner's testimony regarding his participation in the bible study group as a basis for a well-founded fear also is also supported by the record. As the Board noted, petitioner offered no testimony that the parish priest or any group member had ever been jailed for their participation. Cf. Sanchez-Trujillo, 801 F.2d at 1579-80 (discounting petitioner's involvement in Catholic youth group under similar circumstances).

Substantial evidence likewise supports the Board's conclusion that the incident involving petitioner's motorcycle crash does not give rise to an objectively reasonable fear of persecution. Even accepting petitioner's contention that there were no obstacles in the road which could have accounted for the maneuver of the driver of the vehicle, the record contains evidence that this mishap may have resulted not from any government-sponsored action, but rather from a chance encounter with a vehicle being driven in an unsafe manner. As petitioner testified, the motorcycle was not his, the incident occurred near dusk, and his back was to the car during the incident. Moreover, for two months following the accident petitioner continued to live at home without receiving any further threats or ...

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