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Castillo v. Immigration and Naturalization Service

filed*fn*: December 20, 1991.

EDGAR E. CASTILLO, PETITIONER,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.



Petition to Review a Decision of the Immigration and Naturalization Service. I&NS No. A27-206-702.

Before: Herbert Y. C. Choy, William A. Norris and Andrew J. Kleinfeld, Circuit Judges. Opinion by Judge Choy.

Author: Choy

CHOY, Circuit Judge:

Edgar E. Castillo appeals from a final order of the Board of Immigration Appeals ("the Board" or "BIA") issued on October 15, 1990 denying his requests for asylum. Castillo contends that there is not substantial evidence to support the BIA's determination that he was not eligible for asylum. This court has jurisdiction to hear this matter under section 106 of the Immigration and Nationality Act ("the Act"), 8 U.S.C. § 1105a. Because the BIA set forth specific reasons, supported by substantial evidence, why Castillo did not demonstrate a well-founded fear of persecution, and because the Board made it clear this was an alternative basis for denial that was totally independent of its taking administrative notice of the change of government in Nicaragua, we AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

Edgar E. Castillo is a thirty-five-year-old man who left Nicaragua on December 13, 1985 and traveled to the United States. He was apprehended and charged with entering the United States without inspection in violation of section 241(a)(2) of the Act, 8 U.S.C. § 1251(a)(2), by an order to show cause issued on December 20, 1985. During his deportation and asylum hearings Castillo was represented by counsel and the hearings all took place with a translator present.

At his asylum hearing Castillo testified that before 1979 he was a member of the Somoza party for fifteen years, that during the voting census and elections he was a poll taker, and at other times helped the party by distributing propaganda or providing assistance to participants at demonstrations, which took place approximately every three months. Castillo also stated, however, that he did not participate in any anti-Sandinista activities from 1981 to 1984.

Castillo testified that after the revolution in 1980 he was interrogated four times at work by the Sandinista state security police for one to two hours each time. Regarding these interrogations, Castillo stated that "They didn't prove anything against me" and that during the questioning he was not physically threatened. After these interrogations Castillo was not questioned again, even though he remained in Nicargua for another five years.

Castillo stated that he feared returning to Nicaragua because he did not have work. He stated that his profession in Nicaragua was banking and finance but that he was not employed in that profession when he left Nicaragua and never actually had worked in either of those fields. He testified that he was sure he could not work in his profession because he belonged to the Somoza party. Castillo graduated from school in December 1982 and thereafter worked first as a file clerk for one year and then in a position with the same company sending "work norms" until the time he fled to the United States.

Castillo also testified that he feared returning to Nicaragua because he does not want to serve in the military and that he left Nicaragua because he was registered for the military and the government told him he had to serve. According to Castillo, military service is "absurd, it's something absurd." He also stated that in Nicaragua everyone under forty years of age is required to serve in the military. Castillo testified that he is reluctant to serve in the Nicaraguan military because he was raised Baptist although he also stated that if he had to serve in the United States military he would do so.

The Immigration Judge (IJ) denied Castillo's application for asylum and withholding of deportation. The judge noted that shortly after the 1979 revolution Castillo was interrogated four times by the Sandinista state security police. He added that each time Castillo was questioned for one to two hours but that during the interrogations there were neither threats of physical harm nor was Castillo mistreated, detained, convicted of any crimes, or imprisoned.

With regard to Castillo's participation in political organizations, the IJ noted that from 1979 to the time he left Nicaragua in December 1985 Castillo was not a member of any political party. Moreover, he had not participated in any anti-Sandinista activity from 1981 to 1984. The IJ stated that Castillo never has served in the military although he is registered for the armed forces, fears he may be called to serve, and does not wish to serve.

Finally, the IJ noted that, although Castillo testified that he is an Evangelican associated with the Baptist Church, his asylum application indicates that he is Catholic. The judge also stated that Castillo testified that he never had been persecuted in Nicaragua based on his religion.

The IJ concluded that, even assuming Castillo's affiliation with the National Liberal Party of Somoza, there was no evidence that the Sandinistas persecuted him as a result of that affiliation or that a reasonable person in his circumstances would fear persecution in the future. Moreover, the IJ found that Castillo left Nicaragua to avoid military service because he either does not agree with the Sandinista government or ...


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