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Rodriguez v. Immigration and Naturalization Service

filed: May 29, 1992.

CECILIA OSBUN RODRIGUEZ, PETITIONER,
v.
IMMIGRATION AND NATURALIZATION SERVICE, RESPONDENT.



Appeal from the Board of Immigration Appeals. I.N.S. No. A-27-702-884.

Before: Alarcon, Norris, O'scannlain, Circuit Judges.

MEMORANDUM

Cecilia Osbun Rodriguez (Rodriguez) petitions for review of a decision of the Board of Immigration Appeals (BIA) denying her request for withholding of deportation and political asylum. She contends that the evidence she presented at her deportation hearing fulfilled the clear probability and well-founded fear of persecution standards required for relief under sections 208(a) and 243(h) of the Immigration and Nationality Act (INA), 8 U.S.C. §§ 1158(a), 1253(h). We disagree and affirm.

I.

In support of her request for asylum and withholding of deportation, Rodriguez attempted to demonstrate that her life and freedom would be threatened if she returned to the Philippines and that she had a well-founded fear of persecution.

Rodriguez testified that she was a well-known actress in the Philippines. She was a member of a group called the Blue Ladies that assisted Imelda Marcos in social and philanthropic ventures. As a member of this group, she attended many functions at the presidential palace and developed a relationship with Imelda Marcos.

Between 1974 and 1985, Rodriguez lived with Ferdinand Marcos' personal physician, Dr. Edwardo Jamora. Dr. Jamora is the father of her daughter, Jacqueline Jamora. After the assassination of Benjamin Aquino in September of 1984, Rodriguez received anonymous phone calls in the middle of the night at the Jamora residence. These anonymous callers told Rodriguez to get out of the country because they were "going to get" her, her children and Dr. Jamora. The tires of her car were flattened several times, and on four or five occasions, her car was followed by men in a jeep. Her residence was also stoned several times. Fearing for her life and the life of her children, Rodriguez obtained a passport and left the Philippines on April 3, 1985.

The immigration Judge denied Rodriguez's request for withholding of deportation and asylum. The BIA also concluded that Rodriguez failed to demonstrate a well-founded fear of persecution or a clear probability of persecution.

We review the BIA's decision to determine if it is substantially reasonable based on the evidence presented. De Valle v. INS, 901 F.2d 787, 790 (9th Cir. 1990).

II.

A. Withholding of Deportation under Section 243(h)

Section 243(h) of the INA prohibits the Attorney General from deporting any alien to a country where the alien's life or freedom would be threatened "on account of [1] race, [2] religion, [3] nationality, [4] membership in a particular social group or [5] political opinion." 8 U.S.C. § 1253(h). In order to qualify for withholding of deportation under section 243(h), an alien must demonstrate a "clear probability" that his life will be threatened based on one of these factors. Arteaga v. INS, 836 F.2d 1227, 1228 (9th Cir. 1988); Diaz-Escobar v. INS, 782 F.2d 1488, 1491 (9th Cir. 1986). The clear probability standard is satisfied only where the alien shows that it is "more likely than not" that he will be persecuted. INS v. Stevic, 467 U.S. 407, 424 (1984); see also Mendoza Perez v. INS, 902 F.2d 760, 761 (9th Cir. 1990) (quoting Stevic).

Rodriguez contends that the evidence she presented at her deportation hearing satisfied the clear probability of persecution standard. She argues that this evidence established that it was more likely than not that her life will be threatened if she returns to the Philippines based on (1) her visible political support for Marcos' regime and (2) her membership in the Marcoses' inner social circle.

Rodriguez failed to demonstrate that the harassment she suffered rises to the level of persecution. We have stated previously that "the mere fact that a threat was made may not be sufficient to establish a clear probability of persecution." Bolanos-Hernandez v. INS, 767 F.2d 1277, 1285 (9th Cir. 1984). Whether it is more likely than not that Rodriguez would be subject to persecution depends on whether the group making the threat has the "will or ability to carry it out." Id. ; see also Rodriguez-Rivera v. INS, 848 F.2d 998, 1006 (9th Cir. 1988). The record shows that during the year that Rodriguez remained in the Philippines after the threats began, she and her children were not physically harmed. Rodriguez has failed to show that the persons who threatened her have the will or ability to carry out the imprisonment, physical torture, or homicide that Rodriguez alleges she will suffer if she is deported to the Philippines. Cf. Bolanos-Hernandez, at 1286 (petitioner demonstrated a clear probability of persecution where his ...


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