Alvarado-Molina v. INS

• Court: Court of Appeals for the Fifth Circuit
• Decided: February 26, 2002
• Docket: 00-60579
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS For the Fifth Circuit

No. 00-60579

JULIO ALVARADO-MOLINA,

Petitioner,

VERSUS

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

Petition for Review of an Order of the Board of Immigration Appeals (A71-774-176)

February 25, 2002

Before GARWOOD, DeMOSS, and DENNIS, Circuit Judges.

PER CURIAM:*

Julio Alvarado-Molina (“Alvarado”) appeals the Board of

Immigration’s (“BIA”) dismissal of his appeal regarding his

application for asylum and for withholding of deportation. We

affirm.

* Pursuant to 5TH CIR. R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. BACKGROUND

Alvarado was a member of a rural cooperative in his native

country of Honduras. Pursuant to a land reform law, rural

cooperatives gained title to land not being used by the original

owners. In 1987, Alvarado received a portion of land from the

cooperative. As a result of his membership in the cooperative,

former land owners allegedly threatened him. Alvarado claims that

he directly or indirectly received threats on four occasions.

First, in 1987, Alvarado claims that two men employed by the former

owners of his land threatened him with death if he did not leave

the cooperative. The head of his cooperative told Alvarado not to

take the threat too seriously and that it was a “passing threat.”

Soon after this first threat, Alvarado claims to have received a

second threat that was relayed to him by a friend, from an

unidentified man who was hanging around the place where Alvarado

was constructing his home. Alvarado apparently then moved to a

nearby town. After moving to this town, Alvarado was told that one

night armed men had surrounded his completed house but never

entered or disturbed his family. Alvarado and his family then

moved into his mother-in-law’s house. Alvarado claims that this is

where he received his fourth threat in the form of two men dressed

in military uniforms. The men arrived at his mother-in-law’s house

and inquired about Alvarado’s whereabouts. After the last alleged

threat, Alvarado fled Honduras and entered the United States near

2 Hidalgo, Texas, without inspection on March 8, 1991. Alvarado was

charged with entering the country without inspection in violation

of former § 241(a)(1)(B) of the Immigration and Nationality Act.

See 8 U.S.C. § 1251(a)(1)(B).

Alvarado filed an application for asylum, claiming that he

would be persecuted for his membership in a rural cooperative group

if he returned to Honduras. The Immigration Judge denied his

requests for asylum and for withholding of deportation. The BIA

dismissed Alvarado’s appeal on the grounds that he had failed to

show past persecution or a well-founded fear of future persecution

in Honduras. The BIA then gave Alvarado thirty days to voluntarily

leave the country, with that order converting automatically into an

order of deportation if he failed to depart. On appeal, Alvarado

claims that the BIA erred in denying asylum, incorrectly refused to

withhold his removal from the United States, erred in not

considering his grant of Temporary Protected Status (“TPS”) and

violated his procedural due process rights.

DISCUSSION

Standard of Review

We review the BIA’s factual findings regarding the

ineligibility of asylum under the substantial evidence standard.

See Witter v. INS, 113 F.3d 549, 552 (5th Cir. 1997) (“We will

affirm an order of deportation by the BIA if supported by

‘reasonable, substantial, and probative evidence on the record

3 considered as a whole.’”). The petitioner has the burden to show

that “the evidence he presented was so compelling that no

reasonable factfinder could fail to find the requisite fear of

persecution.” I.N.S. v. Elias-Zacarias, 502 U.S. 478, 483-84

(1992); Jukic v. INS, 40 F.3d 747, 749 (5th Cir. 1994).

Alvarado’s denial of asylum

First, Alvarado argues that the BIA erred in denying asylum.

To qualify for asylum, Alvarado must show either that he suffered

from past persecution or that he has a well-founded fear of future

persecution due to “race, religion, nationality, membership in a

particular social group, or political opinion.” 8 U.S.C.

§§ 1101(a)(42)(A), 1158(b)(1). We have defined persecution as harm

or suffering inflicted in order to punish one for possessing some

belief or characteristic the persecutor has sought to overcome.

Faddoul v. INS, 37 F.3d 185, 188 (5th Cir. 1994). Although

physical harm is not necessary, the harm must generally deprive

some essential of life such as liberty, food, housing, or

employment. Mikhael v. INS, 115 F.3d 299, 303 n.2 (5th Cir. 1997).

While the four threats that Alvarado allegedly received may be

troubling, they do not rise to the level of past persecution. As

an initial matter, we cannot consider two of the four threats as

persecution, because Alvarado has failed to provide any evidence

that they were motivated due to his membership in a rural

4 cooperative.2 See Faddoul, 37 F.3d at 188 (requiring a connection

between the feared persecution and the alien’s race, religion,

nationality, or other qualifying characteristic). In regards to

the other two threats, they apparently came from the former

landowners who threatened Alvarado, once directly and another time

indirectly through his friend. Courts have held that mere threats

normally are not sufficient to qualify as past persecution, unless

they are so immediate and menacing as to cause significant actual

suffering or harm. See, e.g., Boykov v. INS, 109 F.3d 413, 416

(7th Cir. 1997) (stating that in a vast majority of cases “mere

threats will not, in and of themselves, compel a finding of past

persecution”); see also Lim v. INS, 224 F.3d 929, 936 (9th Cir.

2000) (refusing to find error in denial of asylum when alleged past

persecution was only a threat); Cigaran v. Heston, 159 F.3d 355,

358 (8th Cir. 1998) (same). Alvarado has failed to show that the

threats were of such a menacing and immediate nature that they

caused actual significant harm.

Alvarado also maintains that the threats establish a well-

founded fear of future persecution. The BIA offered three reasons

in rejecting this claim: (1) Alvarado’s family allegedly had been

living undisturbed in Honduras for the past ten years; (2) the

threats had occurred over ten years ago; and (3) Alvarado failed to

2 As the BIA did not address the matter, we assume, arguendo only, that membership in a rural cooperative qualifies as one of the grounds specified in the statute.

5 show he could not relocate to another part of the country. After

reviewing the record, we find that the BIA erred in making the

first two findings. First, nothing in the record supports the

BIA’s assumption that Alvarado’s family remained in Honduras after

1991. Although his family eventually came to the United States, it

is unclear when they exactly arrived. Second, in noting that the

threat had occurred over ten years ago, the BIA made an unwarranted

assumption that the situation in Alvarado’s hometown had changed in

the intervening period. The record does not support that

assumption.

However, even if the BIA erred in making these two factual

findings, Alvarado cannot receive relief because he has failed to

show that he could not have relocated to another part of the

country. See Matter of C-A-L, 21 I. & N. Dec. 754 (BIA 197), 1997

WL 80985 (holding that a petitioner must show that he faced

country-wide persecution). Alvarado concedes that he has not

attempted to move to another area in Honduras, but he correctly

points out that if the national government is the persecutor, the

burden is on the INS to show that the persecution is limited to

only certain areas of the country. Abdel-Masieh v. INS, 73 F.3d

579, 587 (5th Cir. 1996). On the other hand, if the persecution

involves non-governmental action, the alien has the burden to show

a country-wide persecution. Lopez-Gomez v. Ashcroft, 263 F.3d

442, 445-46 (5th Cir. 2001) (“Today we hold that, at least for

6 cases where the applicant does not show past persecution, when the

applicant for asylum does not demonstrate that a national

government is the persecutor, the applicant bears the burden of

showing that the persecution is not geographically limited in such

a way that relocation within the applicant’s country of origin

would be unreasonable.”); see also, Mazariegos v. Office of U.S.

Atty. General, 241 F.3d 1320, 1325-27 (11th Cir. 2001) (finding

that the BIA did not err by requiring that an alien, seeking asylum

on the basis of non-governmental persecution, show a threat of

persecution nation-wide); Etugh v. INS, 921 F.2d 36, 39 (3d Cir.

1990) (same); Cuadras v. INS, 910 F.2d 567, 571 n.2 (9th Cir. 1990)

(same).

To support his claim that the national government was

responsible for his alleged persecution, Alvarado offers primarily

only his subjective speculation, noting, for example, that the

police were unresponsive to his complaints. Mere subjective

opinion, however, is not sufficient; an alien must also provide an

objective, reasonable basis for his fear of persecution. Mikhael,

115 F.3d at 304. In short, Alvarado has not shown that the

national government is responsible for his alleged persecution, or

that he cannot move elsewhere in Honduras. Accordingly, his

failure to show past persecution or a well-founded fear of future

persecution bars his asylum claim.

Alvarado’s withholding of deportation claim

7 Second, we reject his claim for withholding of deportation.

This claim requires a clear probability of persecution standard,

which is even more stringent than the well-founded fear standard

for asylum. Castillo-Rodriguez v. INS, 929 F.2d 181, 185 (5th Cir.

1991). Because Alvarado failed to meet the requirements of the

asylum claim, he necessarily cannot succeed on the withholding of

deportation claim.

Alvarado’s grant of Temporary Protected Status

Alvarado also alleges that the BIA erred by not considering

his grant of a TPS. Prior to the BIA’s decision, Honduras was

struck by Hurricane Mitch, causing the Attorney General to

designate Honduras for Temporary Protected Status.3 The initial

period was from January 5, 1999, to July 5, 2000 and was

subsequently renewed through July 5, 2002. 65 Fed. Reg. 30,438

(2000). This period was just recently extended further until July

5, 2002. 66 Fed. Reg. 23,269 (2001). Alvarado registered for TPS

within the required time frame.4 Though Alvarado never informed

the BIA of such status before it made its decision, he asserts

3 We pause to note that the granting of a TPS designation was premised on an environmental disaster and not on a finding that there was an armed conflict or political conflict which would pose a threat to the national’s personal safety. The TPS designation, therefore, does not affect the determination by the Board that Alvarado did not suffer past persecution or have an apprehension of future persecution. The TPS designation had nothing to do with the political climate in Honduras. 4 It is unclear whether Alvarado has sought to renew his TPS since the most recent extension.

8 that, through a cursory consideration of his case, it should have

been apparent that he was eligible.

Assuming Alvarado is correct in his assertion that the BIA had

constructive notice of his TPS, it would still not affect the

outcome. Under 8 U.S.C. § 1254a(a)(1)(A), the Attorney General

“may grant [an] alien temporary protected status in the United

States and shall not remove the alien from the United States during

the period in which such status is in effect.” 8 U.S.C.

§ 1254a(a)(1)(A). Alvarado would have this Court believe that the

“shall not remove” language precludes any orders to deport as well.

In other words, he would have us read “shall not remove” to mean

“shall not remove or order to remove.” Alvarado’s view, however,

is too expansive. A grant of Temporary Protected Status is just

that - temporary. It is a stay or suspension of deportation. As

such, it has the power to suspend the BIA’s order but does not

invalidate it. Cf. Gomez v. INS, 947 F.2d 660, 664-65 (2d Cir.

1991) (“[Temporary Protective Status] was designed to supplement -

rather than eviscerate or erode - well-established immigration law

concerning political asylum and withholding of deportation.”);

Augusta v. INS, 149 F.3d 1167, *2 at n. * (4th Cir. 1998) (table

case) (allowing an alien to remain in the country while under a

designation of TPS but noting that such designation does not

establish eligibility for asylum). Therefore, once Alvarado’s

protected status has expired, the order can take effect and the

9 thirty-day voluntary departure period can begin.5

Alvarado’s denial of due process claim

Finally, Alvarado contends that his procedural due process

rights were violated when the BIA, in denying his asylum claim,

made two incorrect factual assumptions regarding the location of

his family and the effect of time on his persecution claim. In an

administrative proceeding, a petitioner must show substantial

prejudice to succeed on a denial of the due process claim.

Calderon-Ontiveros v. INS, 809 F.2d 1050, 1052 (5th Cir. 1986). As

mentioned above, Alvarado’s claim that the BIA did not consider the

pattern and practice of singling out rural cooperative groups is

rejected because he has failed to show that this purported

persecution existed country-wide.6

Alvarado’s motion to stay deportation

Alvarado has asked this Court to suspend his deportation in

light of his grant of TPS and also until the BIA can consider his

5 By allowing the thirty-day period to begin after the TPS has expired, the inequities argued by Alvarado of allowing the order to stand and toll his thirty-day period are eliminated. 6 Alvarado also offered two pieces of evidence on appeal. We generally do not consider evidence and issues that were not presented during the administrative hearing. Witter v. INS, 113 F.3d 549, 554 (5th Cir. 1997). Moreover, it is unclear when Alvarado learned of the new evidence or why he didn’t present it earlier. Alvarado is free, however, to attempt to present this evidence in his motion to reopen the case before the BIA. 8 C.F.R. § 3.2(c); Meghani v. I.N.S., 236 F.3d 843, 848 (7th Cir. 2001).

10 motion to reopen his case based on new evidence. This Court has

stated that a suspension of deportation is a grant of mercy.

Perales v. Casillas, 903 F.2d 1043, 1051 (5th Cir. 1990).

“Suspension of deportation is a matter of discretion and of

administrative grace, not mere eligibility; discretion must be

exercised even though statutory prerequisites have been met.”

Hintopulos v. Shaughnessy, 353 U.S. 72, 77 (1957).

As to Alvarado’s motion to reopen, there is little statutory

guidance on the issue as the authority for such motions derives

solely from regulations promulgated by the Attorney General.

Pritchett v. INS, 993 F.2d 80, 83 (5th Cir. 1993) (citing INS v.

Doherty, 502 U.S. 314 (1992)). As such, we turn to these

regulations for guidance. Under 8 C.F.R. § 3.2, the BIA has the

power to reopen deportation proceedings under certain circumstances

but is not affirmatively required to do so. 8 C.F.R. § 3.2(a);

Pritchett, 993 F.2d at 83. This same section has a provision for

stays of deportation, stating in relevant part:

[T]he filing of a motion to reopen or a motion to reconsider shall not stay the execution of any decision made in the case. Execution of such decision shall proceed unless a stay of execution is specifically granted by the Board, the Immigration Judge, or an authorized officer of the Service.

8 C.F.R. § 3.2(f). It is our view, therefore, that a motion to

stay deportation, in the present case, would more properly be made

to the BIA.

11 Alvarado’s motion to stay deportation due to his grant of TPS

has already been considered above. The decision was made by

Congress when it allowed such a stay and Alvarado cannot be

deported until the TPS has expired. At that time his thirty-day

voluntary departure period will begin.

CONCLUSION

Having carefully reviewed the record of this case and the

parties’ respective briefing and for the reasons set forth above,

we conclude that the BIA did not err in denying Alvarado’s claims

and that Alvarado was not denied due process. We further hold that

the BIA did not err, in the present case, by failing to recognize

Alvarado’s grant of TPS but do find that such a grant suspends the

BIA’s deportation order until the TPS has expired.

AFFIRMED.