Audelio Arriaga-Barrientos v. U.S. Immigration and Naturalization Service

925 F.2d 1177, 91 Cal. Daily Op. Serv. 1142, 91 Daily Journal DAR 1848, 1991 U.S. App. LEXIS 2037
CourtCourt of Appeals for the Ninth Circuit
DecidedFebruary 13, 1991
Docket89-70310; INS A27-209-509
StatusPublished
Cited by22 cases

This text of 925 F.2d 1177 (Audelio Arriaga-Barrientos v. U.S. Immigration and Naturalization Service) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Audelio Arriaga-Barrientos v. U.S. Immigration and Naturalization Service, 925 F.2d 1177, 91 Cal. Daily Op. Serv. 1142, 91 Daily Journal DAR 1848, 1991 U.S. App. LEXIS 2037 (9th Cir. 1991).

Opinion

WALLACE, Chief Judge:

Arriaga-Barrientos petitions for review of the decision of the Board of Immigration Appeals (Board) denying his request for asylum and withholding of deportation. The Board had jurisdiction pursuant to 8 C.F.R. §§ 3.1(b)(2), 242.21 (1990). We have jurisdiction over this timely-filed petition pursuant to 8 U.S.C. § 1105a. We deny the petition.

I

Arriaga-Barrientos is a native and citizen of Guatemala. He entered the United States without inspection near San Ysidro, California, on or about October 13, 1985. Once apprehended, he conceded deportability and applied for asylum or withholding of deportation. The immigration judge denied his application and ordered deportation. Arriaga-Barrientos timely appealed to the Board, which dismissed the appeal.

Arriaga-Barrientos served in the Guatemalan military from July 1973 until January 1985, when he was discharged. He testified before the immigration judge that he feared both the Guatemalan military and its armed opposition. He said his release from the military might be construed as an act sympathetic to the opposition. He admitted, however, that his discharge was in the normal course of service. He has not been threatened or even approached by the military. Indeed, in October 1985, the government issued him a passport and visa.

On the other hand, he testified that his long-standing military service might be construed as an expression of political support for the government. He suggested that other persons have been killed by the opposition upon the completion of their military service, but he could not recall specific instances of such persecution. He has not been threatened or approached by the opposition.

Finally, Arriaga-Barrientos discussed the disappearance of two of his brothers. He testified that they were abducted by unknown gunmen for unknown reasons, and suggested that the gunmen might be loyal to either the government or its armed opposition. Both brothers lived some eight hundred kilometers from the region in which Arriaga-Barrientos lived.

II

Section 243(h) of the Immigration and Nationality Act (Act), 8 U.S.C. § 1253(h), requires the Attorney General to withhold deportation “if the Attorney General determines that such alien’s life or freedom would be threatened ... on account of race, religion, nationality, membership in a particular social group, or political opinion.” Section 243(h) is a mandatory provision which entitles the alien to a withholding of deportation upon proof of a clear probability of persecution. Diaz-Escobar v. INS, 782 F.2d 1488, 1491 (9th Cir.1986) (Diaz-Escobar).

Section 208(a) of the Act, 8 U.S.C. '§ 1158(a), gives the Attorney General discretion to allow political asylum if the Attorney General determines the alien to be a refugee within the meaning of section 101(a)(42)(A) of the Act, 8 U.S.C. § 1101(a)(42)(A). Like section 243(h), section 101(a)(42)(A) requires proof of persecution on account of “race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). To establish asylum eligibility, however, the alien need not meet the clear probability test. Diaz-Escobar, 782 F.2d at 1491. Rather, the alien need only prove a well-founded fear of persecution. De Valle v. INS, 901 F.2d 787, 790 (9th Cir.1990). A well-founded fear must be both subjectively and objectively reasonable. See id. The subjective component requires a showing that the alien’s fear is genuine. Id. The objective component requires a showing, by credible, direct, and specific evidence in the record, of facts that *1179 would support a reasonable fear of persecution. Id.

We review the Board’s denial of asylum and withholding of deportation for substantial evidence. Diaz-Escobar, 782 F.2d at 1491-92. This standard is only slightly stricter than the clear error standard. Rodriguez-Rivera v. INS, 848 F.2d 998, 1001 (9th Cir.1988). Under this deferential standard, we may not reverse the Board simply because we disagree with its evaluation of the facts, but only if we conclude that the Board’s evaluation is not supported by substantial evidence. Id. This standard requires only that the Board’s conclusion, based on the evidence presented, is substantially reasonable. Id.

The Board found that Arriaga-Barrien-tos failed to meet his burden of proof under either the clear probability or well-founded fear standard. We will first review this finding under the more generous well-founded fear standard. If we conclude that substantial evidence supports the Board’s finding as it relates to well-founded fear, we will not need to review separately in light of the more stringent clear probability standard; Arriaga-Bar-rientos’s failure as to the former necessarily demonstrates his failure as to the latter. Diaz-Escobar, 782 F.2d at 1492.

Assuming his fear is subjectively genuine, we analyze it for objective reasonableness. Arriaga-Barrientos is neither politically active nor even publicly declared as politically neutral, yet he points to the chance that a political opinion will be erroneously attributed to him. He has not been persecuted or threatened, but he contends that the abduction of geographically distant relatives establishes a requisite well-founded fear to him. He asks for status-based asylum on the basis of his former service in the Guatemalan military. Thus, Arriaga-Barrientos’s claim appears beyond the scope of the Act, which requires a well-founded fear of persecution on account of a political opinion, membership in a social group, or another specifically enumerated basis. See 8 U.S.C. §§ 1101(a)(42)(A), 1158(a). Nonetheless, our cases require a more extensive discussion of the issue.

A.

We have held that political neutrality is a political opinion, or in other words, that the absence of a political opinion is a political opinion. See, e.g., Arteaga v. INS, 836 F.2d 1227, 1231-32 (9th Cir.1988); Bolanos-Hernandez v. INS, 767 F.2d 1277, 1286-87 (9th Cir.1984) (Bolanos-Hernandez)

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925 F.2d 1177, 91 Cal. Daily Op. Serv. 1142, 91 Daily Journal DAR 1848, 1991 U.S. App. LEXIS 2037, Counsel Stack Legal Research, https://law.counselstack.com/opinion/audelio-arriaga-barrientos-v-us-immigration-and-naturalization-service-ca9-1991.