Edmundo Omar Castaneda-Hernandez v. Immigration and Naturalization Service

826 F.2d 1526, 1987 U.S. App. LEXIS 11213
CourtCourt of Appeals for the Sixth Circuit
DecidedAugust 21, 1987
Docket86-3080
StatusPublished
Cited by11 cases

This text of 826 F.2d 1526 (Edmundo Omar Castaneda-Hernandez v. Immigration and Naturalization Service) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Edmundo Omar Castaneda-Hernandez v. Immigration and Naturalization Service, 826 F.2d 1526, 1987 U.S. App. LEXIS 11213 (6th Cir. 1987).

Opinions

MERRITT, Circuit Judge.

In this case arising under § 208(a) of the Immigration and Naturalization Act, 8 U.S.C. § 1158(a)(1982),1 the main question presented is whether the Board of Immigration Appeals correctly determined that petitioner was not eligible for asylum.

L

Petitioner is a 24 year-old native and citizen of El Salvador. He entered the United States on or about April 4, 1982 near Del Rio, Texas. On May 13, 1983, the Immigration and Naturalization Service issued an Order to Show Cause against petitioner charging that petitioner had entered the United States in violation of § 241(a)(2) of the Act, 8 U.S.C. § 1251(a)(2).2 Rec. 121. Petitioner’s deportation hearing convened on July 13, 1983. The immigration judge advised petitioner of his rights, after which petitioner admitted the allegations and conceded deportability. Petitioner later filed a completed Form 1-589 asylum application which serves as an application for withholding of deportation under § 243(h)(1) of the Act3 and for asylum under § 208 of the Act. 8 C.F.R. § 208.3(b); INS v. Stevic, 467 U.S. 407, 423 n. 18, 104 S.Ct. 2489, 2497 n. 18, 81 L.Ed.2d 321 (1984).

On his application, petitioner indicated that following primary school he attended one year of secondary school at the National Institute of Santa Ana in 1979-80. He stated that he left El Salvador on August 1. 1980 without exit permission — “[t]he violence had become so extreme that too many people were wanting to leave El Salvador.” Rec. 123. He stated that he did not obtain a U.S. visa since “[t]he expense is prohibitive” and “[vjisas were [being] denied because of the political situation.” Id. Petitioner spent 18 months in Mexico after leaving El Salvador without applying for asylum there and stated that he had “intended to come to the United States, but it was necessary for me to make some money to continue my journey.” Rec. 124.

In his request for asylum, petitioner explained the reason he would be subject to persecution as follows:

[1528]*1528All young men who are not in the military are subject to persecution. The level of political friction is such that no one is presumed to be neutral. A young man who is not or has not been a member of the military is presumed to be subversive and subject to imprisonment, torture or death by the military or paramilitary authorities.

Id. Petitioner further stated that “I am a young man and those who have been as actively critical of the policies of the Salvadoran government as I have been have suffered brutal persecution.” Id.

In an attachment to the application, petitioner enumerated three reasons for his desire to leave El Salvador. Rec. 126. First, he again emphasized that “just being a young person meant that I had to always be careful of the authorities.” Id. Second, he described an incident in which “one day, some men from the government with their faces covered picked me up from the center where I studied and hit me and a friend as we were walking. One of them took out a gun and put it in my mouth____” Id. Third, he referred to a subsequent threat by these individuals: “Later they told the two of us whom they had taken that we had to work with them____and that if we didn’t work with them that any day they would look for us to pay us back for not wanting to work with them.” Id.

On February 21, 1984, Immigration Judge J.P. Vandello entered his decision granting three months of voluntary departure but denying asylum and withholding of deportation. The immigration judge found that petitioner’s claim of persecution “must fail even under the most lenient standard.” JA 6. Immigration Judge Vandello analyzed petitioner’s claim as resting “on three cornerstones: that he is a young male, that he was a member of the Organization of Secondary Students, and that his departure from El Salvador will lead to his persecution.” Id. Commenting that conscription of young men is a sovereign prerogative, the immigration judge cited several cases to the effect that young urban males do not constitute a social group within the meaning of the Act. He also concluded that petitioner “had not shown that his alleged pamphlet activities [as a member of the Organization of Secondary Students] would make him an enemy of the government,” pointing out that those who detained him in August 1980 need not have released him. JA 7. Lastly, he stated that despite “isolated incidents described in publications” found among the exhibits, there was “no showing that a returning male is any more or less likely to be the victim of random violence than any other member of society.” Id. Therefore, he concluded, “I find that taking all testimony and evidence as true, and viewing it in a light most favorable to [petitioner], he has nonetheless failed in his burden under any standard.” Id.

Petitioner appealed this decision to the Board of Immigration Appeals on March 5, 1984, alleging two errors below: (1) “in finding that a young urban male from El Salvador who has never served in the military is not a member of a social group subject to a well-founded fear of persecution,” and (2) “in finding that a young Salvadoran male who had been detained, threatened, interrogated and beaten by men who identified themselves as [belonging] to the ‘Death Squads’ had not established a well-founded fear of being singled out for persecution.” Rec. 21.

The Board rendered its decision on December 31, 1985. It stated that petitioner “has not met the statutory standard of eligibility for asylum, regardless of whether his claim is assessed in terms of demonstrating a ‘clear probability,’ a ‘realistic likelihood,’ a ‘reasonable possibility,’ or a ‘good’ or ‘valid reason to fear’ persecution. We find no adequate demonstration that this alien’s claimed fear of persecution, based on any of the enumerated grounds within the Act for which asylum and withholding of deportation may be granted, has been shown.” JA 10. Specifically, the Board saw no connection between petitioner’s political activities and an incident in August 1980 during which he was interrogated by armed men in civilian clothes:

... [petitioner] did not claim nor does the record otherwise show that the government was aware of his activities in dis[1529]*1529tributing the pamphlets or that he was ever arrested and persecuted because of these activities____ [Petitioner] has not shown that the government has any interest in him or that his participation in a student organization more than five years ago represents a present risk of harm.

JA 11.

The Board also pointed out that petitioner’s claim in part derived from “his previous status as a student,” a status he need not resume. JA 12. Moreover, it rejected his argument that he would be persecuted as a member of a “particular social group,” whether this group was identified as being composed of young males, students, or students belonging to student organizations.

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826 F.2d 1526, 1987 U.S. App. LEXIS 11213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edmundo-omar-castaneda-hernandez-v-immigration-and-naturalization-service-ca6-1987.