Gustavo Tecun-Florian v. Immigration and Naturalization Service

207 F.3d 1107, 2000 Daily Journal DAR 2753, 2000 Cal. Daily Op. Serv. 2010, 2000 U.S. App. LEXIS 3758

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 14, 2000
• Docket: 98-70682
• Status: Published

Opinions

REAVLEY, Circuit Judge:

Gustavo Tecun-Florian, a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal of the immigration judge’s decision denying his request for asylum and withholding of deportation.¹ We must deny the petition.

We have jurisdiction pursuant to 8 U.S.C. § 1105a(a). The proceedings against Tecun-Florian commenced before April 1, 1997, and the amended Act therefore does not apply. We review BIA decisions under the “substantial evidence” standard.²

I.

Facts

Before entering the United States in December 1991, Tecun-Florian lived in Nacinta, Guatemala. Anti-government guerilla forces attempted to recruit new members in Nacinta about every eight days. They would take the residents to the town’s ball field and talk with them as part of their recruitment effort. On other days, the Guatemalan army would similarly round up the residents and discourage them from supporting the guerillas.

Although Tecun-Florian refused to join the guerillas because they “were against the government” and “killing people” in violation of his sincerely held religious beliefs, he never told the guerillas this at the recruitment sessions. The guerillas could see that Tecun-Florian attended the Catholic church, and he believed that the guerillas learned his name by listening to children who called out to him on his way there.

On January 21, 1991, the guerillas kid-naped Tecun-Florian from a local restaurant and tortured him for ten days. A human rights group finally convinced the guerillas to free Tecun-Florian. He went into hiding for a month and then left for the United States in December 1991. Tec-un-Florian’s sister testified that the guerrillas most recently questioned her family about Tecun-Florian’s whereabouts ten days before the asylum hearing.

When asked what the guerillas’ motivation for torturing him was, Tecun-Florian testified on direct examination that “they had asked me to join the group and since I didn’t want to do it, that’s why they were going to kill me.” On cross-examination, he likewise testified that “they kidnapped me because I didn’t want to join their group.”

Tecun-Florian’s sister gave the following opinion of why her brother did not want to join the guerillas and why the guerillas tortured her brother:

Our religion doesn’t allow us to belong to that type of group because that type of group hurt people and our religion tells us that’s not good. Our religion tells us to do good to the people. And, probably, that’s why they sequestered him because they didn’t like that he didn’t want to be part of their group.

After living in the United States for three years, the Immigration and Naturalization Service raided Tecun-Florian’s employer and detained him. Tecun-Florian did not dispute his deportability, but he contended that he was eligible for asylum.

Tecun-Florian and his sister testified at the asylum hearing before the immigration judge. After taking evidence, the immigration judge found Tecun-Florian and his sister to be credible. The immigration judge also found, however, that there was “no evidence that the guerrillas ... were persecuting him due to his religious beliefs or political beliefs or opinions” and denied his application for asylum and withholding of deportation. The BIA, reviewing the record de novo, reached the same conclusion and found “that the respondent has not satisfactorily established that he faces persecution ‘on account of a qualifying ground.”

II.

Discussion

An alien “may be granted asylum in the discretion of the Attorney General if the Attorney General determines that such alien is a refugee within the meaning of [8 U.S.C.] section 1101(a)(42)(A).”³ A refugee is a person who is unwilling to return to his country because “of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”⁴

In INS v. Elias-Zacarias, the Supreme Court held that, in order to establish refugee status, an alien must demonstrate that the persecution against the alien must be actually motivated by one of the characteristics enumerated in 8 U.S.C. § 1101(a)(42)(A).⁵ Applying the substantial evidence standard, the Court then held that a guerilla organization’s attempt to force a person to join them, absent additional evidence that the conscription was motivated by that person’s political opinion, was insufficient to compel the BIA to find persecution became of political belief.

Although the record demonstrates that Tecun-Florian refused to join the guerillas because the guerillas’ actions violated his religious beliefs, the BIA could reasonably determine that the guerillas tortured Tecun-Florian solely in retribution for refusing to join their group — and not because of his religious or political beliefs. Tecun-Florian testified that the guerrillas told him that they were persecuting him because he refused to join them, and he himself believed that the guerillas acted out of retribution for his refusal to join. Tecun-Floriaris sister also testified that she believed the guerillas kidnapped her brother because he refused to enlist with them. The only evidence suggesting that the guerillas were motivated by anything other than his refusal to join them was the fact that they watched him going into the church. Bound by the authority of Elias-Zacarias, we must hold that the evidence presented was not “so compelling that no reasonable factfinder could fail to find the requisite fear of persecution.”⁶

On appeal, Tecun-Florian asserts that the guerillas persecuted him because they believed that he held political beliefs contrary to their own ideology. Citing Canas-Segovia v. I.N.S., he correctly states our holding that “[i]mputed political opinion is still a valid basis for relief after Elias-Zacarias.”'7 But, as discussed, the only evidence suggesting that the guerillas were motivated by anything other than Tecun-Florian’s refusal to join them was the testimony that they saw him going to church. We cannot say that the BIA was unreasonable in finding that the guerillas’ actions were not motivated by the guerillas’ perception of Tecun-Florian’s religious beliefs or political opinion.

Finally, Tecun-Florian contends that the guerillas persecuted him because of the political beliefs of his family.⁸ The only support for this argument is the fact that two of his brothers served in the civil patrol in Guatemala and one of those brothers also served in the Guatemalan army. Neither Tecun-Florian nor his sister testified, however, that their brothers’ civil patrol and army service motivated the guerillas to kidnap and torture Tecun-Flo-rian.

PETITION DENIED.

1 . 8 U.S.C. § 1158(a); 8 U.S.C. § 1253(h).

2 . Sangha v. INS, 103 F.3d 1482, 1487 (9th Cir.1997).

3 . 8 U.S.C. § 1158(a).

4 . 8 U.S.C. § 1101 (a)(42)(A).

5 . 502 U.S. 478, 483-484, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).

6 . Id. at 483-484, 112 S.Ct. 812.

7 . 970 F.2d 599, 601 (9th Cir.1992).

8 . See Del Carmen Molina v. I.N.S., 170 F.3d 1247 (9th Cir.1999).