Perez-Rul v. Immigration & Naturalization Service

51 F. App'x 301
CourtCourt of Appeals for the Tenth Circuit
DecidedNovember 20, 2002
Docket02-9519
StatusUnpublished

This text of 51 F. App'x 301 (Perez-Rul v. Immigration & Naturalization Service) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Perez-Rul v. Immigration & Naturalization Service, 51 F. App'x 301 (10th Cir. 2002).

Opinion

ORDER AND JUDGMENT *

HENRY, Circuit Judge.

After examining the briefs and appellate record, this panel has determined unanimously to honor the parties’ request for a decision on the briefs without oral argument. See Fed. R.App. P. 34(f); 10th Cir. R. 34.1(G). The case is, therefore, ordered submitted without oral argument.

Daniel Perez-Rul seeks review of an order of the Board of Immigration Appeals (BIA) dismissing his appeal from the denial of his application for asylum and withholding of deportation. Exercising jurisdiction under 8 U.S.C. § 1105a(a) (1995), we deny the petition for review.

I. BACKGROUND

Mr. Perez-Rul is a native and citizen of Mexico who seeks review of a final order of deportation issued by the BIA on February 25, 2002. On April 20, 1989, Mr. Perez-Rul entered the United States as a visitor. Because he stayed longer than the six months authorized by his visa, the Immigration and Naturalization Service (INS) instituted deportation proceedings against him, after which Mr. Perez-Rul applied for asylum and withholding of deportation.

On January 10, 1997, an immigration judge (IJ) found petitioner to be deporta-ble, denied his applications for asylum, withholding of deportation, and suspension of deportation, and granted him voluntary departure. Mr. Perez-Rul appealed the IJ’s decision to the BIA, which affirmed the IJ’s decisions and dismissed the appeal. Mr. Perez-Rul filed a timely petition for review of this final order of deportation.

In his brief in support of the petition for review, petitioner maintains the Board erred (1) when it denied his application for suspension of deportation under § 244 of the Immigration and Nationality Act (the “Act”), 8 U.S.C. § 1254(a)(1)(1994) (repealed by Pub.L. No. 104-208 (1996)); and *303 (2) when it found that Mr. Perez-Rule failed to establish past persecution and a well-founded fear of political persecution in Mexico.

II. DISCUSSION

A. Denial of application for suspension of deportation

Mr. Perez-Rul applied for a suspension of deportation under § 244 of the Act. Mr. Perez-Rul now contends that the IJ failed to consider the extensive evidence of the extreme hardship that Mr. Perez-Rul would endure should he be deported. Mr. Perez-Rul maintains that we review the BIA’s determination for an abuse of discretion. We disagree.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Pub.L. No. 104-208 (1996) (IIRIRA) “altered the availability, scope, and nature of judicial review in INS cases.” Rivera-Jimenez v. INS, 214 F.3d 1213, 1215 n. 1 (10th Cir.2000). Because Mr. Perez-Rul’s deportation proceedings began before April 1, 1997, and the BIA’s decision was entered more than thirty days after IIRIRA’s enactment date of September 30, 1996, IIRIRA’s transitional rules apply. See IIRIRA § 309(c)(4); Berehe v. INS, 114 F.3d 159, 161 (10th Cir.1997). The transitional rules provide that “there shall be no appeal of any discretionary decision under section 212(c), 212(h), 212(i), 244 or 245 of the Immigration and Nationality Act (as in effect as of the date of the enactment of this Act).” IIRIRA § 309(c)(4)(E).

The BIA upheld the IJ’s denial of petitioner’s application for suspension of deportation on the ground that petitioner failed to show he would suffer extreme hardship if he returned to Mexico. “[A] determination by the BIA that one seeking suspension of a deportation order has not shown extreme hardship is a discretionary decision.” Escalera v. INS, 222 F.3d 753, 755 (10th Cir.2000) (internal quotation marks omitted) (dismissing petition for review for lack of jurisdiction). Therefore, we have no jurisdiction to review the BIA’s denial of suspension of deportation under § 244.

B. Denial of asylum

In seeking asylum, Mr. Perez-Rul maintains that he has demonstrated past persecution and a well-founded fear of persecution by the Mexican government should he return there. To be granted asylum, an asylum applicant must first prove “statutory eligibility by establishing refugee status.” Woldemeskel v. INS, 257 F.3d 1185, 1188 (10th Cir.2001). The applicant can demonstrate eligibility by establishing “either past persecution or a well-founded fear of future persecution on account of race, religion, nationality, membership in a particular social group, or political opinion,” as manifested by an infliction of suffering or harm which is regarded as offensive and involves “more than just restrictions or threats to life and liberty.” Id. (internal brackets, quotation marks, and citations omitted).

Our “[ajnalysis of a claim specifically based on a well-founded fear of future persecution includes both a subjective and an objective component.” Id.

The applicant must first prove an objective basis by credible, direct, and specific evidence in the record, of facts that would support a reasonable fear that the petitioner faces persecution. If an objective basis exists, the applicant must show her subjective fear is genuine.

Id. at 1188-89 (quotations and citation omitted).

We apply a substantial evidence standard to the BIA’s resolution of the first step of an asylum claim.... The BIA’s *304 determination that the applicant is not eligible for asylum must be upheld if supported by reasonable, substantial, and probative evidence on the record considered as a whole. It can be reversed only if the evidence presented ... was such that a reasonable factfin-der would have to conclude that the requisite fear of persecution existed. We will not, therefore, weigh the evidence or ... evaluate the witnesses’ credibility.

Id. at 1189 (quotations and citations omitted).

The BIA weighed the IJ’s evaluation of Mr. Perez-Rul’s allegations. Mr. Perez-Rul, a member of the National Action Party, had received threats from members of the majority party in Mexico, the Revolutionary Institutional Party (PRI). During a demonstration with about 300 people in June 1988, he had been involved in physical confrontation that required medical treatment. Later in 1988, he received other threats and was “pushed” around by PRI members and told that “he should leave” while walking down the street. Rec. at 84 (Oral Decision of the Immigration judge, dated Jan.

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