Vicente v. INS

• Court: Court of Appeals for the Tenth Circuit
• Decided: June 27, 1997
• Docket: 96-9544
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUN 27 1997 FOR THE TENTH CIRCUIT PATRICK FISHER Clerk

ELISEO PELICO VICENTE,

Petitioner,

v. No. 96-9544 (Petition for Review) IMMIGRATION & (INS No. A73 737 696) NATURALIZATION SERVICE,

Respondent.

ORDER AND JUDGMENT *

Before BRORBY, BARRETT, and MURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Petitioner seeks review of a final order of the Board of Immigration

Appeals (BIA) denying petitioner’s request for asylum and withholding of

deportation. 1 The BIA found that petitioner did not qualify as a refugee, and

therefore, was ineligible for asylum, because he had not established the requisite

“well-founded fear 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).

We review the BIA’s determinations of law de novo, and we review its

factual findings about an alien’s refugee status under the substantial evidence

rule. See Refahiyat v. United States Dep’t of Justice INS, 29 F.3d 553, 556 (10th

Cir. 1994). We must uphold the BIA’s determination that petitioner was not

eligible for asylum if it is “supported by reasonable, substantial, and probative

evidence on the record considered as a whole.” 8 U.S.C. § 1105(a)(4). We may

1 The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009, alters the availability, scope, and nature of judicial review in INS cases. However, because petitioner’s deportation proceedings commenced before April 1, 1997, and the final decision of the BIA issued before October 31, 1996, neither IIRIRA’s permanent “new rules,” nor its interim “transitional rules,” apply to this case. See id. §§ 306(c)(1), 309(a), (c)(1) & (4), as amended Pub. L. No. 104-302, § 2, 110 Stat. 3657, set out in notes to 8 U.S.C. §§ 1101, 1252. In contrast, provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, may apply to INS cases commenced, like this one, before AEDPA’s enactment on April 24, 1996, see Fernandez v. INS, 113 F.3d 1151 (10th Cir. 1997), though none of these appear pertinent to this petition for review, which does not involve deportation for criminal activity addressed by AEDPA.

-2- reverse the BIA’s determination only if the evidence is “so compelling that no

reasonable factfinder could fail to find the requisite fear of persecution.” INS v.

Elias-Zacarias, 502 U.S. 478, 484 (1992).

Petitioner, a Quiche Indian, is a citizen and native of Guatemala. He

entered the United States without inspection in December 1993, after leaving

Guatemala and living in Mexico for four months. Petitioner conceded

deportability at his deportation hearing, but claimed that he had a well-founded

fear of being persecuted by guerillas on account of his political opinion if he

returned to Guatemala. Petitioner testified that the guerillas frequently came to

his village, rounded up all the young men, and tried to recruit them. Petitioner

said that twice he was taken by the guerillas and beaten, but he managed to

escape. While in hiding after his second escape, petitioner learned that the

guerillas had gone to his parents’ home looking for him. Fearing what the

guerillas would do to him if they found him, petitioner fled the country.

The BIA found that, even if petitioner’s testimony were entirely credible,

the evidence did not establish persecution on account of petitioner’s political

opinion; the guerillas were not concerned with petitioner’s political opinion, but

with recruiting able-bodied young men to help their cause, see id. at 482 (noting

that the persecution must be “on account of the victim’s political opinion, not the

-3- persecutor’s”). Our review of the record does not compel a contrary determination.

Petitioner argues that his resistance to recruitment constituted political

opinion, because when he told the guerillas he did not want to join them, they

beat him. Petitioner’s testimony, however, did not establish that there was any

expression of political opinion on his behalf. Instead, it showed that he resisted

recruitment because he did not want to be involved in killing people or other

violent acts and because of his home and family. Moreover, even if petitioner

held a political opinion, the evidence did not compel a conclusion that the

guerillas persecuted petitioner because of that political opinion, rather than

because he refused to fight with them. See id. at 483.

We, therefore, conclude that substantial evidence supports the BIA’s

determination that petitioner did not establish a well-founded fear of persecution.

This determination is fatal to petitioner’s claim for withholding of deportation, as

well. See Castaneda v. INS, 23 F.3d 1576, 1578 (10th Cir. 1994). The petition

for review is DENIED.

Entered for the Court

James E. Barrett Senior Circuit Judge

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