F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
NOV 29 2001
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
PATRICIO LOBOS,
Petitioner,
v. No. 01-9501
(BIA No. A70-569-987)
IMMIGRATION & (Petition for Review)
NATURALIZATION SERVICE,
Respondent.
ORDER AND JUDGMENT *
Before KELLY , BALDOCK , and LUCERO , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant 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.
*
This order and judgment is not binding precedent, except under the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 Patricio Lobos, a Chilean citizen and native who has conceded
deportability, appeals from the decision of the Board of Immigration Appeals
denying his petition for asylum and for withholding of deportation. Exercising
jurisdiction under 8 U.S.C. § 1105a(a) (1995), 1
we deny the petition for review.
I. Relevant facts and proceedings
On December 28, 1991, petitioner 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 petitioner applied for asylum and withholding of
deportation.
1
As we recently explained,
[i]n 1996, 8 U.S.C. § 1105a was repealed by section 306(b) of the
Illegal Immigration Reform and Immigrant Responsibility Act
(IIRIRA), Pub.L. No. 104-208, 110 Stat. 3009. IIRIRA dramatically
changed the scope and nature of judicial review in exclusion cases.
But because the INS commenced deportation proceedings against the
petitioner before IIRIRA’s effective date, April 1, 1997, and the final
deportation order was entered after October 31, 1996, our review is
governed by the pre-IIRIRA rules as amended by IIRIRA’s
transitional rules. See IIRIRA § 306(c)(1), reprinted as amended in
8 U.S.C. § 1252 note; IIRIRA 309(a), (c)(1) & (4), reprinted as
amended in 8 U.S.C. § 1101 note. Under the transitional rules, §
1105a remains in effect but for minor procedural amendments.
Woldemeskel v. INS , 257 F.3d 1185, 1187 n.1 (10th Cir. 2001).
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Petitioner claimed that he had endured past persecution and feared future
persecution in Chile because of his political opinion and support of former
president Augusto Pinochet. As support, petitioner provided testimony that in
February 1991, he was abducted by a group of armed men, beaten, and threatened
that, if he and his father (the secretary of the national Railway Labor Union)
continued their opposition to President Aylwin, they would be killed. At his
hearing, petitioner testified that his abductors were left-wing members of the
government. The immigration judge noted, however, that the newspaper clipping
petitioner used to support his allegations stated that his abductors were extreme
leftist terrorists, not government agents, and was apparently based upon
petitioner’s account of the abduction. R. at 52. The judge also found that the fact
that petitioner did not leave Chile to come to the United States for ten months
after the incident notwithstanding that his visa was issued in August 1991
indicated that his fear of persecution was not substantial or genuine. The
immigration judge concluded that petitioner had not suffered past persecution
from governmental agents.
As to the issue of future persecution, the judge questioned petitioner’s
credibility based upon many inconsistencies in his testimony. He noted that
petitioner’s father had stayed in Chile without suffering actual persecution from
the government and had continued working in his job. The judge also took
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judicial notice of the Country Reports on Human Rights Practices for 1993 for
Chile, which were prepared by the United States Department of State. The report
stated that the current government was not responsible for any political killings or
disappearances. See R. at 101-03. The report also noted that the 1993 Chilean
government, which is now a “constitutional democracy,” id. at 106, “includes
many human rights leaders and victims in important positions.” Id. at 103.
According to the report, the judiciary was still dominated in 1993 by appointees
of former president Pinochet’s regime, id. at 104, a fact favorable to petitioner.
The new regime also limited the jurisdiction of military courts over the
prosecution of political crimes, id. , which was another fact indicating that judicial
persecution would be unlikely.
The judge considered that there had been two successive free elections
electing civilian presidents since 1990 and that human rights inquiries had
been centered on prior administrations, including former president Pinochet’s.
The political entity petitioner had been involved with in 1991 no longer
independently existed, having joined with a larger political group. The
immigration judge determined that, because petitioner’s father was retiring within
the year and would no longer have the same kind of political influence, any
threats based upon his father’s support of Pinochet would decrease or disappear.
Thus, the immigration judge concluded that petitioner’s fears of future
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persecution were overstated and that country conditions had changed. Finally, the
judge believed that, if petitioner had really come to the United States out of a
genuine fear of persecution, he would have immediately applied for asylum
instead of waiting ten months after his visa ran out.
In August 1994, the immigration judge denied petitioner’s application,
concluding that he had not established statutory eligibility for asylum. The judge
granted the government’s request for voluntary departure on or before October 1,
1994. In an order dated December 18, 2000, the Board of Immigration Appeals
(BIA) affirmed the immigration judge’s decision and this petition for review
followed.
II. Discussion
An application for asylum involves two steps. First, the applicant must
prove statutory eligibility by establishing refugee status. 8 C.F.R. § 208.13(a);
Kapcia v. INS , 944 F.2d 702, 706 (10th Cir. 1991). To do so, the applicant must
demonstrate 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.” 8 U.S.C. § 1101(a)(42)(A).
“Persecution” means the “infliction of suffering or harm upon those who differ
(in race, religion, or political opinion) in a way regarded as offensive” and
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“encompasses more than just restrictions or threats to life and liberty.” Baka v.
INS , 963 F.2d 1376, 1379 (10th Cir. 1992) (quotations omitted).
Analysis of a claim based on a “well-founded fear of [future] persecution”
includes a subjective and an objective component. Kapcia , 944 F.2d at 706. The
applicant proves the objective component by “credible, direct, and specific
evidence in the record, of facts that would support a reasonable fear that the
petitioner faces persecution.” Id. at 706 (quotation omitted); see also 8 C.F.R. §
208.13(b)(2)(i)(B) (applicant must prove “reasonable possibility” of future
persecution). If an objective basis is shown, the applicant must further show that
his subjective fear is genuine. Kapcia , 944 F.2d at 706.
If an applicant demonstrates statutory eligibility based on past persecution,
however, a rebuttable presumption of a reasonable fear of future persecution
arises. 8 C.F.R. § 208.13(b)(1); Nazaraghaie v. INS , 102 F.3d 460, 462 (10th Cir.
1996). To rebut the presumption, the INS must establish by a preponderance of
evidence that the applicant no longer has a well-founded fear of persecution
because country conditions have changed. 8 C.F.R. § 208.13(b)(1)(i)(A);
Nazaraghaie , 102 F.3d at 462. “[T]he immigration judge or [the BIA] may
take administrative notice of changed circumstances in appropriate cases, such as
where the government from which the threat of persecution arises has been
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removed from power.” Kapcia , 944 F.2d at 709 (quotations and emphasis
omitted).
If the applicant proves eligibility for refugee status, in the second step
of the application process, the Attorney General exercises “extremely broad”
discretionary judgment to grant or deny asylum. Id. at 708.
A. Standard of Review
We apply a substantial evidence standard to the BIA’s resolution of the
question whether an asylum applicant has established refugee status.
The BIA’s 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 by [the applicant] was such
that a reasonable factfinder would have to conclude that the requisite
fear of persecution existed.
INS v. Elias-Zacarias , 502 U.S. 478, 481 (1992) (citation omitted) (quoting
8 U.S.C. § 1105a(a)(4) (1995)). We will not, therefore, “weigh the evidence
or . . . evaluate the witnesses’ credibility.” Kapcia , 944 F.2d at 707 (quotations
omitted). At the second step, we review the BIA’s discretionary decision to deny
asylum for abuse of discretion. Id. at 708. We will not substitute our judgment
for that of the BIA, but we do require a “rational connection between the facts
found and the choice made.” Id. (quotations omitted).
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B. Analysis
1. Asylum. Petitioner claims that he has proven that he was
persecuted in the past by the Chilean government so as to create an unrebutted
presumption of fear of future persecution. We have carefully reviewed the record
and hold that the BIA’s factual and credibility determinations discussed, supra ,
are supported by substantial evidence on the whole record.
Petitioner also claims that he has proven a well-founded fear of future
persecution, entitling him to a grant of asylum and withholding of deportation.
Petitioner may prove a well-founded fear of persecution based on his political
opinion in either of two ways: by demonstrating that he would be personally
singled out for persecution in Chile if he returned, or by showing a reasonable
fear of persecution because of his membership in a group subject to “a pattern or
practice of persecution.” 8 C.F.R. § 208.13(b)(2)(iii)(A)-(B); Woldemeskel v.
INS , 257 F.3d 1185, 1190 (10th Cir. 2001). The group must consist “of persons
similarly situated to [him] on account of . . . political opinion.”
8 C.F.R. § 208.13(b)(2)(iii)(A); Woldemeskel , 257 F.3d at 1190-91.
The BIA concluded that petitioner failed to meet his burden of proof under
either approach, and we agree. Petitioner failed to show particularized
persecution by the government targeted at him or his family. Petitioner’s father’s
affidavit states only that he has been “put off” in his career, whatever that means,
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because he is not “a participant to the current government,” that someone had
thrown rocks against his house, and that he and his wife had received unspecified
“threats and insults over the telephone.” R. at 110. Petitioner admitted that,
although his father was still actively opposed to leftist government, he still
worked in the national railroad company. R. at 76. Thus, the record only
supports a finding that petitioner may experience political alienation and threats
because he disagrees with what he perceives to be the current government’s
policies. See Woldemeskel , 257 F.3d at 1191-92 (noting that disagreement with
governmental policies and termination of employment is insufficient to support a
grant of asylum); Baka , 963 F.2d at 1379 (well-founded fear must be based on
more than just restrictions or threats to life and liberty).
The record also supports the BIA’s decision that petitioner did not meet his
burden to establish a well-founded fear of persecution based upon a practice of
persecuting members of his political group. See Woldemeskel , 257 F.3d at 1191
(“A pattern or practice of persecution has been defined as something on the order
of organized or systematic or pervasive persecution.”) (quotation omitted). We
agree with the BIA that petitioner’s objective evidence indicates that persecutions
and killings of individuals who had supported Pinochet were conducted by leftists
terrorists and not by the Chilean government, and that the government had
prosecuted those suspected in the killings. Petitioner simply provided no
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evidence that individuals or groups supportive of Pinochet’s former government
now, or have ever, suffered systematic or pervasive persecution from the new
government.
2. Withholding of deportation. Petitioner has likewise failed to
show entitlement to withholding of deportation. In order to demonstrate such
eligibility, the applicant must establish a “clear probability of persecution”
through presentation of “evidence establishing that it is more likely than not that
[the applicant] would be subject to persecution on one of the specified grounds.”
INS v. Stevic , 467 U.S. 407, 429-30 (1984). Because substantial evidence
supports the BIA’s decision denying his asylum claim, petitioner clearly could not
carry his burden under the more stringent standard required for withholding of
deportation. See Woldemeskel , 257 F.3d at 1193.
We accordingly DENY the petition for review and AFFIRM the BIA’s
decision to deny asylum and withholding of deportation and to grant voluntary
departure.
Entered for the Court
Bobby R. Baldock
Circuit Judge
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