USCA1 Opinion
June 4, 1996 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 95-1925
RODOLFO DE JESUS PINON-MACEO,
Petitioner,
v.
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
____________________
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
____________________
Before
Cyr, Boudin and Lynch,
Circuit Judges. ______________
____________________
Herbert P. Sklar for petitioner. ________________
James A. Hunolt, Attorney, Office of Immigration Litigation, _________________
Civil Division, Department of Justice, with whom Frank W. Hunger, ________________
Assistant Attorney General, Civil Division, and David V. Bernal, ________________
Senior Litigation Counsel, Civil Division, were on brief for
respondent.
____________________
____________________
Per Curiam. Rodolfo de Jesus Pinon-Maceo petitions for Per Curiam __________
review of a discretionary Board of Immigration Appeals order
denying his motion to reopen an earlier deportation hearing. The
motion to reopen indicated no abuse of discretion by the BIA, see ___
INS v. Doherty, 502 U.S. 314, 323 (1992), but simply attempted to ___ _______
relitigate the merits of the original claim for asylum, but see ___ ___
Caruncho v. INS, 68 F.3d 356, 359-62 (9th Cir. 1995), viz., that ________ ___ ____
deportation to Cuba would subject him to prosecution and
imprisonment for having jumped a Cuban vessel while docked in
Canada. The BIA upheld an Immigration Judge's ruling that
petitioner was ineligible, either for asylum or for the
withholding of deportation, since his asserted fears were
predicated on possible prosecution, not persecution.
A motion to reopen seeks permissive relief, see id. at ___ __
361, which may be denied solely because it introduces no
"'previously unavailable, material evidence . . . .'" Id. at 360 ___
(quoting Doherty, 502 U.S. at 323), as was the case here. The _______
motion to reopen alleged that petitioner would be exposed to
imprisonment or death for having jumped ship. It claimed that
the situation had been worsened by a more restrictive immigration
policy announced on May 2, 1995, pertaining to future Cuban
"rafters." The BIA concluded that petitioner had failed to
demonstrate that the motion to reopen was based on any new
evidence, the immigration policy on "rafters" notwithstanding.
We agree.
2
Petitioner has not shown, either before the BIA or
here, that the new immigration policy was material to his request ________
for asylum or withholding deportation. At most, the new
immigration policy allegedly exacerbated petitioner's fears of
"prosecution" for having jumped ship in violation of Cuban law,
as distinguished from a legitimate fear of "persecution." As
there was no error in the BIA determination that the claim for
asylum was unfounded because an "alien's prosecution and possible
imprisonment for civil or criminal violations pursuant to law do
not constitute persecution," there can have been no abuse of
discretion. See id. ___ __
The petition for review is denied. The petition for review is denied. _________________________________
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