Pinon-Maceo v. INS

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June 4, 1996 [NOT FOR PUBLICATION]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.




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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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