Benito Eusebio Chanchavac v. Immigration and Naturalization Service

O’SCANNLAIN, Circuit Judge,

dissenting:

Here, the court reverses the BIA’s determination that the petitioner, Benito Eusebio Chanchavac (“Chanchavac”), has failed to demonstrate either that he has been persecuted in the past or that his fear of future persecution in Guatemala is otherwise objectively reasonable. Because substantial evidence supports the BIA’s determination, I must respectfully dissent. Chanchavac simply has not adduced evidence that is “so compelling that no reasonable factfinder could fail to find” that he has suffered past persecution or has a well-founded fear of future persecution. INS v. Elias-Zacarias, 502 U.S. 478, 484, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992).

I

Our decision in Prasad v. INS, 47 F.3d 336 (9th Cir.1995), plainly establishes that the BIA’s determination in this case rests on substantial evidence. In Prasad, we held that the petitioner, an ethnic Indian who resided in Fiji, had not provided “compelling” evidence of past persecution, despite the fact that he had demonstrated both that other ethnic Indians were routinely persecuted in Fiji due to their race and that he himself had been incarcerated, interrogated, and beaten by uniformed officials because of his activity in a political party led by ethnic Indians. See id. at 339 (‘While we certainly condemn the attack on Prasad, it is not, in our judgment, so overwhelming so as to necessarily constitute persecution....”). Moreover, our conclusion in Prasad was not altered by the fact that other ethnic Fijians had stoned the petitioner’s house and attempted to rob his family, see id. at 340 (“Other evidence ... is not enough, either alone or in combination with the above, to compel a factfinder to conclude that persecution or a well-founded fear of persecution existed.”), or by his claims that other family members had been raped and murdered by soldiers, see id. (“Attacks on family members do not necessarily establish a well-founded fear of persecution absent a pattern of persecution tied to the petitioners.” (emphasis added)).

Like the petitioner in Prasad, Chancha-vac’s testimony indicates that he endured only one physical assault that could be fairly characterized as the basis for an asylum claim: In 1992, soldiers entered his home and beat him and his father while asking Chanchavac about his “guerrilla friends.” The other assaults on Chancha-vac either did not involve physical abuse or were not on grounds enumerated in the Immigration and Nationality Act. See 8 U.S.G. § 1101(a)(42)(A). Nearly twenty years ago, Chanchavac was taken from his home and guarded at gunpoint while soldiers searched his home, but he does not claim that he was injured in any way during the incident. Twelve years ago, Chan-chavac was assaulted by guerrillas when they robbed and burned a public bus on which he was riding, but there is no reason to believe that they attacked his bus be*594cause of his race or political beliefs-or even because he was on it. The last assault occurred seven years ago, when some guerrillas attempted to abduct Chancha-vac, and he ascribes to them only the motive of wanting him as a comrade.

The majority nevertheless conjures up several imaginary differences in its attempt to distinguish Chanchavac’s case from that of the petitioner in Prasad. The majority notes, for instance, that the court in Prasad relied on the fact that the petitioner did not need any medical treatment. See supra at 590 n. 5. There is, however, ample evidence in this case that supports the conclusion that Chanchavac did not need medical attention either. Chancha-vac has not claimed that he required medical treatment after his run-in with the military, and he made no effort to seek it at that time. Although the majority suggests that Chanchavac’s failure to do so was the result of the fact that “[tjhere is no hospital, doctor, or any other medical facility in Xatinap,” see supra at 590, the record does not support the inference that medical care was not accessible. Chancha-vac acknowledged that it was available less than two miles from his home. Indeed, Chanchavac’s testimony strongly suggests that his failure to seek medical attention can be attributed instead to the fact that he was not significantly harmed, for his explanation that he did not seek medical treatment because “they ask a lot of questions” at the hospital betrays his belief that the risks of forgoing the care of a doctor were relatively slight.

The majority also implies that the court in Prasad relied significantly on the fact that the petitioner’s attackers were “individuals in civilian clothes.” Supra at 590 n. 5. This proposition is obviously overstated, however, for there was no question that several of the assailants in Prasad were “dressed in military uniforms” and took the petitioner “to a police station, where he was placed in a jail cell.” Prasad, 47 F.3d at 339; see also id. at 341 (“Fijian army personnel and others punched, kicked, interrogated, and imprisoned Prasad....”) (Pregerson, J., dissenting).

The majority also contends that Prasad is distinguishable because, in this case, there “is evidence that the government has a continuing interest in Chanchavac.” See supra at 590 n. 5. Chanchavac, however, has presented no more evidence than existed in Prasad to establish the government’s continuing interest. The majority notes that the Guatemalan military is rumored to have compiled a list of former residents of Chanchavac’s hometown. See id. Despite the majority’s dutifully ominous tone, however, Chanchavac has offered no hypothesis that the military is going to put the list to any sinister use-if the list exists at all. It is not our place to imagine the military’s nefarious purpose ourselves and fault the BIA for declining to partake of the fantasy.

The majority makes another remarkable attempt to distinguish this case from Pra-sad by observing that, in that case, “many of the petitioner’s relatives continued to reside in his home country without incident.” Id. Precisely the same thing, however, is true of Chanchavac’s relatives. After he left Guatemala, his three brothers continued to live, apparently unharmed, in his hometown for some time before coming to the United States, and his father, mother, and sister only moved to the neighboring town less than two miles away, where they have lived “apparently without incident.” 1 Prasad, 47 F.3d at 339. The majority makes much of the fact that two of Chanchavac’s more distant relatives *595have been slain since he left. There is nothing in the record, however, to indicate just how distantly related the deceased were, and Chanchavac’s testimony indicates that he has no idea why or by whom they were killed. In Prasad, we gave little consideration to the fact that the petitioner’s cousin had been murdered by soldiers, because the petitioner “did not indicate why they were singled out ... or attempt to establish a connection to the [petitioner].” Id. at 340. To the extent, then, that Prasad can be distinguished in light of the evidence in that case that the petitioner’s family was persecuted, it is only because the petitioner in Prasad had a stronger claim than Chanchavac does.

Failing to distinguish Prasad favorably on any specific and relevant basis, the majority resorts to the general and unsubstantiated observation that conditions in Fiji, from whence the petitioner in Prasad hailed, are not “at all analogous to conditions” in Chanchavac’s homeland of Guatemala. See supra at 590 n. 5. With all due respect, this observation is about as helpful as noting that Prasad was decided on a different day of the week. As we have repeatedly held, the general conditions in an asylum-seeker’s native land cannot provide the basis for his eligibility for asylum when evidence of particularized individual persecution is lacking. See, e.g., Martinez-Romero v. INS, 692 F.2d 595, 595-96 (9th Cir.1982). Moreover, nothing in the Immigration and Nationalization Act sets forth a different evidentiary standard for Guatemalans than for Indo-Fijians.

II

To hold, as the court does today, that the evidence here is “so compelling, that no reasonable factfinder could fail to find” that Chanchavac has an objectively reasonable fear of persecution, Elias-Zaearias, 502 U.S. at 484, 112 S.Ct. 812, despite our having reached the opposite conclusion on starkly similar facts in Prasad, makes a mockery of the substantial evidence standard to which we must adhere. Under that standard, we must defer to the determination of the BIA unless it would be plainly unreasonable to do so. “We are not permitted to substitute our view of the matter for that of the Board.” Prasad, 47 F.3d at 340. Because the majority does so, I respectfully dissent.2

. When asked at his deportation hearing why he thought his brothers ultimately came to the United States, Chanchavac stated that he did not know. When asked why he did not move with his parents and sister to the neighboring town, Chanchavac replied, "I have no idea why I didn't go.” These responses establish that Chanchavac does not believe that even the vicinity of his hometown was pervasively dangerous when he left-and there is no basis whatsoever for concluding that the area is any more dangerous now than it was then.

. Because I cannot agree that a reasonable factfinder would be compelled to conclude that Chanchavac has an objectively reasonable fear of persecution upon his return to Guatemala and thus is eligible for asylum, I must dissent all the more vigorously from the majority’s determination that “it is more likely than not” that his fears would actually be realized and that he is thus entitled to withholding of deportation. Cf. Prasad, 47 F.3d at 341 (noting that the petitioner must meet a "more stringent standard” to qualify for withholding of deportation than he must meet for asylum).