Hernandez-Recinos v. INS

UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ALVARO ANIVAL HERNANDEZ-RECINOS,
Petitioner,

v.
No. 97-1573
U.S. IMMIGRATION &
NATURALIZATION SERVICE,
Respondent.

On Petition for Review of an Order
of the Board of Immigration Appeals.
(A29-914-456)

Submitted: January 13, 1998

Decided: February 24, 1998

Before HALL, ERVIN, and MICHAEL, Circuit Judges.

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Petition denied by unpublished per curiam opinion.

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COUNSEL

Manuel Rivera, Jr., MANUEL RIVERA, ESQ. & ASSOCIATES,
Arlington, Virginia, for Petitioner. Frank W. Hunger, Assistant Attor-
ney General, Karen Fletcher Torstenson, Assistant Director, Office of
Immigration Litigation, Civil Division, UNITED STATES DEPART-
MENT OF JUSTICE, Washington, D.C., for Respondent.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Alvaro Anival Hernandez-Recinos petitions this court for review of
a final order of the Board of Immigration Appeals ("Board"), denying
his application for asylum and withholding of deportation. Because
substantial evidence supports the Board's decision, we deny the peti-
tion.

Hernandez-Recinos, a native and citizen of Guatemala, served as
an active member of the Guatemalan military for fifteen years. Fol-
lowing his tenure with the military, he volunteered during the next
thirteen years as an active military commissioner. As a military com-
missioner, Hernandez-Recinos was authorized to carry weapons, and
his duties included recruiting for the armed services, guarding govern-
ment installations, and reporting suspected criminal activity within
the neighborhood. During his last year as a volunteer commissioner,
Hernandez-Recinos was arrested for murder and jailed for several
months. He was later cleared of the charges and released. Hernandez-
Recinos believed that those persons whom he had previously reported
for suspected drug trafficking had falsely initiated the murder charges
against him.

Sometime after his release, Hernandez-Recinos received two anon-
ymous notes that threatened he would be harmed if he did not leave
town. Although Hernandez-Recinos remained in Guatemala, he
moved to a neighboring town where he lived with his father, returning
to his hometown during the day to work and visit his family.
Hernandez-Recinos later moved to Belize, where he lived and worked
with friends and relatives. However, still in fear, Hernandez-Recinos
fled to the United States, entering the country illegally. The Immigra-
tion and Naturalization Service initiated deportation proceedings.
Hernandez-Recinos conceded deportability but sought asylum and
withholding of deportation.

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The Immigration and Nationality Act ("the Act")1 authorizes the
Attorney General, in her discretion, to confer asylum on any refugee,
defined as a person unwilling or unable to return to his native country
"because of persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a particular
social group, or political opinion."2 The "well-founded fear of perse-
cution" standard contains both a subjective and an objective compo-
nent. Presenting candid, credible, and sincere testimony, which
demonstrates a genuine fear of persecution, satisfies the subjective
element.3 The objective element requires a showing of specific, con-
crete facts that would lead a reasonable person in like circumstances
to fear persecution.4 Further, to qualify for withholding of deporta-
tion, a standard much more stringent than that for granting asylum, an
applicant must demonstrate "a clear probability of persecution."5

We must uphold the Board's decision that Hernandez-Recinos is
not eligible for asylum or withholding of deportation if that determi-
nation is supported by substantial evidence from the record as a whole.6
The decision may be reversed only if a reasonable factfinder would
have to conclude that the requisite fear of persecution existed.7

Hernandez-Recinos contends that the Board erred in finding that he
had no well-founded fear of persecution. After a careful review of the
record, we find that the evidence does not compel the conclusion that
a reasonable person in Hernandez-Recinos's circumstances would
fear Government persecution upon return to Guatemala.8
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1 See 8 U.S.C.A. §§ 1101-1537 (West 1994 & Supp. 1997).
2 8 U.S.C.A. §§ 1101(a)(42)(A), 1158(a); see M.A. v. INS, 899 F.2d
304, 307 (4th Cir. 1990).

3 See Figeroa v. INS, 886 F.2d 76, 79 (4th Cir. 1989).

4 See Huaman-Cornelio v. Board of Immigration Appeals, 979 F.2d
995, 999 (4th Cir. 1992).
5 See INS v. Cardoza-Fonseca, 480 U.S. 421, 430-32 (1987).

6 See Huaman-Cornelio, 979 F.2d at 999.

7 See INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992).

8 See Huaman-Cornelio, 979 F.2d at 999.

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The record adequately supports the Board's finding that fear of ret-
ribution for reporting the suspected criminal activity of certain indi-
viduals does not rise to the level of a well-founded fear of government
persecution such that a reasonable person would fear returning to his
native country. Further, Hernandez-Recinos has not established that
he was singled out for mistreatment because of his membership in a
particular social group. There is no evidence that any other volunteers
serving as military commissioners were subject to persecution by the
controlling government regime. Accordingly, we conclude
Hernandez-Recinos does not meet the statutory definition of a refugee
and therefore is not eligible for asylum. Moreover, since Hernandez-
Recinos has not established his eligibility for asylum, he cannot sat-
isfy the higher standard for withholding of deportation.9

Accordingly, we deny the petition for review. We dispense with
oral argument because the facts and legal contentions are adequately
presented in the materials before the court and argument would not
aid the decisional process.

PETITION DENIED
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9 Id. at 1000.

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