Lopez-Gomez v. Ashcroft

REVISED - September 7, 2001

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-60891

Summary Calendar

RUBEN DARIO R. LOPEZ-GOMEZ; TERESA DEL CARMEN GOMEZ-PENATE,

Petitioners,

versus

JOHN ASHCROFT, U.S. Attorney General,

Respondent.

Petition for Review of an Order
of the Board of Immigration Appeals

September 7, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:

Petitioners Teresa Del Carmen Gomez-Penate and her son Ruben

Dario R. Lopez-Gomez challenge the decision of the Board of

Immigration Appeals denying asylum and denying withholding of

deportation. Petitioners argue that the BIA erred in placing on

them the burden of proof that relocation within their country of

nationality was not feasible. Because the BIA did not err, and its

decision was supported by substantial evidence, we affirm.
 I

Petitioners are both natives and citizens of Guatemala, born

in the Department of Jalapa. They were both active in UCN, a

centrist political party, until 1990 or 1991. Political violence

in Jalapa took a heavy toll on their family. Santiago Raymundo

Lopez, husband to Gomez-Penate and father of Lopez-Gomez, was a

bodyguard for a UCN congressman. He was shot and killed in 1988.

From that time until 1991, Gomez-Penate and Lopez-Gomez received

threats telling them to leave Jalapa. The source of these threats

appears to be rival political parties; the petitioners do not argue

that the government of Guatemala is behind the violence or threats.

Gomez-Penate left Guatemala and entered the United States

illegally in 1991. Lopez-Gomez, after several attempts, reached

the United States and entered illegally in 1993. After Lopez-Gomez

entered the United States, both he and Gomez-Penate were served

with Orders to Show Cause charging them with deportability for

entering the United States without inspection. They admitted the

factual allegations of the charge and conceded deportability. They

applied for asylum,1 withholding of deportation,2 and voluntary

departure.3

1
See 8 U.S.C. § 1158(a) (1996).
2
See 8 U.S.C. § 1253(h) (1996), repealed, Illegal Immigration Reform and
Immigrant Responsibility Act of 1996, § 307(a), Pub. L. 104-208, 110 Stat. 3009-
612 (Sept. 30, 1996).

3
See 8 U.S.C. § 1254(e) (1996), repealed, IIRIRA, § 308(b)(7), Pub. L.
104-208, 110 Stat. 3009-615 (Sept. 30, 1996).

2
 On August 24, 1994, an Immigration Judge denied their

applications for asylum and withholding of deportation and granted

their applications for voluntary departure. Petitioners appealed

to the BIA. On November 20, 2000, the BIA issued an opinion

upholding the Immigration Judge’s ruling. Petitioners filed a

Petition for Review with this court, arguing only that they are

eligible for asylum.4

II

In reviewing a decision of the BIA, we review its rulings of

law de novo,5 but we will defer to the BIA’s interpretation of

immigration regulations if the interpretation is reasonable.6 We

review the BIA’s findings of fact for substantial evidence.7 We

therefore accept the factual findings of the BIA “unless the

evidence is so compelling that no reasonable fact finder could fail

to find otherwise.”8

4
Because the petitioners were placed in deportation proceedings before
April 1, 1997, and their final orders of deportation were issued by the BIA on
or after October 31, 1996, the transitional rules for judicial review of the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 apply. See
IIRIRA, §§ 306(c)(1), 309(a)-(c), Pub. L. No. 104-208, 110 Stat. 3009-306, 3009-
625 (Sept. 30, 1996).
5
See Mikhael v. INS, 115 F.3d 299, 305 (5th Cir. 1997)
6
See Faddoul v. INS, 37 F.3d 185, 188 (5th Cir. 1994); Mazariegos v.
Office of the U.S. Attorney General, 241 F.3d 1320, 1327 & n.4 (11th Cir. 2001);
see also Shalala v. Guernsey Memorial Hosp., 514 U.S. 87, 95 (1995) (deferring
to a “reasonable” interpretation of an agency regulation).
7
See Faddoul, 37 F.3d at 188.
8
Mikhael, 115 F.3d at 304.

3
 A grant of asylum may be based on past persecution or on a

well-founded fear of persecution in the country of origin9 on

account of race, religion, nationality, membership in a particular

social group, or political opinion. In this case, petitioners

argue that they have a well-founded fear of persecution. To show

a well-founded fear of persecution, an alien must have a subjective

fear of persecution, and that fear must be objectively reasonable.10

Upon a showing of a well-founded fear of persecution, the

Immigration Judge has discretion to grant asylum.11

III

A

In this case, the BIA accepted the petitioners’ contention

that they had a well-founded fear of persecution in Jalapa. The

BIA concluded, however, that the petitioners’ had not established

a well-founded fear of persecution in other parts of Guatemala.

Consequently, following its own precedents, the BIA held that the

possibility of relocation within Guatemala negated the petitioners’

claim of a well-founded fear of persecution.

9
See 8 C.F.R. § 208.13(b). We use “country of origin” as shorthand for
“country of nationality or last habitual residence.” This term describes the
country to which the alien will be deported. See 8 C.F.R. § 208.13(b)(1)-(2)
(1999).
10
Faddoul, 37 F.3d at 188.
11
See id.

4
 We consider the version of the applicable regulation, 8 C.F.R.

section 208.13, effective before January 5, 2001.12 This circuit

has not yet definitely determined whether the applicant for asylum

or the INS bears the burden of proving the possibility of

relocation with the alien’s country of origin. We have held that

“[w]hen a party seeking asylum demonstrates that a national

government is the ‘persecutor,’ the burden should fall upon the INS

to show that this government’s persecutive actions are truly

limited to a clearly delineated and limited locality and situation,

so that the applicant for asylum therefore need not fear a

likelihood of persecution elsewhere in the nation.”13 Today we hold

that, at least for cases where the applicant does not show past

persecution, when the applicant for asylum does not demonstrate

that a national government is the persecutor, the applicant bears

the burden of showing that the persecution is not geographically

limited in such a way that relocation within the applicant’s

country of origin would be unreasonable.

12
8 C.F.R. § 208.13 (1999). The parties do not dispute that application
of the former regulation. The current version of 8 C.F.R. § 208.13 specifies the
burdens of proof for showing the reasonableness of relocation for applicants for
asylum. Consistent with our interpretation of the prior version, the current
version of section 208.13 places the burden of proving that internal relocation
is not reasonable on the applicant for asylum when the applicant alleges a well-
founded fear of persecution and the persecutor is not the government or
government-sponsored. See 8 C.F.R. § 208.13(b)(3)(i) (2001). When the
persecutor is the government or government-sponsored, the INS bears the burden
of proof. See See 8 C.F.R. § 208.13(b)(3)(ii) (2001). When the applicant has
established past persecution, however, the INS always bears the burden of showing
that internal relocation would not be reasonable. See 8 C.F.R. §
208.13(b)(1)(ii).
13
Abdel-Masieh v. INS, 73 F.3d 579, 587 (5th Cir. 1996).

5
 The applicable statutes and regulations do not address the

possibility of relocation within a country.14 The applicable

regulation, the version of 8 C.F.R. § 208.13 effective prior to

January 5, 2001, does place the burden on the applicant for asylum

to establish eligibility for asylum. Thus, to the extent that

inability to relocate within one’s country of origin is necessary

to establish eligibility for asylum, the BIA’s interpretation of

the regulations is reasonable, and we will defer.

We conclude that the statute’s and regulation’s reference of

fear of persecution in one’s “country of nationality or last

habitual residence” identifies the nation as the relevant

geographic unit for purposes of determining asylum. Asylum is

granted when an alien cannot return to his country because of a

well-founded fear of persecution;15 but the alien need not return

to a particular part of his country of origin. Thus, when a person

can relocate within his country upon return, the extraordinary act

of granting asylum is not necessary. We are in agreement with

14
See 8 U.S.C. § 1158 (1996) (defining general parameters for granting or
denying asylum).
15
See 8 U.S.C. § 1101(a)(42)(A) (“The term ‘refugee’ means [ ] any person
who is outside any country of such person's nationality or, in the case of a
person having no nationality, is outside any country in which such person last
habitually resided, and who is unable or unwilling to return to, and is unable
or unwilling to avail himself or herself of the protection of, that 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.”).

6
our sister circuits in so holding.16 While the language of the

regulation may not require this reading, it is certainly reasonable

to conclude that the regulation embodies the policy that asylum in

the United States should be an option of last, rather than first,

resort for persons facing localized persecution in other countries.

Therefore, we defer to the BIA’s reasonable interpretation of

its governing statutes and regulations, and conclude that in cases

where the applicant has not shown that the government is the

persecutor, an applicant for asylum bears the burden of proving

that relocation within the applicant’s country of origin would not

be reasonable under the circumstances.17 When the persecutor is the

national government or sponsored by the national government,

however, the burden shifts to the INS to rebut the obvious

presumption of the national government’s willingness and ability to

persecute an individual anywhere within its jurisdiction.

B

Because the BIA made no error of law, we will reverse only if

no reasonable fact finder could have concluded that neither of the

petitioners could have relocated within Guatemala. We find that

the BIA’s determination was supported by substantial evidence. The

16
See Mazariegos v. Office of the U.S. Attorney General, 241 F.3d 1320,
1325-27 (11th Cir. 2001); Singh v. Moschorak, 53 F.3d 1031, 1034 (9th Cir. 1995).
17
We again note that we reserve the question of the burden of proof when
the applicant has shown past persecution.

7
threats directed towards Gomez-Paneta and Lopez-Gomez demanded that

they leave Jalapa; there was no intimation that they would be

unsafe elsewhere in Guatemala. Further, Lopez-Gomez testified that

he lived in Guatemala City, which is about 100 kilometers by road

from Jalapa, for two years without harm. We affirm the BIA’s

conclusion that Gomez-Paneta and Lopez-Gomez both failed to meet

their burdens of showing a well-founded fear of persecution in

Guatemala.

IV

For the foregoing reasons, the judgment of the BIA is

AFFIRMED.

8