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See 8 U.S.C. § 1253(h) (1996), repealed, Illegal Immigration Reform and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See 8 U.S.C. § 1254(e) (1996), repealed, IIRIRA, § 308(b)(7), Pub.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