Carranza-Martinez v. INS ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
JOSE REYNALDO CARRANZA-MARTINEZ,
Petitioner,
v.
No. 97-1260
U.S. IMMIGRATION &
NATURALIZATION SERVICE,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals.
(A70-122-386)
Argued: January 28, 1998
Decided: February 24, 1998
Before MURNAGHAN, NIEMEYER, and MOTZ,
Circuit Judges.
_________________________________________________________________
Petition for review denied by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Germaine Wright Sobral, GUTJAHR & MONTAGUT,
Falls Church, Virginia, for Petitioner. Ellen Sue Shapiro, Senior Liti-
gation Counsel, Office of Immigration Litigation, Civil Division,
UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondent. ON BRIEF: Frank W. Hunger, Assistant
Attorney General, Carl H. McIntyre, Jr., Senior Litigation Counsel,
Office of Immigration Litigation, Civil Division, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Jose Reynaldo Carranza-Martinez, an illegal alien, petitions for
review of a final deportation order issued by the Board of Immigra-
tion Appeals. Finding substantial evidence to support the Board's
decision, we deny his petition.
I.
Carranza, a 32-year-old native and citizen of El Salvador, entered
the United States illegally near Douglas, Arizona on or about Septem-
ber 9, 1991. Two days later, on September 11, 1991, the Immigration
and Naturalization Service (INS) issued an order to show cause as to
why he should not be deported for violating § 241(a)(1)(B) of the
Immigration and Nationality Act. See 8 U.S.C.A. § 1251(a)(1)(B)
(West Supp. 1997). Carranza admitted the violation and conceded
deportability, but requested asylum, withholding of deportation, or
voluntary departure in place of deportation.
At a hearing on the merits before an Immigration Judge (IJ) on
August 12, 1992, Carranza testified to the following events. In 1985,
he joined the El Salvadoran army, becoming a soldier in an elite anti-
terrorist group known as the ARCE battalion. The battalion often
engaged in warfare with El Salvador's Marxist guerrilla organization
known as the Farabundo Marti National Liberation Front, or FMLN.
Carranza served in this capacity as an active soldier from 1985 until
1988, and then as an army reservist from 1988 until 1990. During the
course of his time with the army, the FMLN questioned Carranza's
mother and murdered his father.
Carranza left the army in 1990. Shortly thereafter, the FMLN
abducted him. During the forty day abduction, the FMLN blindfolded
Carranza, strung him by his feet, threatened to kill him with guns,
2
knives, and grenades, and questioned him as to "information regard-
ing the high commands of the armed forces." The FMLN also forced
Carranza to dig what it said would be his own grave, and told him
"we're going to kill you if you don't cooperate, if you don't give us
information." Eventually, Carranza gave the FMLN information
regarding the location of his unit and its commanders. Carranza ulti-
mately gained a degree of his captors' trust, and escaped when they
left him unsupervised. The FMLN also abducted Carranza's brother
for six days, but released him, stating "the one that we really need to
kill is your brother."
Following his escape, Carranza moved around El Salvador, but
limited his movement to places with an army presence because he felt
safer in those areas. Thereafter he left the country and entered the
United States. Carranza fears returning to El Salvador because "there
is no peace in our country."
The IJ denied Carranza's pleas for asylum and withholding of
deportation, and granted his request for voluntary departure. The IJ
determined that Carranza failed to demonstrate past persecution or a
well-founded fear of persecution on account of his race, religion,
nationality, political opinion, or membership in a particular social
group. Carranza, therefore, did not fit the definition of "refugee" enti-
tled to asylum as defined by § 101(a)(42) of the Act. See 8 U.S.C.A.
§ 1101(a)(42)(A) (West Supp. 1997); see also Matter of Chen, 20 I
& N Dec. 16 (BIA 1989) (eligibility for asylum can be based on dem-
onstration of past persecution or a well-founded fear of future perse-
cution). The IJ further noted that "[i]nasmuch as the guerrilla
organization has entered into a cease fire and has signed accords
agreeing to demobilize . . ., we find that this is not a case in which
there is any presumption that any harm which was suffered in the
past, even if it were deemed to be persecution, is likely to continue
into the future." Thus, the IJ found that Carranza did not have a well-
founded fear of future persecution.
On January 31, 1997, the Board affirmed the decision of the IJ and
dismissed Carranza's appeal. The Board found that Carranza had
failed to demonstrate past persecution or a well-founded fear of future
persecution on account of a protected category. Further, the Board
took administrative notice of the State Department's 1995 Country
3
Reports on Human Rights Practices, which confirmed the end of El
Salvador's civil war and the democratic election of new leadership.
The Board reasoned that "[p]articularly in light of these political
changes in El Salvador, [Carranza] has not proven that anyone con-
nected with the guerrillas or any other entity in that country currently
maintains any interest in harming him so as to demonstrate a well-
founded fear of persecution." Carranza then petitioned this court for
review.
II.
Carranza offers two arguments on appeal. First, he asserts that he
is a refugee as defined in the Immigration and Nationality Act
because he has demonstrated past persecution on the basis of his
political opinion, and thus has demonstrated his eligibility for asylum.
Alternately, he contends that he is a refugee because he possesses a
well-founded fear of future persecution based on his political opinion.
We find neither of Carranza's arguments meritorious, and deny his
petition for review.
We begin with the principle that illegal aliens do not possess an
entitlement to asylum in the United States. The Immigration and
Nationality Act authorizes the Attorney General, solely in her discre-
tion, to grant asylum to aliens that meet the definition of refugee. See
8 U.S.C.A. § 1158(a), (b)(1) (West Supp. 1997); INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992); Gebremichael v. INS, 10 F.3d
28, 35 (1st Cir. 1993); Huaman-Cornelio v. Board of Immigration
Appeals, 979 F.2d 995, 999 (4th Cir. 1992); Gutierrez-Rogue v. INS,
954 F.2d 769, 771-72 (D.C. Cir. 1992); M.A. v. INS, 899 F.2d 304,
307 (4th Cir. 1990) (en banc).
The Act defines a refugee as any person unable or unwilling to
return to his or her 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." 8
U.S.C.A. § 1101(a)(42)(A) (West Supp. 1997). The alien bears the
burden to prove eligibility for asylum. See Berroteran-Melendez v.
INS, 955 F.2d 1251, 1255 (9th Cir. 1992). Thus, an alien may qualify
for refugee eligibility for asylum if he or she demonstrates either
(1) past persecution based on any one of the protected factors, or
4
(2) a well-founded fear of future persecution based on one of the fac-
tors. See Gebremichael, 10 F.3d at 35; Huaman-Cornelio, 979 F.2d
at 999; Matter of Chen, 20 I & N Dec. 16 (BIA 1989).
We review the Board's determination that an alien is not eligible
for asylum for substantial evidence. We must uphold the Board's
determination unless the evidence shows that a reasonable fact finder
must conclude otherwise. See Elias-Zacarias, 502 U.S. at 481; Cruz-
Diaz v. INS, 86 F.3d 330, 331-32 (4th Cir. 1996); Huaman-Cornelio,
979 F.2d at 999.
A.
Carranza asserts that "[t]he fact that [his] detention, interrogation
and abuse was intended to obtain military intelligence information
does not mean that the persecution was not at least partially motivated
by political opinion," and that "the record reasonably shows that an
additional underlying reason for the abuse was the persecutor's belief
that as a former military member . . . detailed to combat guerrillas,
[Carranza] must have held political views opposed to the guerrillas."
Brief of Petitioner at 13. Thus, Carranza submits, the past persecution
he endured resulted from the political opinion imputed to him by the
FMLN. That the FMLN imputed this political opinion to him can be
deduced, Carranza maintains, from the fact that the guerrillas also
captured his brother and killed his father, acts which could have noth-
ing to do with obtaining information about the army.
Although Carranza states that he has "testified .. . concerning his
political opinion," id. at 18, the record reveals that he has done noth-
ing of the sort. Rather, Carranza testified that he joined the army not
as an expression of political opinion, but "out of fear of the guerril-
la[s] because I realize[d] that they were killing a lot of people." Fur-
ther, Carranza's testimony repeatedly demonstrates that, to the extent
that the FMLN persecuted him, it did not do so "on account of" any
political opinion imputed to Carranza due to his military service.
Rather, the FMLN persecuted him simply because he served in the
army.
In fact, Carranza's attorney asked Carranza at his hearing: "Why
do you think that members of the FMLN were going to kill you?"
5
Carranza answered: "[B]ecause I was their enemy . . . . I was a mem-
ber of the armed forces." Moreover, assuming arguendo, that
FMLN's abduction of Carranza's brother and murder of his father can
not be explained as an effort to obtain military information, Carranza
has failed even to suggest evidence that an imputed political opinion
motivated the action. Rather, he testified that FMLN killed his father
"[j]ust out of hate because you are a member of the armed forces.
That was their only reason."
Thus, Carranza's own statements compel us to conclude that
FMLN did not persecute him on the basis of his political opinion. Ser-
vice in the military is not of necessity a political statement. See Elias-
Zacarias, 502 U.S. at 482-83; Cruz-Diaz, 86 F.3d at 332; Arriaga-
Barrientos v. INS, 937 F.2d 411, 414 (9th Cir. 1991); Perlera-
Escobar v. Executive Office for Immigration, 894 F.2d 1292, 1298-99
(11th Cir. 1990). The Ninth Circuit has stated in a similar case that
"governmental efforts to quell . . . violence through the use of force
do not subject the entire military establishment to status-based perse-
cution." Arriaga-Barrientos, 937 F.2d at 414; see also M.A., 899 F.2d
at 315 (males of military draft age do not constitute a particular social
group for refugee purposes). Nor do such efforts automatically afford
former army members refugee status on the basis of imputed political
opinion. "Military enlistment in Central America does not create auto-
matic asylum eligibility within the United States." Arriaga-
Barrientos, 937 F.2d at 414.
We do not hold that a former soldier can never demonstrate that a
guerrilla organization persecuted him based on his political opinion.
We merely hold that Carranza has failed to prove this.
B.
Carranza also argues, as a separate basis for his eligibility, that he
has demonstrated a well-founded fear of future persecution. He claims
that he and his family are subject to continuing threats and violence,
and establishes that the FMLN guerrillas intend to pursue him. Car-
ranza asks: "Is it unreasonable to conclude that the guerrillas involved
would not harbor the continued intent to harm [Carranza] today?"
Brief of Petitioner at 16-17. That, however, is not the question before
the court. The question before us is whether substantial evidence sup-
6
ports the Board's determination that Carranza does not have a well-
founded fear of future persecution based on one of the statute's enu-
merated categories.
A well-founded fear of future persecution includes both subjective
and objective elements. See Huaman-Cornelio, 979 F.2d at 999; M.A.,
899 F.2d at 311. An alien may satisfy the subjective prong with credi-
ble testimony that reveals a genuine fear of persecution. See
Berroteran-Melendez, 955 F.2d at 1256. To satisfy the objective
prong, an alien must offer specific, concrete facts demonstrating that
a reasonable person in similar circumstances would fear persecution.
See Cruz-Diaz, 86 F.3d at 331; Huaman-Cornelio, 979 F.2d at 999.
Moreover, the Board may take administrative notice of changed cir-
cumstances and conditions in a country, and may make reasonable
inferences therefrom regarding the foundation for fear of persecution.
See Gebremichael, 10 F.3d at 37; Gutierrez-Rogue, 954 F.2d at
771-72; Rivera-Cruz v. INS, 948 F.2d 962, 966-67 (5th Cir. 1991);
Kubon v. INS, 913 F.2d 386, 388 (7th Cir. 1990).
INS does not contend that Carranza fails the subjective prong of
the well-founded fear test, and therefore we need not address that
issue further. As for the objective prong, however, the only evidence
before us -- an opinion letter issued by the Office of Asylum Affairs
and the State Department's country report -- supports the Board's
conclusion that, given the changed military and political conditions in
El Salvador, Carranza "has not proven that anyone connected with the
guerrillas or any other entity in that country currently maintains any
interest in harming him so as to demonstrate a well-founded fear of
persecution." Carranza has offered nothing to contradict the conclu-
sion other than a naked assertion that "there is no peace in our coun-
try." Twelve years have passed since the murder of Carranza's father
at the height of El Salvador's internal strife, and almost eight years
have elapsed since Carranza's own abduction by the guerrillas. The
evidence indicates that during this period civil unrest in El Salvador
has largely subsided in response to U.N.-sponsored peace accords and
democratic elections. Given this record, we find no reason to upset
the Board's decision.
Carranza's "well-founded fear" claim fails for another reason: Car-
ranza has not demonstrated that any persecution he fears, whether
7
well-founded or not, stems from his political opinion. Indeed, his tes-
timony indicates that his fear stems from the mere fact of his military
service and information the guerrillas have about that service. As dis-
cussed above, this concern does not amount to fear of persecution on
account of political opinion.*
III.
For the reasons stated above, we hold substantial evidence supports
the Board's determination. Accordingly, the petition for review is
DENIED.
_________________________________________________________________
*The Board determined that "inasmuch as [Carranza] has failed to sat-
isfy the lower burden of proof required for asylum, it follows that he has
failed to satisfy the clear probability standard . .. required for withhold-
ing of deportation." Carranza neglected to properly list this issue in his
brief as required by Fed. R. App. P. 28(a)(3). He does, however, briefly
assert that he has demonstrated eligibility for withholding of deportation,
see Brief of Petitioner at 19, so we will address the contention. Resolu-
tion of the issue is simple. As stated in Huaman-Cornelio, 979 F.2d at
1000, our conclusion that Carranza failed to meet the asylum standard
"necessarily means that [he] did not meet his burden on the more diffi-
cult withholding of deportation claim."
8