Arsene v. INS ( 1997 )

UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 96-60009
(Summary Calendar)
_________________
COSTEL ARSENE,
Petitioner,
versus
IMMIGRATION AND NATURALIZATION SERVICE,
Respondent.
Appeal from the United States District Court
For the Eastern District of Louisiana
(A16-057-759)
February 17, 1997
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Costel Arsene, a thirty-two year old native of Romania who
entered the United States after jumping off a ship in the
Mississippi River, appeals the Board of Immigration Appeals (“BIA”)
decision affirming an Immigration Judge’s (“IJ”) decision denying
him asylum and withholding of deportation. We affirm.
*
Pursuant to Local Rule 47.5, the Court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in Local Rule 47.5.4.
I
In Romania, Arsene worked for ten years as a certified
technician qualified to treat industrial waste water. In 1986, a
workman spotted a small American flag displayed on Arsene’s desk
and reported Arsene to Romanian authorities. Officers ransacked
Arsene’s home late one night, informing Arsene that they were
searching for radios, typewriters, or “machines that can type
manifest[o]s.”
After searching Arsene’s home for two hours, the officers
handcuffed Arsene, blindfolded him, and took him to an unknown
location where he was questioned for two days by unidentified
security officers. They blinded him with bright lights and
questioned him regarding connections in democratic countries, Radio
Free Europe, and “machines” that could be used to print political
documents. The officers beat Arsene on five occasions during this
two-day detention, but eventually they released him after
instructing him to report to a police station each week to relate
his activities. Arsene made weekly reports as directed until the
Ceausescu government fell in December 1989.
After the revolution, Arsene joined a pro-monarchy group that
met in his apartment to plan demonstrations and prepare political
caricatures. Arsene worked to identify and denounce persons who
had “shot the . . . people” during the revolution. He also made
speeches in several cities to express his opposition to election of
a president with communist ties and to argue that individuals who
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had committed acts of brutality should be brought to trial. Arsene
testified before the IJ that during a pro-monarchy demonstration
the police watched while members of an opposing group beat Arsene
and his friends. Members of Arsene’s group were arrested during
legal election demonstrations, while others were dispersed with
water hoses. Arsene did not testify that he was arrested on any of
these occasions.2
Arsene decided to leave Romania in April 1994 after a district
attorney friend warned him that Arsene had made enemies of “the
people in power” as a result of his speeches and political
activities. The friend told Arsene that the police could “find
[Arsene] guilty” of unspecified crimes based on false testimony and
that, if incarcerated, Arsene could be the victim of an “accident”
on a prison work project. In May 1994, another lawyer friend told
Arsene that he was “supposed to leave the country” because Arsene
was “supposed to be in prison.” In September 1994, Arsene left
Romania for Turkey, where he lived for five months before coming to
the United States.
Arsene testified that his brother told him that Arsene had
been “convicted [of] four months of prison” since leaving Romania.
The IJ nonetheless denied Arsene’s request for asylum and
withholding of deportation, but granted him voluntary departure.
2
Arsene also testified that in 1993 he was transferred from a job at
a large textile factory to an isolated city water cleaning station where he had
only one co-worker, allegedly to keep him from having “contact with a lot of
people.”
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The IJ ordered Arsene deported to Romania if he did not depart
voluntarily.
In considering Arsene’s appeal, the BIA reviewed some Romanian
documents submitted by Arsene, noting that they indicated that
“some judicial action was to be commenced” against Arsene in May
1994. The BIA observed that the documents did not specify the
reason(s) for Arsene’s requested presence in court, and further
noted that Arsene worked in Romania without incident until
September 1994. The BIA also cited a State Department advisory
opinion dated May 15, 1995 that concluded that pro-monarchy views
are tolerated in Romania. Thus, the BIA affirmed the IJ’s decision
and dismissed Arsene’s appeal as to the denial of asylum and
withholding of deportation. The BIA, however, vacated the order
designating Romania as the country of deportation, instead
designating Costa Rica as the first country of deportation and
Romania as the alternative destination.
II
Absent a dispositive error of law, we will affirm the BIA’s
determination that Arsene was ineligible for asylum or withholding
of deportation if we find that its decision was supported by
substantial evidence in the record. 8 U.S.C. § 1105a(a)(4); INS
v. Elias-Zacarias, 502 U.S. 478, 481, 112 S. Ct. 812, 815, 117 L.
Ed. 2d 38 (1992); Faddoul v. INS, 37 F.3d 185, 188 (5th Cir. 1994).
To warrant reversal of the BIA’s decision, Arsene must “show that
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the evidence he presented was so compelling that no reasonable
factfinder could fail to find the requisite fear of persecution.”
Jukic v. INS, 40 F.3d 747, 749 (5th Cir. 1994) (quoting Elias-
Zacarias, 502 U.S. at 483-84, 112 S. Ct. at 817).
The Attorney General has discretion to grant asylum to
refugees. 8 U.S.C. § 1158(a); Jukic, 40 F.3d at 749. Because the
grant of asylum is discretionary, it involves two steps. Faddoul,
37 F.3d at 188. First, the alien must demonstrate that he has a
well-founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or political
opinion. Id. (citing 8 U.S.C. § 1158(a), incorporating 8 U.S.C. §
1101(a)(42)). An alien’s subjective fear of persecution will
satisfy this standard if “a reasonable person in [his]
circumstances would fear persecution if [he] were to be returned to
[his] native country.” Id. (quoting Guevara Flores v. INS, 786
F.2d 1242, 1249 (5th Cir. 1986), cert. denied, 480 U.S. 930, 107 S.
Ct. 1565, 94 L. Ed. 2d 757 (1987)). At a minimum, there must be
some particularized connection between the feared persecution and
the alien’s race, religion, nationality or other listed
characteristic. Id. Demonstrating such a connection requires the
alien to present “specific, detailed facts showing a good reason to
fear that he or she will be singled out for persecution.” Id.(quoting Zulbeari v. INS, 963 F.2d 999, 1000 (7th Cir. 1992)).
Once the alien demonstrates his eligibility, the decision to grant
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asylum is within the discretion of the IJ. Id.Withholding of deportation involves a slightly different
analysis. To be eligible for such relief, an alien must
demonstrate a “clear probability” of persecution upon return. Id.This standard contains no subjective component but requires a
higher objective likelihood of persecution than the “well-founded
fear” standard. Id.Arsene argues that he fears persecution in Romania based on
his political opinion. Specifically, he contends that his “arrest,
imprisonment, torture and constant surveillance . . . by the
government officials” constitutes persecution because of his
political opinion. He also argues that his in absentia conviction
validates the warnings from his attorney friends that he should
flee Romania to avoid arrest, imprisonment and possible murder, and
thus constitutes evidence of probable persecution upon return to
Romania.
Arsene’s arrest, imprisonment and beating, however, occurred
in 1986 and his weekly reports to police ended with the 1989
revolution. Moreover, he remained in Romania from 1989 to
September 1994, engaging in public political activities without
significant reprisal. See Novoa-Umania v. INS, 896 F.2d 1, 3, 5
(1st Cir. 1990) (explaining that substantial evidence supporting
denial of asylum included fact that petitioner lived without
incident for more than six months in El Salvador); Rodriguez-Rivera
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v. INS, 848 F.2d 998, 1006 (9th Cir. 1988) (explaining that
substantial evidence supporting denial of asylum included fact that
petitioner lived undisturbed for two months after guerrilla
threat). Because Arsene does not explain the nature of the charges
against him in Romania, a particularized connection between the
feared persecution and his political opinions is not apparent. See
Faddoul, 37 F.3d at 188 (“At a minimum, there must be some
particularized connection between the feared persecution and the
alien’s race, religion, nationality or other listed
characteristic.”). His bare allegations that he faces imprisonment
for his political opinions if returned to Romania and that he could
be murdered in a staged prison accident are not “so compelling that
no reasonable factfinder could fail to find the requisite fear of
persecution.” Elias-Zacarias, 502 U.S. at 483-84, 112 S. Ct. at
817; see also Jukic, 40 F.3d at 749 (explaining that
unsubstantiated allegations regarding fear are insufficient to
establish persecution).
In sum, the BIA’s decision is supported by substantial
evidence in the record. Accordingly, the BIA’s determination that
Arsene is not entitled to asylum must be upheld. In addition,
because Arsene is unable to demonstrate a well-founded fear of
persecution, he has not demonstrated a “clear probability” of
persecution as required for withholding of deportation. Jukic, 40
F.3d at 749-50; Faddoul, 37 F.3d at 190 n.7.
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AFFIRMED.
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