Regalado-Garcia v. INS ( 2002 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 02-1402
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Cesar Enrique Regalado-Garcia, *
*
Petitioner, *
* Petition for Review of an
v. * Order of the Board of
* Immigration Appeals.
Immigration and Naturalization *
Service, *
*
Respondent. *
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Submitted: August 20, 2002
Filed: October 1, 2002
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Before WOLLMAN, RILEY, and MELLOY, Circuit Judges.
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WOLLMAN, Circuit Judge.
Cesar Enrique Regalado-Garcia, a native and citizen of Mexico, petitions for
review of a final order of the Board of Immigration Appeals (BIA). The BIA
affirmed the Immigration Judge’s denial of Regalado-Garcia’s applications for
asylum, withholding of removal, and voluntary departure. For the reasons stated
below, we deny Regalado-Garcia’s petition.
I.
A. Procedural Background
Regalado-Garcia entered the United States illegally in June 1991. In December
1995, he was arrested by Immigration and Naturalization Service (INS) officials in
Fargo, North Dakota. The INS issued an order to show cause charging Regalado-
Garcia with entering the United States without inspection. Deportation proceedings
were held, which Regalado-Garcia did not attend, and a deportation order was entered
against him in absentia on September 10, 1996. On January 28, 1997, Regalado-
Garcia filed an application for asylum and to withhold removal pursuant to sections
208 and 243(h) of the Immigration and Nationality Act (INA), 8 U.S.C. §§ 1158,
1253(h) (1994).1 An Immigration Judge denied Regalado-Garcia’s application for
asylum, withholding of removal, and voluntary departure, and ordered that he be
deported to Mexico. Regalado-Garcia appealed to the BIA. On January 14, 2002, the
BIA denied his application for asylum and withholding of removal on grounds that
he failed to establish past persecution or a well-founded fear or clear probability of
persecution in Mexico based on his membership in one of the five protected statutory
classes. 8 U.S.C. §§ 1101(a)(42)(A), 1158, 1253(h) (1994); 8 C.F.R. § 208.13(2001). The BIA also denied Regalado-Garcia’s appeal of the Immigration Judge’s
denial of his request for voluntary departure under section 244(e) of the INA.2
1
Congress revised the withholding of removal provisions, 8 U.S.C. § 1253(h),
in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009-546 (Sept. 30, 1996), as amended by
the Extension of Stay in United States for Nurses Act of October 11, 1996, Pub. L.
No. 104-302 § 2, 110 Stat. 3656. The withholding provisions are now codified at 8
U.S.C. § 1231(b)(3). See INS v. Aguirre-Aguirre, 526 U.S. 415, 420 (1999).
2
Section 244(e) of the INA, codified at 8 U.S.C. § 1254, was repealed by the
IIRIRA. Pub. L. 104-208, 110 Stat. 3009-615. We lack jurisdiction to review denial
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B. Factual Background
Regalado-Garcia contends that between 1983 and his departure from Mexico
in 1991, he was persecuted by officers acting on behalf of the Mexican government
because of his involvement in two Mexico City organizations, the Sindicato Unico
de Trabajadores de Autotransportes Urbanos de Pasajeros Ruta 100, or Union of
Urban Passenger Transportation Route 100 (SUTAUR-100), and the Movemiento
Proletario Independiente, or Independent Proletariat Movement (MPI). SUTAUR-
100 is the bus-workers union affiliated with Regalado-Garcia’s then employer, Ruta-
100, or Route 100 Bus Company (Ruta-100). MPI is a local political organization
sponsored by SUTAUR-100. At the time, membership in SUTAUR-100 was required
for Ruta-100 employees; Regalado-Garcia joined MPI in conjunction with
membership in SUTAUR-100. Deductions for dues to both organizations were taken
from the pay of Ruta-100 employees. Regalado-Garcia asserts that SUTAUR-100
and MPI are anti-government organizations. He contends he has a well-founded fear
of continued persecution should he return to Mexico because of his involvement with
these organizations.
II.
The proceedings in this case began prior to April 1, 1997, the date on which the
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA) took
of Regalado-Garcia’s request for voluntary departure. The IIRIRA’s transitional rules
preclude judicial review “of any discretionary decision under section 244 of the
[INA],” the provision in question here. IIRIRA § 309(c)(4)(E); Antonio-Cruz v. INS,
147 F.3d 1129, 1130 (9th Cir. 1998). A grant of voluntary departure is such a
discretionary decision. Shkukani v. INS, 435 F.2d 1378, 1380 (8th Cir. 1971).
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effect. IIRIRA, Pub. L. No. 104-208, 110 Stat. 3009 (1996). Generally, IIRIRA’s
amendments do not apply to deportation proceedings or asylum actions initiated prior
to that date. Fisher v. INS, 291 F.3d 491, 496 (8th Cir. 2002); Afolayan v. INS, 219
F.3d 784, 787 (8th Cir. 2000). Because Regalado-Garcia filed his petition for asylum
on January 28, 1997, and the BIA’s decision was issued after October 31, 1996, we
cite and apply the pre-IIRIRA version of the INA. Fisher, 291 F.3d at 496. Our
review is governed by the repealed section 1105a and by transitional rules not
relevant to the issues presented on appeal. Menjivar v. INS, 259 F.3d 940, 941 n.1
(8th Cir. 2001).
We review the factual findings underlying the BIA’s denial of an appeal under
the substantial evidence standard. INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992);
Tang v. INS, 223 F.3d 713, 718 (8th Cir. 2000). We must deny Regalado-Garcia’s
petition for review if the BIA’s finding is supported by “‘reasonable, substantial, and
probative evidence of the record considered as a whole.’” Menjivar, 259 F.3d at 941
(citing Elias-Zacarias, 502 U.S. at 481). We review the BIA’s legal determinations
de novo, “according substantial deference to the [BIA’s] interpretation of the statutes
and regulations it administers.” Tang, 223 F.3d at 718-19.
A. Asylum
The Attorney General may confer asylum on any refugee. 8 U.S.C. § 1158;
Elias-Zacarias, 502 U.S. at 481; Francois v. INS, 283 F.3d 926, 930 (8th Cir. 2002).
To qualify as a refugee, an alien must be outside of his or her country of nationality
and “unable or unwilling to return to . . . 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 . . . .” 8 U.S.C. § 1101(a)(42)(A);
Francois, 283 F.3d at 930.
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Persecution is the infliction or threat of death, torture, or injury to one’s person
or freedom, on account of race, religion, nationality, membership in a particular social
group, or political opinion. Fisher, 291 F.3d at 497 (citations omitted). While
Regalado-Garcia was an active participant in SUTAUR-100 and MPI, attending
protests and disseminating propaganda in Mexico City, the BIA did not find
substantial evidence to establish that Regalado-Garcia was a victim of persecution in
Mexico between 1983 and 1991 resulting from such involvement, as he alleges.
Regalado-Garcia was never detained or arrested while participating in or advertising
public demonstrations. Regalado-Garcia recounted two incidents to substantiate his
claim of persecution: his brief detainment and questioning by alleged members of the
judicial police and his alleged flight from unidentified individuals he presumed were
police officers. Neither of these incidents resulted in physical injury or harm to
Regalado-Garcia. As the Immigration Judge held, these discrete incidents do not
constitute persecution. Thus, the record does not show substantial evidence of threats
or specific incidents of violence sufficient to constitute persecution directed against
Regalado-Garcia.
The BIA also did not find there to be substantial evidence that Regalado-Garcia
has a “well-founded fear of persecution” on account of his participation in SUTAUR-
100 and MPI. 8 U.S.C. § 1101(a)(42)(A). “An alien will be presumed to possess a
well-founded fear of future persecution if past persecution is established . . . .”
Francois, 283 F.3d at 930. Because past persecution was not established in this case,
Regalado-Garcia’s fear of future persecution cannot be presumed but must be shown.
“The petitioner’s fear must not only be actual, it must be objectively reasonable as
well, . . . the petitioner must show that ‘a reasonable person in the alien’s position
would fear persecution if returned to the alien’s native country.” Menjivar v. INS,
259 F.3d at 941 (citing Ghasemimehr v. INS, 7 F.3d 1389, 1390 (8th Cir. 1993)).
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Regalado-Garcia has failed to show that his fear of future persecution is well-
founded or reasonable. The BIA noted that more than a decade has passed since
Regalado-Garcia was an employee of Ruta-100 and an active member of SUTAUR-
100 and MPI. He did not maintain any connection with either organization after
leaving Mexico. Regalado-Garcia did not present any evidence that his family
members, including his brother, an employee of Ruta-100 and founder of SUTAUR-
100, have been persecuted or harassed by the Mexican government during this time.
The objective reasonableness of Regalado-Garcia’s fear of future persecution is
undermined further by the changed conditions in Mexico since 1991. See 8 C.F.R.
§ 208.13(b)(1)(i)(A); Menjivar, 259 F.3d at 942 (“[F]ear of future persecution was not
well founded because the events on which it was based occurred a decade ago, [and]
because conditions in El Salvador have markedly improved since the peace accords
of 1992 . . .”). In 1996, the Mexican government reached an agreement with
SUTAUR-100, authorizing the union to represent employees of two new bus lines in
Mexico City.
After considering the evidence and Regalado-Garcia’s contentions, we
conclude that the record supports the BIA’s determinations that Regalado-Garcia
neither was a victim of persecution nor has an objectively reasonable and well-
founded fear of future persecution. Accordingly, Regalado-Garcia does not a qualify
as a refugee and is ineligible for asylum.
B. Withholding of Removal
Regalado-Garcia must show a “clear probability” that he will face persecution
in Mexico to have his removal withheld pursuant to section 243(h) of the INA.
Francois, 283 F.3d at 932-33 (citation omitted). The “clear probability” standard is
more rigorous than that of well-founded fear required for a grant of asylum. Id.-6-
Because substantial evidence supports the BIA’s denial of Regalado-Garcia’s request
for asylum, substantial evidence likewise supports the BIA’s determination that
Regalado-Garcia has not shown a “clear probability” of persecution by the Mexican
government should he return to the country.
III.
The petition for review is denied.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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