George Lacson Gonzales, Purisima Manuel Gonzales, Joseph Manuel Gonzales, Georgina Mauel Gonzales v. Immigration and Naturalization Service

GEORGE LACSON GONZALES; PURISIMA MANUEL GONZALES; JOSEPH
MANUEL GONZALES; GEORGINA MANUEL GONZALES, Petitioners v.
IMMIGRATION AND NATURALIZATION SERVICE, Respondent.
No. 92-70230 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
.
October 8, 1993, ** Submitted, San Francisco, California ** The panel unanimously finds this case suitable for
disposition without oral argument. Fed. R. App. P. 34(a);
9th Cir. R. 34-4.
October 14, 1993, Filed

Subsequent History: Reported in Table Case Format at: 9 F.3d 1551.

Prior History:

Petition to Review a Decision of the Immigration and Naturalization Service. No. A27-579-116

Disposition:

AFFIRMED.

Judges:

Before: THOMPSON and O'SCANNLAIN, Circuit Judges, and NIELSEN, District Judge. *** *** Honorable William Fremming Nielsen, United States District Judge for the District of Washington, sitting by designation.

Opinion:

MEMORANDUM George Lacson Gonzales ("Gonzales"), his divorced wife Purisima Manuel Gonzales, and their two minor children Joseph Manuel Gonzales and Georgina Manual Gonzales (collectively "petitioners"), are natives and citizens of the Philippines. Petitioners appeal the Board of Immigration Appeal's ("BIA") order dismissing their appeal of the Immigration Judge's ("IJ") decision denying them asylum and withholding of deportation.[1] The adult petitioners also appeal the denial of voluntary departure. We have jurisdiction over this timely appeal under 8 U.S.C. 1105a(a). We affirm. FACTUAL AND PROCEDURAL BACKGROUND George Lacson Gonzales entered the United States on October 14, 1983, as a nonimmigrant visitor for pleasure. He was authorized to remain here until April 13, 1984. The remaining petitioners entered the United States on March 16, 1984, also as nonimmigrant visitors, with authorization to remain until September 15, 1986. Purisima Manuel Gonzales and the two children were denied status as permanent resident aliens on July 30, 1986. On July 31, 1986, the Immigration and Naturalization Service ("INS") issued the petitioners an order to show cause why they should not be deported from the United States. At a joint deportation hearing, the petitioners conceded deportability and requested political asylum under the Immigration and Nationality Act ("INA") § 208(a), 8 U.S.C. § 1158(a), and withholding of deportation under INA § 243(h), 8 U.S.C. § 1253(h), or in the alternative, voluntary departure under INA § 244(e), 8 U.S.C. § 1254(e). The United States Department of State's Bureau of Human Rights and Humanitarian Affairs issued an advisory opinion that George Lacson Gonzales railed to establish a well-founded fear of persecution. See 8 C.F.R. § 208.11(b). The IJ rendered an oral decision denying the petitioners asylum and withholding of deportation, denying the adult petitioners voluntary departure, and granting the minor children voluntary departure. The BIA affirmed the IJ's decision and dismissed the appeal. This appeal follows.

DISCUSSION

1. Asylum We review the BIA's denial of asylum for an abuse of discretion. Acewicz v. U.S. INS, 984 F.2d 1056, 1061 (9th Cir. 1993); Abedini v. U.S. INS, 971 F.2d 188, 191 (9th Cir. 1992). We review factual findings, including the BIA's determination that an alien has failed to prove a well-founded fear of persecution, under the substantial evidence test. Acewicz, 984 F.2d at 1061. Substantial evidence for the BIA's determination exists unless the evidence presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution. See INS v. Elias-Zacarias, 112 S. Ct. 812, 815-17 (1992). To be eligible for a discretionary grant of asylum, a petitioner must show either past persecution or a "well-founded fear" of future persecution in his native country on account of race, religion, nationality, membership in a particular social group, or political opinion. See 8 U.S.C. §§ 1158(a), 1101(a)(42)(A). A "well-founded fear" contains both a subjective component, requiring the fear to be genuine, and an objective component, requiring "a showing, by credible, direct and specific evidence in the record, of facts that would support a reasonable fear that the petitioner faces persecution." Diaz-Escobar v. INS, 782 F.2d 1488, 1492 (9th Cir. 1986). George Lacson Gonzales contends that he has a well-founded fear of political persecution if he returns to his native country because he refused to provide funds to the Communist Party of the Philippines (NPA). The testimony presented at the deportation hearing describing the incident giving rise to this claim generally tracks Gonzales' asylum application, declaration, and documentary evidence. In July 1983, he and his former wife were visiting relatives in a town away from their own residence. Seven armed members of the NPA came into the house uninvited and demanded money. The NPA also instructed those present that they must continue to give money to the NPA on a regular basis. Gonzales' father-in-law gave the NPA money at that time, but Gonzales never provided any further funds to the NPA. In September 1983, George Lacson Gonzales received a letter with a skull and crossbones on it, which he took to be a death threat from the NPA if money was not forthcoming. He reported the letter to the National Bureau of Investigation in the Philippines, which advised him to report the incident to the police. Gonzales did not do so for fear of reprisals from the NPA. Gonzales also testified that after he left the Philippines, his former wife's aunt was killed because she no longer contributed rice to the NPA and his former wife's cousin was taken to a field and told he would be killed if he did not give the NPA more money. An ice cream vendor and a pond attendant in the neighborhood were also killed by the NPA. Gonzales contends the BIA erred in determining that his failure to give the NPA money does not constitute "persecution on account of . . . political opinion" within the meaning of the INA. We disagree. The record suggests, as the BIA noted, that Gonzales expressed no opposition to the NPA or any other political opinion. He was only threatened because he was visiting the home of his relatives when the NPA came to extort money-- he was not specifically targeted. The Supreme Court has emphasized that "'persecution on account of . . . political opinion' in section 101(a)(42) is persecution on account of the victim's political opinion, not the persecutors." Elias-Zacarias, 112 S. Ct. at 816. The mere existence of a generalized "political" motive underlying the NPA's demands for money is inadequate to establish the proposition that Gonzales fears persecution on account of his own political opinion. See id. Gonzales' argument that the NPA imputed a political opinion to him based on his failure to give them money is unavailing. There is no evidence that the NPA believed Gonzales' failure to give them money was politically based. The NPA could construe his failure to give them money as a matter based purely on economics, such as an inability to pay or an unwillingness to depart with hard-earned money. See id. at 815-16 (a guerrilla organization's attempt to coerce a person into performing military service does not necessarily constitute persecution on account of political opinion because even a person who supports a guerrilla movement might resist recruitment for a variety of reasons, such as fear of combat, a desire to remain with one's family, and a desire to earn a better living in civilian life). Reversal of the BIA is not warranted because the evidence presented would not compel a reasonable factfinder to find the requisite fear of persecution because of political opinion. George Lacson Gonzales also contends the IJ, in evaluating his asylum eligibility, did not adequately consider his testimony about the death of his former wife's aunt and the abduction of his former wife's cousin. We will not consider this argument because our review is limited to the BIA's decision, not the IJ's decision. See Charlesworth v. INS, 966 F.2d 1323, 1325 (9th Cir. 1992) (BIA reviews IJ decision de novo, so any error by the IJ may be rendered harmless). "Were we to ignore the limited scope of our review, and instead review directly the decision of the immigration judge, the petitioners would be deprived of the BIA's de novo review." Acewicz, 984 F.2d at 1059. Finally, George Lacson Gonzales faults the BIA for only making a passing reference to the aunt's death and no reference to the cousin's abduction. Gonzales has not presented evidence that either of these incidents was due to the political opinion of the victim, nor has he presented evidence that these incidents created a pattern of persecution closely tied to him. Allegations of isolated violence are not enough to establish a well-founded fear. While these incidents lay evidence Gonzales' fear of the NPA, because he has not shown the existence of a political opinion, imputed or actually held, we need not consider whether he has demonstrated a reasonable fear of persecution on account of his opinion. 2. Withholding of Deportation We review the factual findings underlying the BIA's denial of withholding of deportation under the substantial evidence standard. Abedini, 971 F.2d at 191. To be entitled to withholding of deportation to the Philippines, Gonzales must show a "clear probability" that his life or freedom would be threatened in the Philippines on account of race, religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1253(h). This standard is more stringent than the well-founded fear standard for asylum. Acewicz, 984 F.2d at 1062. "Clear probability" requires a showing that it is more likely than not" that the alien will be persecuted upon deportation. INS v. Stevic, 467 U.S. 407, 424 (1984). Because Gonzales failed to demonstrate a "well-founded fear" of persecution to support eligibility for asylum, he a fortiori failed to demonstrate he is entitled to withholding of deportation under the stricter clear probability standard. See Acewicz, 984 F.2d at 1062. 3. Voluntary Departure We review discretionary denials of voluntary departure for an abuse of discretion. Abedini, 971 F.2d at 191. We may examine "only whether the Board actually exercised its discretion and whether it did so in an arbitrary and capricious manner." Id. at 193. Under the INA, the BIA has the authority to grant voluntary departure in lieu of deportation. 8 C.F.R. § 244.1. To be eligible for voluntary departure, an applicant must prove that he or she has been of good moral character for at least the five years preceding the application. 8 U.S.C. § 1254(e). In addition to the statutory eligibility requirements, the applicant must also show equities meriting such treatment. Abedini, 971 F.2d at 193. George Lacson Gonzales and Purisima Manuel Gonzales concede they attempted marriage fraud. In June 1984, George Lacson Gonzales divorced his wife Purisima of fifteen years so she could marry his brother, a United States citizen, for "immigration purposes only." George Lacson Gonzales continued to live with Purisima as husband and wife even after she married his brother. Purisima Gonzales stated in her affidavit that her marriage to Gonzales' brother was consummated. The brother, however, stated in his affidavit that the marriage was never consummated. The BIA did not find George Lacson Gonzales and Purisima Manuel Gonzales statutorily ineligible. Instead, the BIA denied them voluntary departure as a matter of discretion. As required, the BIA supported its conclusion with a reasoned explanation based on legitimate concerns. See id. The BIA stated that George Lacson Gonzales' and Purisima Manuel Gonzales' acknowledgment of attempted marriage fraud is a negative factor which justified discretionary denial of voluntary departure. The BIA did not abuse its discretion in denying them voluntary departure. AFFIRMED.

---

[1]Gonzales included his divorced spouse and children in his asylum application. See 8 C.F.R. §§ 208.3, 208.21. Neither his divorced spouse, nor the children, filed separate asylum applications. Given the disposition of the appeal, we need not address whether the former spouse may be included in the application.