Donald Jose Narvaez-Delgado v. Immigration and Naturalization Service
- Document source:
-
Date:
24 May 1996
DONALD JOSE NARVAEZ-DELGADO, Petitioner, v. IMMIGRATION AND
NATURALIZATION SERVICE, Respondent.
No. 94-70878 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
April 10, 1996, ** Submitted, San Francisco, California ** The panel unanimously finds this case suitable for
decision without oral argument. Fed. R. App. 34(a) and Ninth
Circuit Rule 34-4.
May 24, 1996, FILED
Prior History:
Petition for a Review of a Final Order of the Board of Immigration Appeals. IN&S No. A28-740-603.Disposition:
PETITION FOR REVIEW DENIED. MOTION TO HOLD APPEAL IN ABEYANCE OR WITHHOLD THE MANDATE DENIED.Counsel:
For DONALD NARVAEZ-DELGADO, Petitioner: Angela M. Bean, Esq., NERVO & BEAN, San Francisco, CA. For IMMIGRATION AND NATURALIZATION SERVICE, Respondent: Regional Counsel, Western Region, Immigration & Naturalization Service, Laguna Niguel, CA. Ronald E. LeFevre, Chief Legal Officer, IMMIGRATION & NATURALIZATION SERVICE, San Francisco, CA. OIL, Anthony W. Norwood, Esq., Carl H. McIntyre, Jr., OFFICE OF IMMIGRATION LITIGATION, Civil Division, Washington, DC.Judges:
Before: NORRIS, WIGGINS, Circuit Judges, JONES, *** District Judge *** The Honorable Napoleon A. Jones, Jr., United States District Judge, Southern District of California, sitting by designation.Opinion:
MEMORANDUM * * This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3. Narvaez-Delgado, a native of Nicaragua, petitions for review of the Board of Immigration Appeals' (BIA) dismissal of an appeal from the Immigration Judge's denial of his application for asylum and withholding of deportation. Narvaez-Delgado argues that the BIA's decision that he lacked a reasonable and well founded fear of persecution upon returning to Nicaragua is unsupported by substantial evidence. He also argues that he has made a sufficient showing of past persecution either to entitle him to a presumption that he has a well founded fear of persecution in the future or to obviate the need for him to demonstrate a fear of future persecution. We have jurisdiction to review the BIA's decision pursuant to 8 U.S.C. § 1105(a). Because the BIA conducted a de novo review of the record, our review is limited to the decision of the BIA except to the extent that the Immigration Judge's opinion is expressly adopted by the BIA. Ghaly v. INS, 58 F.3d 1425, 1430 (9th Cir. 1995). In this case, the BIA conducted an independent review of the record and affirmed for the reasons set forth by the Immigration Judge. Thus, we review the Immigration Judge's decision and the additional reasoning of the BIA's decision. The factual determination that petitioner did not demonstrate a well founded fear of persecution or the existence of past persecution is reviewed for substantial evidence. Id. at 1429. Under the substantial evidence standard we defer to the BIA's factual findings unless the evidence presented by petitioner is so compelling that no reasonable factfinder could fail to find otherwise. Fisher v. INS, 79 F.3d 955, 961 (9th Cir. 1996) (en banc) (citing INS v. Elias-Zacarias, 502 U.S. 478, 483-84, 117 L. Ed. 2d 38, 112 S. Ct. 812 (1992). Narvaez-Delgado argues that he is a "refugee" within the meaning of section 101(a)(42)(A) of the Immigration and Nationality Act (Act), 8 U.S.C. § 1101(a)(42)(A). A refugee is an alien unwilling to return to his or her country of origin "because of persecution or a well-founded fear of persecution" on account of several named bases, including, relevant to this case, "membership in a particular social group or political opinion." Id. There is both an objective and subjective component to a showing of a well founded fear of persecution. Ghaly, 58 F.3d at 1428. "The objective component requires a showing by credible, direct and specific evidence in the record, of facts that would support a reasonable fear of persecution." Id. (quoting Arriaga-Barrientos v. INS., 925 F.2d 1177, 1178-79 (9th Cir. 1991). To obtain a withholding of deportation, Narvaez-Delgado would have to establish that there was a clear probability of persecution. INS v. Stevic, 467 U.S. 407, 81 L. Ed. 2d 321, 104 S. Ct. 2489 (1984). The BIA found that Narvaez-Delgado did not have well founded fear of persecution, that there was not a clear probability of future persecution, and that he was not subjected to past persecution. We hold that this finding is supported by substantial evidence. Narvaez-Delgado argues that he has established past persecution or a well founded fear of persecution primarily based on the following facts. While working as an accountant in the Ministry of Education, handling the distribution of UNESCO funds, petitioner was critical of the use that the Sandinistas were making of these funds and expressed this opinion. He was told to stop criticizing the decisions of his superiors. Later he was detained and jailed for 13 days on suspicion of embezzlement, but was released unharmed to continue his employment without any charges being brought. Because he lived in a home by himself after his companion moved to the United States, and because there was a housing shortage, the government wanted to take his home to use it as a health center, but this was never done. The wall around his house was knocked down, although it is unclear who was responsible. Further, several times he found graffiti painted on his house stating "Contra Revolutionary." At his hearing before the Immigration Judge, Narvaez-Delgado stated that he feared returning to Nicaragua because he would not have anywhere to live, because he didn't know if he could find work, and because of the war. The Immigration Judge found that Narvaez-Delgado did not have a well founded fear of persecution, nor had he suffered past persecution. We agree. The strongest evidence of possible persecution that petitioner presents are his 13 day detention on charges that were later dropped and the vandalism of his home. However, taking into account the totality of the circumstances of the story of petitioner's life in revolutionary Nicaragua, including his employment as a professional Sandinista-run Ministry of Education up until his departure, and also taking into account petitioner's inability, when asked, to articulate a fear of future persecution based on either political opinion or social group, we hold that the BIA's decision, as well as that of the Immigration Judge, is supported by substantial evidence. Narvaez-Delgado has moved to hold this appeal in abeyance or to withhold the mandate pending the outcome of his motion to reopen proceedings in front of the BIA. The motion is denied. PETITION FOR REVIEW DENIED. MOTION TO HOLD APPEAL IN ABEYANCE OR WITHHOLD THE MANDATE DENIED.Comments:
Submitted: 10 April, 1996; Filed: 24 May, 1994
The panel unanimously finds this case suitable for decision without oral argument.
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