# SANCHEZ AND ESCOBAR

> Board of Immigration Appeals · July 1, 1985 · 19 I. & N. Dec. 276

URL: https://www.frixlaw.com/law-library/cases/6075043

## Case

- **Court:** Board of Immigration Appeals
- **Decided:** July 1, 1985
- **Citations:** 19 I. & N. Dec. 276
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 28 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6075043

## Opinion text

Interim Decision #2996

MAITER OF SANCHEZ AND ESCOBAR

In Deportation Proceedings

A-24224793
A-24235796

Decided by Board October 15, 1985

(1) The United States Court of Appeals for the Ninth Circuit has concluded that the
"well-founded fear" standard for asylum and the "clear probability" standard for
withholding of deportation are meaningfully different and that the former is
"more generous" than the latter.
(2) In describing the amount, and type of evidence required to establish that a fear of
persecution is "well founded," the Ninth Circuit has held that an alien must point
to specific, objective facts that support an inference of past persecution or risk of
future persecution; that the necessary objective facts may be established through
the credible and persuasive LeeLimuny of the alien; and that only alter objective
evidence sufficient to suggest a risk of persecution has been introduced do the
alien's subjective fears become relevant.
(3) The term "persecution" as it appears in section 101(aX42XA) of the Immigration
and Nationality Act, 8 U.S.C. § 1101(aX42XA) (1982), requires that the alien dem-
onstrate a well-founded fear that he would be targeted for harm or suffering on
the basis of one of the enumerated grounds within the Act for which asylum may
be granted.
(4) Our conclusion that the harm resulting from country-wide civil strife and anar-
chy is not persecution is based not only on the pre-1980 construction of the word
"persecution" but also on the fact that Congress specifically rejected a definition
of "refugee" in section 101(aX42XA) of the Act that would have included "dis-
placed persons," i.e., individuals who flee wide-spread conditions of indiscriminate
violence resulting from civil war or military strife in a country.
(5) Throughout these proceedings the respondents have argued that they have a
well-founded fear of persecution if returned to El Salvador on the basis of their
"membership in a particular social group," comprised of young (18 to 30 years of
age), urban, working-class males of military age who have not served in the mili-
tary or otherwise affirmatively demonstrated their support for the Government of
El Salvador; however, the respondents have not established the existence of a
"particular social group" which is persecuted on account of the group's specific
identifying characteristics and whose treatment based on those characteristics is
distinct from the general population.
(G) While the rcopondcnts have shown statistically that many of those being killed
in El Salvador are young males, a purely statistical showing is not by itself suffi-
cient proof of the existence of a persecuted group; additionally, it is not enough to
simply identify the common characteristics of a statistical grouping of a portion of

276
Interim Decision # 2996

the population at risk, but in the context of the asylum and withholding provi-
sions related to "membership in a particular social group" under the Act there
must be a showing that the claimed persecution is on account of the group's iden-
tifying characteristics.
CHARGE:
Order: Act of 1952—Sec. 241(0(2) [8 U.S.C. § 1251(aX2)]—Entered without inspec-
tion (both respondents)
ON BEHALF OF RESPONDENTS; ON BEHALF OF SERVICE:
Marc Van Der Hout, Esquire Beverley M. Phillips
3689-18th Street General Attorney
San Francisco, California 94110
Carolyn P. Blum, Esquire
International Institute, Fast Bay
297 Lee Street
Oakland, California 94610

BY: Milhollan, Chairman; Maniatis, Dunne, Morris, and Vacca, Board Members

In a well-written decision dated September 7, 1982, resulting
from jointly held deportation proceedings, an immigration judge
found the respondents deportable es charged, denied their requests
for asylum and withholding of deportation under sections 208(a)
and 243(h) of the Immigration and Nationality Act, 8 U.S.C.
§§ 1158(a) and 1253(h) (1982), but granted them the privilege of vol-
untary departure, with an alternate order of deportation to El Sal-
vador. The respondents have appealed. The appeal will be dis-
missed.
Luis Alonzo Sanchez Trujillo is a 32-year-old native and citizen of
-

El Salvador who last entered the United States without inspection
at San Ysidro, California, on or about November 29, 1979. The co-
respondent, Luis Armando Escobar Sanieto, is a 24 year old native
- - -

and citizen of El Salvador who last entered this country without
inspection at San Ysidro, California, in June 1980. At their depor-
tation hearing, begun on April 12, 1982, and completed on June 18,
1982, the respondents, who were represented by counsel, admitted
the factual allegations contained in their respective Orders to Show
Cause and Notice of Hearing (Form 1-221) and conceded deportabil,
ity for entry without inspection under section 241(a)(2) of the Act, 8
§ 1251(a)(2) (1982). The respondents do not now challenge the
finding of deportability, and we are satisfied from a review of the
record that they received a fair hearing and that their deportabil-
ity has been established by evidence which is clear, unequivocal,
and convincing as required by Woodby v. INS, 385 U.S. 276 (1966).
The only issue to be decided by the present appeal is whether the
Interim Decision # 2996

respondents' requests for asylum and withholding of deportation
were properly denied.'
On appeal, the respondents argue that the immigration judge
failed to apply the proper legal standard in evaluating their re-
quests for asylum and withholding of deportation and that the
record establishes the existence of a legally cognizable "particular
social group," as well as the respondents' membership in that
group. They argue that they have a well -founded fear of persecu-
tion based on that membership. They further contend that the
record establishes a well-founded fear of persecution based on
actual and imputed political opinion, that respondent Escobar was
a victim of actual persecution prior to his departure from El Salva-
dor, and that respondent Sanchez has a well-founded fear of perse-
cution based on his religion and membership in his church's
"Christian community" or "youth group." Finally, it is submitted
that the 'immigration judge improperly excluded certain documen-
tary evidence, that the Government should be compelled to disclose
any evidence in its possession which is favorable to the respond-
ents' asylum claims, and that returning the respondents to El Sal-
vador constitutes cruel and unusual punishment in violation of the
eighth amendment.
The respondents bear the evidentiary burdens of proof and per-
suasion in any application for withholding of deportation under
section 243(h) or asylum under section 208 of the Act. Matter of
Acosta, 19 I&N Dec. 211 (BIA 1985); 8 C.F.R. §§ 208.5, 242.17(c)
(1985). The respondents must establish the facts underlying their
claims for such relief by a preponderance of credible, probative evi-
dence. They must also establish that the facts proven satisfy the
statutory standards of eligibility for these forms of relief. As this
case arises within the jurisdiction of the United States Court of Ap-
peals for the Ninth Circuit, the law of that circuit controls.
To be eligible for withholding of deportation pursuant to section
243(h) of the Act, an alien's facts must show a clear probability of
persecution in the country designated for deportation on account of
race, religion, nationality, membership in a particular social group,
or political opinion. INS v. Stevie, 467 U.S. 407 (1984); Bolanos-Her-
nandez v. INS, 767 F.2d 1277 (9th Cir. 1984). This means that the
alien's facts must establish that it is more likely than not he would
be subject to persecution for one of the grounds specified. INS v.
Stevie, supra, at 429-30.

Under the regulations of the Immigration and Naturalization Service, an appli-
cation for asylum made after the institution of deportation proceedings shall also be
considered as a request for withholding of deportation. 8 C.F.R. § 208.3(b) (1985).

278
Interim Decision #2996

To be eligible for asylum under section 208 of the Act, an alien
must meet the definition of a "refugee," which requires him to
show persecution or a well-founded fear of persecution in a particu-
lar country on account of race, religion, nationality, membership in.
a particular social group, or political opinion. Section 101(aX42XA)
of the Act, 8 U.S.C. § 1101(a)(42)(A) (1982); section 208 of the Act.
The Board's analysis of this standard is set forth in Matter of
Acosta, supra. The Ninth Circuit has concluded that the "well-
founded fear" standard and the "clear probability" standard are
meaningfully different and that the former is "more generous"
than the latter. Cardoza Fonseca v. INS, 767 F.2d 1448, 1451 (9th
-

Cir. 1985); Bolanos Hernandez v. INS, supra, at 1282. In describing
-

the amount and type of evidence required to establish that a fear
of persecution is "well founded," the Ninth Circuit has held:
Applicants must point to specific, objective facts that support an inference of past
persecution or risk of future persecution. That the objective facts are established
through the credible and persuasive testimony of the applicant does not make
those facto lace akijoetive "Mere assertions of possible fear" are still insufficient.
Shoaee v. INS, 'M. F.2d 1079, 1084 (9th Cir. 1983). It is only after objective evi-
dence sufficient to suggest a risk of persecution has been introduced that the
alien's subjective fears and desire to avoid the risk-laden situation in his or her
native land become. relevant
Cardoza-Fonseca v. INS, supra, at 1453.
In the case before us, the respondents have not shown a clear
probability of persecution under section 243(h) or a well-founded
fear of persecution under section 208(a) of the Act, as that standard
is described in Cardoza-Fonseca v. INS, supra, based on any of the
enumerated grounds within the Act for which asylum and with-
holding of deportation may be granted.
The record contains more than 1,860 pages of transcript, span-
ning 15 days of hearing, and includes the testimony of 13 witnesses.
During the course of these proceedings, the respondents have sub-
mitted more than 51 exhibits and addenda, containing approxi-
mately 1,200 pages, consisting of newspaper and magazine articles,
scholarly reports, news releases, sworn statements, letters and
other publications by people and international organizations in-
volved or interested in the Salvadoran conflict. This evidence docu-
ments the conditions in El Salvador and the violence perpetrated
against the population of that country through 1982. The evidence
has been adequately and fairly discussed by the immigration judge
in his decision and by the parties in their briefs on appeal.
During the hearing, respondent Escobar testified that between
1976 and 1980 he was employed as an auto mechanic for the Toyota
dealership in San Salvador. He was laid off in April 1980 when a
portion of the premises of that dealership was destroyed by bombs.

orb
Interim Decision #2996

He stated that in April 1980, while walking home from a movie at
approximately 11 o'clock in the evening, he was attacked by two
men in civilian clothes who placed him in an unmarked van with
government license plates, beat him, questioned him with regard to
guerrilla activities, robbed him, threatened him with death, and
threw him from the van approximately an hour and a half later.
He subsequently recognized one of his assailants who was riding in
a vehicle which belonged to the municipal police. The respondent
could ascribe no motive for the incident.
The respondent participated in two demonstrations while in El
Salvador. The first occurred in October 1979 and involved a protest
on behalf of mothers of disappeared children and relatives. The re-
spondent joined the group as it passed by his house and walked
with them for an hour carrying a peace flag. He left the demon-
stration before it reached the Plaza Libertad, where government
troops fired on the demonstrators, killing more than 70 people. He
stated that he participated in the demonstration because he was
against the atrocities the Government was committing. In March
1980 he participated in the funeral of Archbishop Romero. He
stated that thousands of people had gathered in an area between
the national cathedral and the presidential palace, that he was on
the outskirts of the demonstration, and that he observed smoke
bombs dropping from the presidential palace, heard gunshots, and
saw some of the demonstrators killed. The record contains no evi-
dence that respondent Escobar was ever stopped or questioned as a
result of his participation in either of these demonstrations, or that
he was otherwise identified by government forces as a participant.
The respondent testified that three of his young male friends had
been killed in Santa Cruz Michapa by the national guard when
they attempted to run away. In May 1980 the respondent observed
the bodies of five young men, ranging from 15 to 32 years old, who
had been killed near Santa Cruz Michapa. Their bodies had been
disfigured and dismembered. In February 1980, a 26-year-old male
friend of the respondent was killed in San Salvador. It was believed
that he had been killed by the national guard. The respondent
stated that he had also seen the bodies of six young males on the
road to the airport and that they had all been shot through the
head. The respondent had no knowledge of the actual circum-
stances surrounding any of these deaths. The respondent admitted
that he had never publicly spoken out against the Government be-
cause of the danger and that such conversations were limited to his
friends. Similarly, the respondent never belonged to any labor
union because of the danger membership in such associations rep-
resented. He stated that he had not served in the army because he
280
Interim Decision #2996

had objected to the way that the military recruited young men and
that he had avoided being recruited by staying in his house when
the army was in the area.
In May 1980 the respondent applied for and received a valid
passport from government authorities with a tourist visa for
Mexico. He had no difficulties in obtaining the passport and de-
parted the country 3 days later. He stated that the bus he was
traveling on was stopped twice by government forces before cross-
ing the border. On both occasions his passport was inspected and
he was permitted to proceed without incident. Subsequent to his ar-
rival in the United States, the respondent was informed that sever-
al of his co-workers from the Toyota dealership were killed when
the car they were in was machine gunned. The respondent stated
that they had been traveling late at night to one of the beach areas
and may have been killed as a result of curfew violations.
Respondent Sanchez testified that he was employed in El Salva-
dor as an electrician until his departure from the country on No-
vember 22, 1979. The respondent was accompanied by his father at
the time of his departure. They applied for and received valid pass-
ports with tourist visas for Mexico from government authorities
and were permitted to depart the country without incident.
The respondent admitted that he was not politically active while
in El Salvador and that he never publicly spoke out against the
Government or expressed the views and opinions held by Archbish-
op Romero and his parish priest, Father Villaran. Four of the re-
spondent's brothers, whose ages range between 22 and 83, continue
to live and work in El Salvador. There is no evidence that any of
the respondent's brothers have ever been arrested, imprisoned, or
otherwise persecuted. His last contact with his family in El Snlva-
dor was in November 1981. At that time there was no indication
that they were experiencing any problems except for increased in-
flation resulting in higher food costs.
The respondent testified that between October and November
1979 he was stopped and interrogated on four occasions by mem-
bers of the national guard. On each of these occasions the respond-
ent was waiting with others at a bus stop when the national guard
required them to submit to a search for weapons and documents.
The respondent stated that the national guard brandished their
weapons, used abusive language, and threatened to kill anyone
who did not cooperate. The respondent admitted that on none of
these occasions was anyone harmed or arrested. Except for these
four incidents, the record contains no evidence that the respondent
had any other contact with government or guerrilla forces which
resulted in harm or threats of harm.
281
Interim Decision #2996

The respondent's only organizational involvement while in El
Salvador was as a member of his church's "Catholic committee" or
"Catholic community," a youth group of 20 people, mostly in their
late teens, who assisted the parish priest in planning certain reli-
gious celebrations and performing other internal functions of the
church. The respondent participated in this group beginning in
1977 and continued until approximately September 1979. He stated
that the "Catholic committee" was not politically involved and had
no political significance. Nor does the record contain any evidence
which suggests that the members of this "Catholic committee"
were ever arrested, imprisoned, or otherwise persecuted as a result
of their participation in the group. Respondent Sanchez related two
incidents involving demonstrations which took place in the vicinity
of his church and were violently dispersed by the national guard,
resulting in the deaths of many of the demonstrators. He admitted
that these demonstrations were not sponsored by his church, that
his priest took no active role in them, and that the church's
"Catholic committee" did not participate in the demonstrations.
Subsequent to his arrival in the United States, the respondent
joined an organization known as Frente Unido Salvadoreno (FUS),
a solidarity group concerned with the conditions of the people of El
Salvador. The respondent also attended a demonstration in front of
the El Salvadoran Consulate following the death of Archbishop
Romero. The respondent terminated his active participation in
FUS in August 1981 as a result of employment conflicts. Although
the respondent strongly suspected that his participation in PUS ac-
tivities in this country was known by the Government of El Salva-
dor, he admitted that he had not actually heard, seen, or experi-
enced anything which established a basis to conclude that he was
known by name, had been identified by name, or would be singled
out for mistreatment by the Government of El Salvador.
Much of the testimony and documentary evidence submitted by
the respondents concerned the general conditions of violence in El
Salvador. The evidence reflects that as of 1982, the threat of injury
or death in El Salvador was country-wide, affecting the entire civil-
ian population and reaching both males and females of every age
group. The record suggests, contrary to the respondents' claims,
that an individual's sex and age were not significant factors with
regard to the risk of harm. Rather, the risk of harm appears to
have been in large part a function of the coincidental violence of
country-wide civil strife, resulting from misidentification, curfew
violations, or simply being in the wrong place at the wrong time.
Considerable evidence was offered relating to claims that persecu-
tion occurred because of participation in specific groups that active-
282
Interim Decision #2996

ly and publicly opposed the Government's policies, including cam-
pesino 2 or agrarian reform groups, union leaders and active mem-
bers of labor movements, religious leaders and activists, educators
and active members of teachers unions, medical and health care
professionals, journalists, and human rights activists and workers.
The respondents have not claimed, nor does the evidence establish,
their membership in any of the identified groups. The evidence, as
a whole, demands the conclusion that as of 1982 the militarily con-
trolled Government of El Salvador was in crisis, that there existed
country-wide civil strife and anarchy, that the Government, in re-
sponse to the crisis, was intolerant of public opposition to its poli-
cies, and that the violence taking place in El Salvador at the hands
of the government forces and guerrillas reached all segments of
that country's civilian population. 3
To be eligible for a grant of asylum, an alien must demonstrate
that he is a "refugee" within the meaning of section 101(aX42)(A) of
the Act. 4 The definition of "refugee" contained in that section has
four elements that must be sa Lisfied: (1) The alien must show a
"fear" of "persecution"; (2) that fear must be "well founded"; (3)
the "persecution" must be "on account of race, religion, national-
ity, membership in a particular social group, or political opinion";
and (4) the alien must show he is unable or unwilling to return to
his country of nationality or to the country in which he last habit-
ually resided because of persecution or a well-founded fear of perse-
cution.

2 The term "campesino" as used here refers to peasant farmers and their families
located in the rural areas of El Salvador.
3 Because these proceedings are adversarial in nature, our findings with regard to
the conditions in El Salvador must be based solely on the record before us. These
findings are limited to the present record and do not purport to constitute anything
other than our assessment of the evidence presented.
Congress added a definition of refugee to our law by means of the Refugee Act of
1980, Pub. L. No. 96-212, 91 Stat. 102. In so doing, Congress intended to conform the
Immigration and Nationality Act to the United Nations Protocol Relating to the
Status of Refugees, Januoxy 31, 1967 [19681 19 U.S.T. 6222, T.I.A.S. No. 6517, 606
U.N.T.S. 268 ("Protocol"), to which the United States had acceded in 1968. RR. Rep.
No. 781, 96th Cong., 2d Sess. 19, reprinted in 1980 U.S. Code Cong. & Ad. News 160,
160; S. Rep. No. 256, 96th Cong., 1st Sess. 4, 14-15, reprinted in 1980 U.S. Code Cong.
& Ad. News 141, 144, 154-55; H.R. Rep. No. 608, 96th Cong., 1st Sess. 9-10 a979) ; see
also INS v. Steak, supra, at 422. Section 101(aX42XA) defines a refugee as
any person who is outside any country of such person's nationality or, in the case
of a person having no nationality, is outside any country in which such person
last habitually resided, and who is unable or unwilling to return to, and is unable
or unwilling to avail himself or herself of the protection of, 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.

283
Interim Decision #2996

Prior to inclusion of the definition of a refugee in section
101(aX42)(A) of the Act, the term "persecution" was construed to
mean either a threat to the life or freedom of, or the infliction of
suffering or harm upon, those who differ in a way regarded as of-
fensive. Cardoza-Fonseea v. INS, supra, at 1452; Bolanos -Hernandez
v. INS, supra, at 1283 n.13; Matter of Acosta, supra, at 222. One of
the significant aspects of this construction of "persecution" was the
concept that the harm or suffering had to occur as the result of a
belief or characteristic an oppressor sought to overcome or punish
in an individual. Matter of Acosta, supra. This concept required an
individual to show he would be singled out or treated differently
from others in his country because he possessed a characteristic a
persecutor sought to punish. See, e.g., Matter of Surzycki, 13 I&N
Dec. 261, 262 BIA 1969). It also meant that generally harsh condi-
tions shared by many others in a country and the harm arising out
of civil strife did not amount to "persecution" within the meaning
of our law. Matter of Acosta, supra; see also Cheng Kai Fu v. INS,
386 F.2d 750, 759 (2d. Cir. 1967), cert_ cierdec4, 390 U S. 1003 (1963)
We have recently concluded that, in using the term "persecu-
tion" in the definition of a refugee, Congress intended to adopt the
previously accepted construction of that term. Matter of Acosta,
supra. Thus, it follows that "persecution" as it appears in section
101(a)(42)(A) of the Act requires that the alien demonstrate a well-
founded fear that he would be targeted for harm or suffering on
the basis of one of the enumerated grounds within the Act for
which asylum may be granted. Id.; cf. INS v. Stevic, supra; Rejaie
v. INS, 691 F.2d 139 (3d Cir. 1982); Moghanian v. United States .De-
partment of Justice, 577 F.2d 141 (9th Cir. 1978); Matter of Dunar,
14 I&N Dec. 310 (BIA 1973). Furthermore, the tragic and wide-
spread savage violence affecting all Salvadorans as the result of
civil strife and anarchy is not persecution. 7,epeda- M-Plandez v_ TNS,
741 F.2d 285, 289-90 (9th Cir. 1984); Chavez v. INS, 723 F.2d 1431,
1434 (9th Cir. 1984); Sanchez v. INS, 707 F.2d 1523, 1526-28 (D.C.
Cir. 1983); Martinez-Romero v. INS, 692 F.2d 595, 595-96 (9th Cir.
1982), aff'g Matter of Martinez-Romero, 18 I&N Dec. 75 (BIA. 1981);
Matter of Acosta, supra.
Our conclusion in this regard is based not only on the pre-1980
construction of the word "persecution," but also on the fact that
Congress specifically rejected a definition of "refugee" in section
101(a)(42)(A) of the Act that would have included "displaced per-
sons," i.e., individuals who flee widespread conditions of indiscrimi-
nate violence resulting from civil war or military strife in a coun-
try. Matter of Acosta, supra. Indeed, we note that, in discussing the
284
Interim Decision #2996

limitations inherent in the definition of a "refugee" under the Act,
Senator Alan K. Simpson stated in 1981:
The statute says "persecution on account of race, religion, nationality, member-
ship in a particular social group or political opinion." That is all it says. So a
country can be exceedingly dangerous and perilous for human beings and in no
case would that qualify the people leaving that country as refugees under U.S.
law. I think that it is very critical to keep this in mind, and each time I hear the
phrase "persecution" I am going to refer back to the statute, and hope others will,
and read exactly what it says. So it is going to be an interesting few months.
... jTjt really does not say that you can include a person in the definition of
refugee who is just scared to death of his country or the turmoil in his country.
Special Project, Displaced Persons: "The New Refugees," 13 Ga. J.
Intl and Comp. Law 755, 757 n.8 (183) (citations omitted). 5
Throughout these proceedings the respondents have argued that
they have a well-founded fear of persecution if returned to El Sal-
vador on the basis of their "membership in a particular social
group," comprised of young (18 to 30 years of age), urban, working-
class males of military age who have not served in the military or
otherwise affirmatively demonstrated their support for the Govern-
ment of El Salvador. They claim that the group to which they
belong is a legally distinct and cognizable social group, citing a
series of jury composition cases eta applicable precedent on the
question of group cognizability. See Hernandez v. Texas, 347 U.S.
475 (1954); Ciudadanos Unidos de San Juan v. Hidalgo County
Grand Jury Comm'rs, 622 F.2d 807 (5th Cir. 1980), cert. denied, 450
U.S. 964 (1981).
The respondents have shown statistically that many of those
being killed in El Salvador are young males. This is not surprising
in view of the ongoing country-wide civil strife which presently
exists in El Salvador. Historically, it has been the young who have
primarily been involved in both the internal and external armed
conflicts of a country. Although it may be an element of the proof,
a purely statistical showing is not by itself sufficient proof of the
existence of a persecuted group. It is not enough to simply identify
the common characteristics of a statistical grouping of a portion of
the population at risk. In the context of the asylum and withhold-
ing provisions related to "membership in a particular social group"
under the Act, there must be a showing that the claimed persecu-

s See Office of the United Nations High Commissioner for Refugees, Handbook of
Procedures and Criteria for Determining Refugee Status Under the 1951 Convention
and the 1967 Protocol Relating to the Status of Refugees 39 (Geneva, 1979), stating
that "hgersons compelled to leave their country of origin as a result of international
or national armed conflicts are not normally considered refugees under the 1951
Convention or 1957 Protocol."

285
Interim Decision #2996

tion is on account of the group's identifying characteristics. 6 This
the respondents have not shown.
The record does not establish that individuals in El Salvador are
singled out for persecution on the basis of their age. Nor has it
been established that individuals are targeted for persecution on
the basis of urban residence. Similarly, there has been no showing
that the risk of persecution is based solely on. the masculine
gender. Nor has it been shown that economic status or means of
livelihood is a basis for persecution in El Salvador. On the con-
trary, the record indicates that both the government forces and
guerrillas are actively seeking support from all segments of the
population. It is not the above characteristics, singularly or in the
aggregate, which form the basis of a realistic likelihood of persecu-
tion. Rather, the only factor shown to be a basis for persecution in
El Salvador within the meaning of the Act is the nonsupport or op-
position to the respective political positions of the Government and
the guerrilla forces. Absent this core factor or characteristic, which
is essentially a political opinion-based ground of persecution, the
risk of harm on the basis of the other characteristics claimed by
the respondents has not been shown. Where this factor does exist,
the resulting risk of persecution is not limited to young urban
males but equally affects all segments of the rural and urban popu-
lations of El Salvador.
We are satisfied from a review of the record that the respondents
have not established the existence of a "particular social group"
which is persecuted on account of the group's specific identifying
characteristics and whose treatment based on those characteristics
is distinct from the general population. The only characteristic
shown to be a basis for persecution is the individual's actual or per-
ceived political opinions. While we recognize that a "particular
social group" may embody or overlap one or more of the other enu-
merated grounds for which asylum and withholding of deportation
may be granted, the existence of a "particular social group" is not
established solely on the basis of such ground.
Nor have the respondents established that their claims of perse-
cution on the basis of political opinion or religion are well founded
within the meaning of the Act. The respondents have presented no
"specific, objective facts that support an inference of past persecu-

6 We note that even the jury composition decisions, relied on by the respondents
to show legal cognizability of a social group, required a showing that the actual
treatment of the claimed group was on account of national origin and age, respec-
tively, and that such treatment was distinct or different from that of the general
community. See Hernandez v. Texas, supra, at 478-79; Ciudadanos Unidos de San.
Juan v. Hidalgo County Grand Jury Comm'rs, supra, at 816-18.

286
Interim Decision #2996

tion or risk of future persecution." Cardoza-Fonseca v. INS, supra,
at 1453.
In the present case, there is no evidence of any personal experi-
ences or other objective events that demonstrate that the respond-
ents hold political opinions or religious beliefs the Government
seeks to punish. Nor have the respondents shown that the Govern-
ment is aware, or could easily become aware, that they hold such
opinions and beliefs. Neither respondent was politically active in El
Salvador, or called public attention to himself by expressing opposi-
tion to the Government, or affiliated himself with trade unions or
other politically active opposition groups. Neither of the demon-
strations that respondent Escobar participated in was shown to
have brought him into official contact with the Government or to
have resulted in his detention or persecution. There are no facts
that show he was identified by the Government as having been a
participant in these demonstrations. Although respondent Sanchez
was a member of his church's youth group from 1977 until 1979,
there arc no facts showing the group was politically active or that
any members of the group were ever punished by the Government,
whether on the basis of their religious beliefs or political opinions.
While the priest who directed the group was detained and appar-
ently tortured, the evidence shows that this incident resulted from
an unrelated demonstration taking place near the church, and not
from a specifically directed attack on the church or priest because
of the youth group's activities or existence. Neither respondent
ever received specific threats as a result of his political and reli-
gious beliefs. Nor is there any evidence that respondent Sanchez's
activities in this country between November 1979 and August 1981,
while a member of FITS, are known by the Government of El Sal-
vador.
Moreover, the respondents' experiences do not show that the
Government of El Salvador has the inclination or willingness to
single them out for persecution. Neither of the respondents was
ever arrested, imprisoned, or otherwise persecuted in El Salvador
because of his political opinions. There is no indication that the in-
cident in which respondent Escobar was beaten and robbed, while
walking home after curfew, was other than a random criminal act.
The record does not suggest that his assailants knew who he was or
had targeted and singled him out for political reasons. The death
threat he received appears to be related to the accomplishment of
the robbery and not the result of political motivations. He re-
mained in El Salvador for a month following the incident without
further threats or harm. Nor do the four occasions in which re-
spondent Sanchez was subjected to document checks and weapon
287
Interim Decision #2996

searches constitute "persecution." These incidents were coinciden-
tal to the prevalent conditions of violence in El Salvador and the
happenstance of time and location. Moreover, both of the respond-
ents were given valid passports and permitted to depart the coun-
try without incident. Respondent Sanchez's four brothers continue
to live and work in El Salvador, and there is no evidence that they
have ever been arrested, imprisoned, or otherwise harmed. We con-
clude that the respondents have not shown eligibility for asylum
under any of the enumerated grounds for which that relief may be
granted. The respondents have not shown any special, individual-
ized circumstances indicating that they have been or will be sin-
gled out for persecution beyond the general threat of harm affect-
ing the entire population. See Chavez v. INS, supra. We find that
the respondents are more akin to "displaced persons," having fled
the widespread violence which exists in El Salvador, than "refu-
gees" within the meaning of the Act. The respondents' risk of harm
is no greater than that experienced by all other Salvadorans.?
For the reasons contained in the above discussion, we also con-
clude that the respondents have not established eligibility for with-
holding of deportation. As we have previously indicated, an appli-
cation for withholding of deportation under section 243(h) of the
Act must be "supported by evidence establishing that it is more
likely than not that the alien would be subject to persecution for
one of the grounds specified." INS v. Stevie, supra, at 429-30. The
Ninth Circuit has concluded that the well-founded fear standard
under section 208(a) of the Act is "more liberal" or "more gener-
ous" than the clear probability standard under section 243(h) of the
Act. See Cardoza-Fonseca v. INS, supra; Bolanos-Hernandez v. INS,
supra. Since we have already concluded that the respondents' facts
do not demonstrate a well-founded fear of persecution at the hands
of the Government for purposes of asylum on account of "member-
ship in a particular social group," "political opinion," or "religion"
within the meaning of the Act, it follows that the respondents' evi-
dence does not show a clear probability of persecution required for
withholding of deportation.
Finally, the respondents' arguments that the immigration judge
improperly excluded certain documentary evidence, that the Gov-
ernment should be compelled to disclose any evidence in its posses-

7 Our conclusion that the respondents' risk of harm is no greater than that suf-
fered by the general population, in view of the country-wide conditions of violence
and anarchy, does not preclude an alien from El Salvador from showing that he has
been singled out for persecution and thus qualifies as a "refugee" within the mean-
ing of the Act. We conclude only that the respondents here have not made such a
showing.

288
Interim Decision #2996

sion favorable to their asylum claims, and that returning them to
El Salvador constitutes cruel and unusual punishment in violation
of the eighth amendment are without merit. The record clearly
shows that the immigration judge permitted the respondents every
opportunity to fully present their asylum claims. If he erred, he did.
so in their favor. There has been no showing of prejudice concern-
ing the excluded documents. See Nicholas v. INS, 590 F.2d 802, 809
(9th Cir. 1979). The respondents have not identified any evidence
which they believe is favorable to their claims and in the posses-
sion of the Government. Nor have they shown that the Govern-
ment intentionally withheld such evidence. The argument that no
one should be returned to El Salvador because of the present condi-
tions of anarchy and country-wide violence has been rejected. Mar-
tinez-Rontero v. INS, supra. Moreover, deportation is a civil conse-
quence and has never been regarded as punishment for a crime.
Consequently, it does not violate the eighth amendment's prohibi-
tion of cruel and unusual punishment. See, e.g., Fong Yue Ting v.
United States, 149 U.S. 698, 730 (1893); Burr v. INS, 350 F.2d 87, 90-
91 (9th Cir. 1965), cert. denied, 383 U.S. 915 (1966).
In view of the conditions which presently exist in El Salvador,
we share the respondents' concern for their welfare. However, the
respondents have not established their eligibility for the requested
relief, and we must, accordingly, dismiss the appeal.
ORDER: The appeal is dismissed.
FURTHER ORDER: Pursuant to the immigration judge's
order and in accordance with our decision in Matter of Chouliaris,
16 I&N Dec. 168 (BIA 1977), the respondents are permitted to
depart from the United States voluntarily within 30 days from the
date of this order or any extension beyond that time as may be
granted by the district director; in the event of failure so to depart,
the respondents shall be deported as provided in the immigration
judge's order.

289

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6075043. Public record. Not legal advice.