holding that alien failed to show persecution based on religious beliefs when his father was kidnapped and held for two days, his brother was shot in the leg, another brother was kidnapped and tortured, and the alien was detained and assaulted twice
How later courts described this case
- holding that alien failed to show persecution based on religious beliefs when his father was kidnapped and held for two days, his brother was shot in the leg, another brother was kidnapped and tortured, and the alien was detained and assaulted twice
- finding that in order to establish well-founded fear of persecution, applicant for asylum must show that a reasonable person in the same circumstances would fear persecution based on the grounds enumerated in 8 U.S.C. § 1101(a)(42) if deported
- concluding that credibility is not an issue on appeal where the BIA stated that the IJ correctly addressed all issues other than credibility, and reviewing the IJ’s decision only to the extent that it denied the petitioner’s claim for asylum
- finding that bombing of family home, kidnapping of shooting of relatives, and detention of alien did not provide compelling evidence of past persecution in the context of ongoing civil war
Written by the judges who cited it.
The opinion
EMILIO M. GARZA, Circuit Judge,
dissenting:
I agree with the majority that, to qualify as a refugee under the “well-founded fear of persecution” prong of INA § 101(a)(42)(A), 8 U.S.C. § 1101 (a)(42)(A), an alien need not demonstrate a clear probability that he would be subject to persecution if deported; instead, the alien need only show a genuine subjective fear of future persecution and that a reasonable person in the same circumstances would fear persecution if deported. Moreover, I agree that, had the IJ applied the stricter standard of proof, its decision should be reversed and remanded for application of the proper standard to the facts.
However, I respectfully disagree that the IJ applied the stricter standard in this case. The IJ explicitly and correctly stated the proper legal standard of proof:
An alien has a well-founded fear if a reasonable person in the same circumstances would fear persecution.... Even if the chance of persecution is less than clearly probable, a reasonable person may still fear persecution.... However, an alien must prove that his fear of persecution is both subjectively genuine and objectively reasonable.
Nothing in the IJ’s decision indicates that he did not follow this express articulation of the applicable legal standard. More specifically, the stray remarks cited by the majority, when placed in context, do not demonstrate that the IJ applied the stricter “clear probability” standard.
The majority cites the IJ’s statement that “Lebanon’s recent history of violence does not change Respondent’s burden of proof. He must still prove that he would be subject to persecution if deported.” When taken in context, it is clear that the IJ meant only that Mikhael may not rely on past history of violence in Lebanon to satisfy his burden to show a well founded fear of future persecution, especially in light of the changed circumstances in that country. The IJ was correct in this pronouncement. In fact, the majority affirms the IJ’s finding that because Mikhael failed to demonstrate past history of persecution, he may not benefit from a presumption of future persecution.
The majority further cites the IJ’s statement that:
Respondent must show that he will be persecuted on one of the five enumerated grounds. His unsubstantiated allegations ... [do] not amount to a well-founded fear of persecution.
Again, when one places this statement in context, it becomes clear that the IJ did not apply a different standard of proof than that explicitly articulated. The statement follows the IJ’s pronouncement that “civil unrest is not a proper ground for proving persecution.” Clearly, the IJ meant only to state that, in order to show a well founded fear of persecution, such persecution must be “on account of race, religion, nationality, membership in a particular social group, or political opinion,” not due to general civil strife. INA § 101(a)(42)(A), 8 U.S.C. § 1101 (a)(42)(A). This is a correct statement of the law. See Bevc v. INS, 47 F.3d 907, 910 (7th Cir.1995); Limsico v. INS, 951 F.2d 210, 212 (9th Cir.1991).
Where the IJ has explicitly set forth the proper standard of proof, we should presume that the IJ did, in fact, follow that standard unless there is convincing evidence to the contrary, evidence I find lacking here. The IJ’s finding that Mikhael’s fear of persecution stems from generally harsh conditions and civil strife in Lebanon, not targeted persecution .on the basis of his political or religious beliefs, is supported by the evidence. Therefore, I discern no grounds for reversal. I respectfully dissent.