Opposition Brief — Misola v. Immigration & Naturalization Service

Supreme Court, U

o os eH

APR 7 1999

No. 98-1090

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Jn the Supreme Court of the United States

OCTOBER TERM, 1998

FRANCISCO CHAVEZ MISOLA, PETITIONER

Vv.

IMMIGRATION AND NATURALIZATION SERVICE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

SETH P. WAXMAN

Solicitor General

Counsel of Record

DAVID W. OGDEN

Acting Assistant Attorney

General

DONALD E. KEENER

DAVID M. MCCONNELL

LINDA S. WENDTLAND

LAURA A. SMITH

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

QUESTION PRESENTED

Whether substantial evidence supports the Board of

Immigration Appeals’ determination that petitioner

failed to meet his burden of proving eligibility for

asylum and withholding of deportation.

(I)

TABLE OF CONTENTS

Opinions below

Jurisdiction

Statement

Argument

Conclusion

TABLE OF AUTHORITIES

Cases:

A-E-M-, In re, Interim Dec. No. 3338, 1998

WL 99555 (BIA Feb. 20, 1998)

Bartesaghi-Lay v. INS, 9 F.3d 819 (10th Cir.

1993)

Bertrand v. Sava, 684 F.2d 204 (2d Cir. 1982) ..0.0.0.....-

Borja v. INS, 139 F.3d 1251 (1993), withdrawn

pending reh’g en banc, 150 F.3d 1223 (9th Cir.

1998) -

C-A-L-, In re, Interim Dec. No. 3305, 1997 WL 80985

(BIA Feb. 21, 1997)

Chang v. INS, 119 F.3d 1055 (3d Cir. 1997)

Cuevas v. INS, 43 F.3d 1167 (7th Cir. 1995)...

Garrovillas v. INS, 156 F.3d 1010 (9th Cir.

1998) ........

Gonzales-Neyra v. INS, 122 F.3d 1293 (9th Cir.

1997)

Graver Tank & Mfg. Co. v. Linde Air Prods. Co.,

336 U.S. 271 (1949), aff’d on reh’g, 339 U.S. 605

RARE ER Re Oe 8 O02 ES St Cae

Hohn v. United States, 118 S. Ct. 1969 (1998) 0.000000...

INS v. Cardoza-Fonseca, 480 U.S. 421 (1987) 0.0...

INS v. Elias-Zacarias, 502 U.S. 478 (1992)...

INS v. Stevic, 467 U.S. 407 (1984) ........ccccssscssssssossoscssseseceees

LaBorde v. INS, 119 S. Ct. 866 (Jan. 19, 1999) ...000000........

Mobil Oil Corp. v. Federal Power Comm’n, 417 U.S.

283 (1974) . ie

Osorio v. INS, 18 F.3d 1017 (2d Cir. 1994) ..0.....cccccseseseee

(ILI)

on hm tS

10

12

IV

Cases—Continued:

Payne v. Tennessee, 501 U.S. 808 (1991)

Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155

(1993)

Sangha v. INS, 103 F.3d 1482 (9th Cir. 1997) .............

United States v. Aguilar, 883 F.2d 662 (9th Cir.

1989), cert. denied, 498 U.S. 1046 (1991)

United States v. Johnston, 268 U.S. 220 (1925) ceecsoeeeocs.

Universal Camera Corp. v. NLRB, 340 U.S. 474

(1951)

Vera-Valera v. INS, 147 F.3d 1036 (9th Cir.

1998)

Treaty, statutes and regulations:

United Nations Protocol Relating to the Status of

Refugees, Jan. 31, 1967, 19 U.S.T. 6224

Antiterrorism and Effective Death Penalty Act of

1996, Pub. L. No. 104-132, Tit. IV-C, 110 Stat. 1270:

§ 421(a), 110 Stat. 1270

§ 421(b), 110 Stat. 1270

Illegal Immigration Reform and Immigrant Respon-

sibility Act of 1996, Pub. L. No. 104-208, Div. C, 110

Stat. 3009-546:

Tit. III-A, 110 Stat. 3009-575:

§ 305, 110 Stat. 3009-602

§ 309(a), 110 Stat. 3009-625

§ 309(c), 110 Stat. 3009-625

Tit. VI-A, 110 Stat. 3009-689:

§ 604, 110 Stat. 3009-690

§ 604(c), 110 Stat. 3009-694

Immigration and Nationality Act, 8 U.S.C. 1101

et seq.

8 U.S.C. 1101(a)(42)(A) (1994)

8 U.S.C. 1158(a) (1994)

8 U.S.C. 1231(b)(3) (Supp. II 1996)

13

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wOnm & w&

V

Statutes and regulations—Continued: Page

8 U.S.C. 1251(a)(1)(C)(i) (1994) 5

8 U.S.C. 1253 (1994) ‘a 3

8 U.S.C. 1253(h)(1) (1994) 3

Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat.

102 2

8 C.F.R. (1996):

Section 208.13(a) ............ gZ

Section 208.16(b) 3

Miscellaneous:

63 Fed. Reg. 31,947 (1998) 12-13

United Nations High Commissioner for Refugees,

Handbook on Procedures and Criteria for

Determining Refugee Status Under the 1951

Convention and the 1967 Protocol Relating to the

Status of Refugees (rev. ed. Jan. 1992) 13, 14

Ao een Rare - et

Jn the Supreme Court of the United States

OCTOBER TERM, 1998

No. 98-1090

FRANCISCO CHAVEZ MISOLA, PETITIONER

v.

IMMIGRATION AND NATURALIZATION SERVICE

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BRIEF FOR THE RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-6) is

unpublished, but the decision is noted at 162 F.3d 1155

(Table). The opinions of the Board of Immigration Ap-

peals (Pet. App. 8-10) and the immigration judge (A.R.

61-71)' are unreported.

' Petitioner did not reproduce the immigration judge’s decision

in the petition appendix. It may be found, however, on the indi-

cated pages of the Certified Administrative Record, which was

filed with court of appeals and is part of the court of appeals’

record in this case. In this brief, “A.R.” refers to that record. In

addition, we have lodged a copy of the immigration judge’s decision

with the Clerk of this Court.

(1)

2

JURISDICTION

The court of appeals entered its judgment on Sep-

tember 2, 1998. On December 1, 1998, Chief Justice

Rehnquist extended the time for filing a petition for a

writ of certiorari to and including J anuary 4, 1999, and

the petition was filed on that date. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

1. The Immigration and Nationality Act of 1952,

8 U.S.C. 1101 et seq., as amended by the Refugee Act of

1980, Pub. L. No. 96-212, 94 Stat. 102, provides that an

alien will be considered a “refugee” if he “is unable or

unwilling to return to” his home “because of persecu-

tion or a well-founded fear of persecution on account of

race, religion, nationality, membership in a particu-

lar social group, or political opinion.” 8 U.S.C.

1101(a)(42)(A) (1994).° If the “Attorney General deter-

mines” that an alien qualifies as a refugee, the Attorney

General may grant that person asylum in the United

States, 8 U.S.C. 1158(a). The decision to grant or deny

asylum, however, falls within “the discretion of the

Attorney General.” 8 U.S.C. 1158(a). An alien seeking :

asylum need only demonstrate a reasonable fear or risk

of persecution. See INS v. Cardoza-Fonseca, 480 US.

421, 430-441 (1987). The alien bears the burden of prov-

ing that he is a refugee because he has the requisite

well-founded fear of persecution. 8 C.F.R. 208.13(a)

(1996).°

2 In this brief, unless otherwise indicated, all references to Title

8 refer to the 1994 main edition, which was in effect at the time this

case arose.

® Section 604 of the Illegal Immigration Reform and Immigrant

Responsibility Act of 1996 (IIRIRA), Pub. L. No. 104-208, Div. C,

Tit. VI-A, 110 Stat. 3009-690, significantly revised the Immigration

ee

3

In addition, “if the Attorney General determines”

that the alien’s “life or freedom would be threatened” in

the country of deportation “on account of race, religion,

nationality, membership in a particular social group, or

political opinion,” the alien may be eligible for “with-

holding of deportation or return.” 8 U.S.C. 1253(h)(1).

To be entitled to relief under that provision, the alien

must demonstrate a “clear probability of persecution.”

INS v. Stevic, 467 U.S. 407, 430 (1984); 8 C.F.R.

208.16(b) (1996) (applicant bears the burden of proof of

eligibility for withholding). If the alien makes such a

showing, withholding of deportation is mandatory.

8 U.S.C. 1253(h)(1).'

2. Petitioner is a native and citizen of the Philippi-

nes. Pet. App. 2; A.R. 61. While in the Philippines, pe-

titioner was a landowner, businessman, and farmer who

earned approximately $110,000 per year, and who em-

and Nationality Act’s asylum provision. Those amendments, how-

ever, do not govern the present case because they apply to applica-

tions for asylum filed on or after April 1, 1997. IIRIRA, Tit. VI-A,

§ 604(c), 110 Stat. 3009-694; see also Pet. App. 1-2. The changes in

asylum worked by the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA), Pub. L. No. 104-132, Tit. IV-C, § 421(a), 110

Stat. 1270, do apply to this case because the AEDPA amendments

govern asylum determinations made on or after the amendments’

effective date of April 24, 1996. AEDPA, Tit. IV-C, § 421(b), 110

Stat. 1270. For purposes of petitioner’s claim, however, the

AEDPA amendments to the asylum provision did not alter the

pre-AEDPA provision in any material way.

* IIRIRA substantially revised and rewrote 8 U.S.C. 1253. See

ITRIRA, Div. C, Tit. II-A, § 305, 110 Stat. 3009-602. The with-

holding provisions are now codified at 8 U.S.C. 1231(b)(3) (Supp. II

1996). That amendment does not govern the present case because

its provisions apply only to withholding applications of aliens who

are placed in proceedings on or after April 1, 1997. IIRIRA, Tit.

III-A, § 309(a) and (ce), 110 Stat. 3009-625.

4

ployed permanent and temporary farmworkers. A.R.

87-88. Petitioner was not active in Philippine politics;

he testified that he supported neither the rebel move-

ments nor the government. A.R. 89. According to peti-

tioner’s testimony, in the late 1980s, the military arm of

the Philippine Communist party, the New People’s

Army, became an active presence in his region of the

country and extorted “war taxes” to finance the group’s

anti-government operations from “the citizens * * *

especially the businessmen, landowners, the rich peo-

ple, and even the peasants themselves.” Pet. App. 3-4;

A.R. 90-92. People who did not pay their war taxes

allegedly were threatened or killed. Pet. App. 3. Peti-

tioner further testified that the New People’s Army

executed his cousin for failing to pay war taxes. Pet.

App. 3 & n.3.

Petitioner testified that, in June 1989, the New Peo-

ple’s Army demanded money from him. Pet. App. 3;

A.R. 96-97. He claimed that the son of one of his part-

time workers gave him a letter that bore a black ribbon

and demanded 50,000 pesos; the black ribbon allegedly

denoted a death threat. A.R. 96. Petitioner did not pay

because he did not want to help the New People’s

Army. A.R. 97-98. Petitioner did not indicate, how-

ever, that the New People’s Army was aware of his

desire not to be affiliated with it. A.R. 97-98; Pet. App.

3. After deciding not to pay the war taxes, petitioner

abandoned his farm and fled with the assistance of some

members of the local police. A.R. 97-99. Petitioner

then lived in various parts of the Philippines unthreat-

ened by the New People’s Army until December 1991.

Pet. App. 9; A.R. 99, 101-103, 115-116, 133-138.5

° Petitioner submitted a new affidavit to the Board of Immigra-

tion Appeals in which he claimed that he received the death threat

Oe

5

3. Petitioner entered the United States on Decem-

ber 31, 1991, with authorization to remain for a tempo-

rary period as a nonimmigrant foreign government

official. A.R. 67,214. When petitioner failed to main-

tain that status, the Immigration and Naturalization

Service initiated deportation proceedings against

petitioner, pursuant to 8 U.S.C. 1251(a)(1)(C)(i). A.R.

75, 216. Petitioner conceded deportability, and sought

asylum and withholding of deportation, claisning that he

feared persecution by the New People’s Army. A.R.

61.

in June 1991, rather than 1989, and thus lived in the Philippines for

only six months following the threat. A.R. 31-33; see also A.R. 200

(affidavit in support of application for asylum dates the threat in

June 1991). In the affidavit submitted to the Board, petitioner

ascribes the reference to the earlier date in his testimony as either

a transcription error or a misstatement attributable to “nervous-

{ness]” while testifying. A.R. 32. However, petitioner, whose

native language is English (A.R. 74, 88), repeated or otherwise

reaffirmed the June 1989 date at least seven times during his

testimony at the hearing. A.R. 96, 97, 114, 115, 116, 119, 120. He

also testified in some detail that he resided in other parts of the

Philippines following the threat (A.R. 101) for periods of time

ranging from eight to eighteen months (A.R. 115, 135, 136-138),

which is inconsistent with his current claim that he fled to the

United States six months after the threat. The immigration judge

found that the threat was received in June 1989 (A... 65); the

Board did not disturb that finding; and the court of appeals

adopted it (Pet. App. 5). Accordingly, that finding should govern

disposition of this petition. United States v. Johnston, 268 U.S.

220, 227 (1925) (this Court “dofes] not grant a certiorari to review

evidence and discuss specific facts”); ef. Graver Tank & Mfg. Co. v.

Linde Air Prods. Co., 336 U.S. 271, 275 (1949) (“A court of law,

such as this Court is, * * * cannot undertake to review con-

current findings of fact by two courts below in the absence of a

very obvious and exceptional showing of error.”), aff’d on reh’g,

339 U.S. 605 (1950).

6

The immigration judge rejected petitioner’s applica-

tion. A.R. 61-71. The immigration judge held that pe-

titioner failed to establish his eligibility for asylum or

withholding of deportation, concluding that the record

contained no objective evidence supporting his claim

that he will be persecuted in the Philippines on the

basis of political opinion or any of the other protected

grounds. A.R. 69. The immigration judge further

found that, because petitioner had resided safely in

other parts of the Philippines for a lengthy period of

time after the threat, petitioner had not met his burden

of showing that his fear of persecution was country-

wide and could not be redressed through internal relo-

cation. A.R. 70. In this regard, the immigration judge

noted that State Department reports in the record

indicated that the New People’s Army “is diminishing

in size and resources, and is also diminishing in its abil-

ity to carry out threats.” Ibid.

The Board dismissed petitioner’s appeal. Pet. App.

9-10. While the Board accepted petitioner’s testimony

that he feared retribution from the New People’s Army

for failing to comply with its demands for money, the

Board explained that the record contained “no evidence

that such harm was politically motivated,” and that

“[a]ttempts to extort money do not constitute persecu-

tion, where it is reasonable to conclude that those at-

tempting the extortion are not motivated by the vic-

tim’s political opinion.” Jd. at 10.

4. In an unpublished decision, the court of appeals

denied the petition for review, concluding that sub-

stantial evidence supported the Board’s decision that

petitioner had not established the requisite fear of per-

secution based on political opinion or other protected

characteristics. Pet. App. 1-6. The court explained

that there was “no evidence” that the New People’s

en

7

Army singled petitioner out “because-of his political

views or his membership in a social group.” Id. at 4.

Because petitioner testified that the New People’s

Army extorted money from “landowners, business peo-

ple and peasants alike,” petitioner “failed to establish

that those attempting extortion were motivated by

their victims’ real or perceived political opinion.” Jbid.

Although petitioner claimed that he did not support the

goals of the New People’s Army, the court found no

evidence that the New People’s Army was aware of

petitioner’s views. Ibid. “Nor,” the court continued,

“is there evidence that the [New People’s Army]

actually imputed any political opinion to [petitioner]

and sought to persecute him based on that imputed

opinion.” Jd. at 5. Relying on this Court’s decision in

INS vy. Elias-Zacarias, 502 U.S. 478 (1992), the court

held that the mere “existence of a generalized political

motive of the [New People’s Army] is insufficient to

establish [petitioner’s] fear of persecution on account of

political opinion under the applicable statute.” Pet.

App. 5. Finally, the court ruled that substantial evi-

dence supported the conclusion that petitioner’s fear of

persecution was not country-wide. Jbid.

ARGUMENT

1. Petitioner contends (Pet. 6-10) that review is

necessary to redress an alleged conflict in the circuits

concerning the type of evidence that will support appli-

cation of the imputed political opinion doctrine. That

claim does not merit this Court’s review.

a. Under the imputed political opinion doctrine, an

alien may establish a fear of persecution based on politi-

cal opinion by introducing evidence that a persecutor

has undertaken its actions because of the persecutor’s

perception that the alien is a political opponent, even if

as

8

the alien in reality does not hold such views. See, ¢.9.,

Sangha v. INS, 103 F.3d 1482, 1489 (9th Cir. 1997)

(generally discussing asylum based upon imputed politi-

cal opinion); see also INS vy. Elias-Zacarias, 502 U.S.

478, 482 (1992) (“Nor is there any indication (assuming,

arguendo, it would suffice) that the guerrillas errone-

ously believed that Elias-Zacarias’ refusal {to fight with

them] was politically based.”). This case presents no

issue concerning the application of the imputed political

opinion rationale, however. The Board and the court of

appeals agreed that petitioner had produced no evi-

dence that the New People’s Army imputed any politi-

cal opinion to petitioner. See Pet. App. 5 (“Nor is

there evidence that the [New People’s Army] actually

imputed any political opinion to [petitioner].”); id. at 10

(“no evidence” that threats were politically motivated),

Thus, even if we assume, arguendo, that courts have

varied somewhat in determining whether particular |

factual records contain sufficient evidence to compel a |

finding that persecution was based on imputed political

opinion, the unpublished decision of the court of appeals

in this case presents no occasion for consideration of

that issue.

b. For the same reason, petitioner is incorrect in ar-

guing (Pet. 9) that his case would have come out differ-

ently if decided in another circuit. Quite the opposite,

within the Ninth Circuit, petitioner’s claim would have

been governed by Sangha v. INS, supra, where the

Ninth Circuit, like the Fourth Circuit here, declined to

apply the imputed political opinion rationale in the

absence of any specific evidence that the persecutors |

acted out of an animus towards the alien’s perceived

political views. 103 F.3d at 1490 (“(T]Jhere is no evi-

dence to show that the [Bhindrawala Tiger Force] acted

‘on account of’ any political opinion it imputed to

Ee

9

Sangha.”). In this case, as in Sangha, “it is equally

likely that the [persecuting group] acted for other

reasons,” ibid., such as a desire to strengthen the

organization and help it achieve its own military goals,

or to impose discipline, id. at 1490-1491 °

® The other Ninth Circuit decisions upon which petitioner relies

(Pet. 8-9) are of no help to him. In Garrovillas v. INS, 156 F.3d

1010 (1998), the threats against Garrovillas by the New People’s

Army were directly traceable to his service as an informant

against the organization and his “anti-communist beliefs and his

activities,” of which the New People’s Army was aware. Id. at

1012, 1016. By contrast, petitioner testified that he engaged in no

political activities, and “there is no evidence in the record that his

[political] views were known to the [New People’s Army].” Pet.

App. 4. Similarly, in Gonzales-Neyra v. INS, 122 F.3d 1293 (1997),

amended by 133 F.3d 726 (1998), “Gonzales-Neyra provided evi-

dence that he was persecuted, that he had a political opinion, that

he expressed it to his persecutors, and that they threatened him

only after he expressed his opinion,” and that “the Shining Path

representatives made it quite clear to Gonzales-Neyra that his

political views motivated their hostility and threats.” Jd. at 1296.

Petitioner introduced no such evidence in this case. See also Vera-

Valera v. INS, 147 F.3d 1036, 1039 (9th Cir. 1998) (record evidence

showed that “(t]he Sendero Luminoso members threatened Vera-

Valera with his life because they felt his advocacy for the con-

struction project represented political opposition to Sendero’s

goals[, and] * * * Sendero Luminoso believed that Vera-Valera

was aligned with the government, whose opposition to the con-

struction project was clearly political”). Furthermore, when pre-

sented with the virtually identical claim of persecution by a

Philippine native opposed to paying the New People’s Army’s

exactions, the Ninth Circuit rejected the claim because it con-

cluded, like the Fourth Circuit here, that the threats were moti-

vated by the victim’s economic ability to pay, not his or her

political opinion. See Borja v. INS, 139 F.3d 1251, 1254-1255

(1998). That the decision in Borja has now been withdrawn pend-

ing rehearing en banc, see 150 F.3d 1223 (1998), underscores the

absence of a current conflict between the court of appeals’ decision

in this case and any rulings of the Ninth Circuit.

10

Nor do the decisions of the Second and Third Circuits

that petitioner cites (Pet. 9-10) suggest that they would

reach a different outcome in this case. In Osorio v.

INS, 18 F.3d 1017 (2d Cir. 1994),’ the court concluded

that, while Guatemalan authorities persecuted union

leaders in part for economic reasons, “substantial

evidence * * * compel{led] the view that Guatemalan

authorities persecuted Osorio because he and his union

posed a political threat to their authority via their

organized opposition activities,” id. at 1029; that

“Osorio’s activities clearly evince[d] the politica]

opinion that strikes by municipal workers should be

legal and that workers should be given more rights,” id.

at 1030-1031; and that “Guatemala’s persecution of

Osorio was motivated in large part because it wanted to

silence the expression of these political beliefs,” id. at

1031. Petitioner, by contrast, introduced no evidence

(and cites no record authority for his claims now (Pet. 9,

10, 12)) either that the New People’s Army acted with

such dual motivations when it threatened or harmed

those who failed to comply with its monetary demands,

or that the New People’s Army read a political message

into petitioner’s failure to pay.

Likewise, in contrast to the present case, the evi-

dence in Chang v. INS, 119 F.3d 1055 (3d Cir. 1997),

“compel[led] the conclusion that China’s motives in en-

forcing its rules against Chang are based on Chang’s

political opinion,” id. at 1062, and, in particular, Chang’s

effort to protect others from punishment by the

7 Petitioner mistakenly attributes this case to the First Circuit

(Pet. 9).

1]

Chinese government, id. at 1063, and “opposition to the

policy of the Chinese government,” id. at 1065."

2. Petitioner seeks (Pet. 11-16) this Court’s review

of the court of appeals’ application of the substantial

evidence standard to the facts of his case. This Court

has long recognized, however, that “Congress has

placed in the keeping of the Courts of Appeals” the task

of evaluating whether an agency’s decision is supported

by substantial evidence. Mobil Oil Corp. v. Federal

Power Comm'n, 417 U.S. 283, 310 (1974). “This Court

will intervene only in what ought to be the rare in-

stance when the standard appears to have been mis-

apprehended or grossly misapplied.” Jbid.; see also

Universal Camera Corp. v. NLRB, 340 U.S. 474, 491

(1951). That principle should apply with particular

force when, as here, both levels of the administrative

agency and the court of appeals concurred in their

analysis of the record and its application to the gov-

erning law.

In any event, substantial evidence supported the

Board’s decision. In his testimony, petitioner admitted

that he engaged in no political activities, and he intro-

duced no evidence that the New People’s Army was

aware of his political views. Pet. App. 3-5. Petitioner

also testified that the New People’s Army extorted

“taxes” from landowners and peasants alike, id. at 4.

and “that the purpose for the extortion was for the

[New People’s Army] to obtain financing to further its

cause,” ibid., not to punish others for their political

* This Court recently denied a petition for a writ of certiorari in

a case where the petitioner, like petitioner here, contended that

record-specific variations in the outcomes of imputed political

opinion cases constituted a circuit conflict meriting this Court’s

review. See LaBorde v. INS, 119 S. Ct. 866 (1999).

12

views. The court of appeals’ ruling is thus consistent

with this Court’s decision in INS v. Elias-Zacarias,

supra, which recognized that a court reviewing the

Board’s denial of an asylum claim may not presume that

an alien has shown persecution on the basis of potitical

opinion, whether actual o7 imputed, merely because he

or she refused to cooperate with an alleged persecutor

and suffered some retribution as a result. See 502 U.S.

at 482 (evidence of forced recruitment into a guerrilla

group, or retaliation for resisting forced recruitment,

alone is insufficient to establish persecution on account

of political opinion, because “[e]ven a person who

supports a guerrilla movement might resist recruit-

ment for a variety of [non-political] reasons”).°

Furthermore, as the immigration judge and the court

of appeals noted (A.R. 70; Pet. App. 5), petitioner sepa-

rately failed to demonstrate that he faces a country-

wide risk of persecution, because he was able to live

without further disturbance in other regions of the

Philippines for a lengthy period of time after being

threatened by the New People’s Army.”

* See also Cuevas v. INS, 43 F.3d 1167. 1171 (7th Cir. 1995) |

(vefusal to sell land despite threats from New People’s Army was

based on economics, not on account of a political opinion);

Bartesaghi-Lay v. INS, 9 F.3d 819, 822 (10th Cir. 1993) (alien’s fear

of retribution for his refusal to participate in illegal drug activities

Was not a well-founded fear of persecution on account of political

opinion).

0 See, e.g., In re A-E-M-, Interim Dec. No. 3338, 1998 WL

99555 (BIA Feb. 20, 1998) (fear of persecution insufficient where it

did not “exist throughout that country”); In re C-A-L-, Interim

Dec. No. 3305, 1997 WL 80985 (BIA Feb. 21, 1997) (“This Board

has found that an alien seeking to meet the definition of a refugee

must do more than show a well-founded fear of persecution in a

particular place withir a country. He must show that the threat of

persecution exists for him country-wide.”); 63 Fed. Reg. 31,947

——

13

3. Finally, petitioner argues (Pet. 16-18) that this

Court should “revisit” its decision in Elias-Zacarias

because, he contends, that decision conflicts with the

“political values” underlying the United Nations Proto-

col Relating to the Status of Refugees, Jan. 31, 1967, 19

U.S.T. 6224, and the United Nations High Commis-

sioner for Refugees, Handbook on Procedures and Cri-

teria for Determining Refugee Status Under the 1951

Convention and the 1967 Protocol Relating to the

Status of Refugees (rev. ed. Jan. 1992) (UNHCR Hand-

book). That claim is without merit for three reasons.

First, assuming arguendo that petitioner has prop-

erly discerned the “political values” (Pet. 17) underlying

the Protocol, courts are not bound by the unwritten

values animating international instruments. See Sale v.

Haitian Ctrs. Council, Inc., 509 U.S. 155, 183 (1993)

(“[A] treaty cannot impose uncontemplated * * *

obligations on those who ratify it through no more than

its general humanitarian intent.”). That is particularly

true with respect to the Protocol, because it is not a

self-executing treaty. See United States v. Aguilar,

883 F.2d 662, 680 (9th Cir. 1989), cert. denied, 498 U.S.

1046 (1991); Bertrand v. Sava, 684 F.2d 204, 218-219 (2d

Cir. 1982). Nor is the UNHCR Handbook binding on

the INS, Congress, or the courts. See INS v. Ca rdoza-

Fonseca, 480 U.S. 421, 439 n.22 (1987) (“We do not

suggest, of course, that the explanation in the U.N.

(1998) (“The Board and the Federal courts have long acknowl-

edged the requirement of countrywide persecution as an integral

component of the refugee definition, which cannot be met if the

applicant reasonably could be expected to seek protection by

relocating to another part of the country in question.”). The Board

found it unnecessary to reach the issue of whether the persecution

petitioner claimed to face was country-wide. Pet. App. 9-10.

14

Handbook has the force of law or in any way binds the

INS.”).

Second, Elias-Zacarias is consistent with the Proto-

col. Nothing in the text of the Protocol regulates the

evidentiary burdens signatory states apply in deter-

mining whether an individual satisfies the definition of

“refugee.” To the contrary, “the determination of refu-

gee status under the 1951 Convention and the 1967

Protocol * * * is incumbent upon the Contracting

State in whose territory the refugee finds himself.”

Cardoza-Fonseca, 480 U.S. at 439 n.22 (quoting

UNHCR Handbook Foreword (I1)).

Third, petitioner makes no argument that any princi-

ples concerning exceptions to the doctrine of stare

decisis support reconsideration of E] ias-Zacarias. See

€.g., Payne v. Tennessee, 501 U.S. 808, 827 (1991)

(“Stare decisis is the preferred course because it pro-

motes the evenhanded, predictable, and consistent de-

velopment of legal principles, fosters reliance on judicial

decisions, and contributes to the actual and perceived

integrity of the judicial process.”). That doctrine ap-

plies with “special force” here, because the interpreta-

tion and application of statutory law is at issue and thus

“Congress remains free to alter what [the Court] ha[s]

done.” Hohn v. United States, 118 S. Ct. 1969, 1977

(1998).

ea ee

15

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

SETH P. WAXMAN

Solicitor Geneva!

DAVID W. OGDEN

Acting Assistant Attorney

General

DONALD E. KEENE!

DAVID M. MCCONNEL]

LINDA S. WENDTLAND

LAURA A. SMITH

APRIL 1999