No. 88-7108.

United States Court of Appeals, Ninth Circuit.

Before BRUNETTI and NOONAN, Circuit Judges, and HARRY L. HUPP,* District Judge.

MEMORANDUM**

Marco Antonio Escobar-Flamenco ("Escobar") appeals from a decision of the Board of Immigration Appeals ("BIA") denying his petitions for withholding of deportation and for grant of eligibility for asylum. We reverse the BIA's denial of eligibility for asylum, and affirm the BIA's decision in all other respects.

Escobar is a native citizen of El Salvador, residing until recently in Guazapa, El Salvador. According to his testimony, he has a mother, father, brother and sister living in El Salvador. His mother was active in the Roman Catholic Church and sponsored a number of study groups in the home. The study groups are apparently opposed to the government, and Escobar claims that the government views the groups as "communist and subversive." Father Grandis, the group's leader, was killed near Escobar's hometown of Guazapa.

Escobar attended high school approximately twelve miles from Guazapa. It is Escobar's opinion that he was looked on with suspicion by the local authorities for his traveling to and from high school. Escobar was a representative in a school organization, the Educational Movement of Revolutionary Students, that was critical of the school administration.

Escobar graduated from high school in December, 1979, and planned to enter the National University in San Salvador. However, the army closed the University, and Escobar spent one year living with his mother, selling flowers. In 1981, Escobar entered the Polytechnical University in San Salvador, and studied engineering and agriculture for eleven months.

Escobar's brother Manuel was an organizer for the FMLN, an extreme left wing group. Manuel was arrested and tortured as a suspected terrorist, but later released.

In November, 1981, Escobar worked as an organizer in the government's agricultural reform program. The program was sponsored by the government and backed by the United States. However, Escobar believes that the governing class and landowners felt that the program was communist and subversive.

In 1983, the city hall in Tonocatepeque, a small town approximately six miles from Guazapa, was burned by guerrillas The guerrillas went to Guazapa and, apparently by chance, Escobar was seen with the guerrillas. A store owner reported to the police that Escobar was in the company of these terrorists.

Shortly after this incident, a close friend of Escobar told him that the friend's father, an "influential" man, said that Escobar was on a death list. Escobar's mother consulted the police, who told her that they also had indirect information that Escobar had been added to a death list. The police advised Escobar's mother that Escobar should leave the country. Approximately six months after Escobar learned that he might be on the list, he left El Salvador for Mexico. On June 18, 1983, Escobar entered the United States without first being inspected by a U.S. Immigration Officer. He was apprehended at once and notified that he was deportable under Section 241(a)(2) of the Act. On December 22, 1983, Escobar filed an affidavit seeking withholding of deportation and asylum.

A deportation hearing was held on November 1, 1984, before an Immigration Judge (IJ). The IJ had previously held a preliminary hearing on Escobar's motion to exclude evidence assertedly obtained in violation of the Fourth Amendment. That motion was denied, and no appeal was taken from the denial to the Board of Immigration Appeals (BIA).

At the deportation hearing, Escobar testified to the facts set out above. He also presented Gary MacEoin as a witness on his behalf. MacEoin was admitted by the immigration judge "as an expert in the area of Central America." MacEoin testified that a death list was not an announcement that you were going to be killed immediately, but that you were in "danger of being killed at the appropriate moment."

The IJ's oral decision stated, with regard to the death list, "I do not feel that the threat is as great as the applicant may deem. It should be noted that he remained in the country for a period of some six months after learning that he was targeted for death, if, in fact, he was targeted for death." The IJ also noted MacEoin's testimony that a death list meant that you would be killed at an appropriate moment and continued, "If, in fact, there existed a death list with the respondent's name on the same the question then becomes, 'What is the appropriate moment?' This list, if it is in existence, is over a year and one half years old. There is a question in my mind if that same list exists today as it may have in the past."

The IJ found that much of the evidence presented by appellant was "the utmost of speculation," and that even the plausible evidence was insufficient to establish the probability of persecution, and denied both eligibility for asylum and withholding of deportation.

Escobar appealed to the BIA. The BIA entered its order on February 19, 1988, denying Escobar's appeal.

Escobar appealed to this court.

I. Escobar's Procedural Claims.

Escobar claims that the United States authorities who first stopped him obtained evidence in violation of the Fourth Amendment. However, Escobar did not appeal this issue to the BIA. Since Escobar failed to bring the point before the BIA, he did not exhaust his administrative remedies. Thus, we cannot review his contention. Vargas v. INS, 831 F.2d 906 (9th Cir.1987).

The same rule applies to Escobar's other contentions that his Fifth Amendment privilege against self-incrimination was violated by the judge's cutting off his proffered testimony. These claims were not presented to the BIA and we cannot review them.

II. The Denial of Eligibility for Asylum.

To establish eligibility for asylum under 8 U.S.C. Sec. 1158, an alien must show a "well founded fear of persecution." 8 U.S.C. Sec. 1101(a)(42)(A). We review the BIA's decision to determine whether substantial evidence supported its denial of eligibility for asylum. Arteaga v. INS, 836 F.2d 1227, 1231 (9th Cir.1988). The showing necessary for eligibility for asylum differs from that necessary for withholding of deportation. The statutory standard ("well-founded fear of persecution") implies both subjective and objective elements. The alien's fear must be genuine. The fear must be reasonable. Rodriguez-Rivera v. INS, 848 F.2d 998, 1003 (9th Cir.1988); Sanchez-Trujillo v. INS, 801 F.2d 1571 (9th Cir.1985. As shown by his testimony regarding his student activities, his knowledge that his name was on a death list, with police confirmation of the same and advice to leave the country, Escobar has successfully shown that he actually fears persecution and that his fear has a sufficient basis in objective facts. Thus, the BIA erred in affirming the IJ's denial of eligibility for asylum.

III. The Withholding of Deportation.

To qualify for withholding of deportation, an alien must show that it is more likely than not that he will be persecuted "on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. Sec. 1253(h); Blanco-Comarribas v. INS, 830 F.2d 1039, 1041 (9th Cir.1987). "Withholding is not required if the alien 'might' or could be subject to persecution. A clear probability ... of persecution must be demonstrated." Blanco-Comarribas, 830 F.2d at 1041 (emphasis added).

In denying Escobar's claim for withholding of deportation, the BIA used the same evidence that it used to deny eligibility for asylum. However, Escobar's burden of proof is much higher. Establishing a fear of possible persecution is not sufficient to establish a clear probability of persecution. Id. Escobar has not met this higher burden of proof. Thus, the BIA did not err in affirming the IJ's denial of withholding of deportation.

Accordingly, we reverse the BIA's decision on eligibility for asylum, and affirm the BIA's decision in all other respects.

AFFIRMED IN PART AND REVERSED IN PART.

I concur in the judgment of the court.

I dissent from Section II of the memorandum of the court. There is both an objective component ("well founded") and subjective component ("fear") to the statutory test for "well-founded fear of persecution." "The subjective component requires that the fear be genuine, while the objective component 'requires a showing by credible, direct, and specific evidence in the record of facts that would support a reasonable fear that the petitioner faces persecution (citations omitted).' " Rodriguez-Rivera v. INS, 848 F.2d 998, 1001-2 (9th Cir.1988).

With respect to the subjective fear requirement, Escobar successfully showed that he actually believed that his life would be in danger if he remained in El Salvador. The IJ did not question his credibility on this issue.

With respect to the objective requirement, Escobar has not submitted sufficient evidence that it was reasonable for him to fear for his life. The problem lies in the quality of Escobar's evidence. The evidence of a "death list" containing Escobar's name consists of double hearsay or triple hearsay. Even assuming Escobar's credibility, the Immigration Judge did not err in questioning the existence and importance of the "death list." Furthermore, while Escobar participated in organizations critical of the government, there is no significant evidence that this will result in Escobar's persecution. Any fear of persecution based on these activities is pure speculation.

The record contains additional evidence that undercuts Escobar's claim. For example, Escobar's mother was not harmed, despite the fact that she shared her son's views and some of his activities. At the time of the hearing she still resided unmolested in El Salvador. Additionally, Escobar himself resided safely in El Salvador for the six months following the report that he had been placed on a death list. See Rodriguez-Rivera, 848 F.2D at 1006 (unmolested delay of only 2 months undermined claims by alien that life was in jeopardy).

Considering the quality of Escobar's evidence, the Immigration Judge did not err in holding that Escobar failed to establish a well-founded fear of persecution. Thus, the BIA's determination on this issue should be affirmed.