UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ISAAC MAURO ESPINOZA, a/k/a Isaac

Morrow Espinoza; CAROLINA

CACSIRE ESPINOZA; CAROLINA INES

ESPINOZA; CARLOS ENRIQUE ESPINOZA;

ISAAC MAURO ESPINOZA, a/k/a Isaac

Morrow Espinoza, Jr.; JANETH SUSSY

No. 98-1510

ESPINOZA,

Petitioners,

v.

U.S. IMMIGRATION & NATURALIZATION

SERVICE,

Respondent.

On Petition for Review of an Order

of the Board of Immigration Appeals.

(A72-378-079, A72-378-135, A72-378-136, A72-378-137,

A72-378-138, A72-378-139)

Submitted: September 29, 1998

Decided: November 12, 1998

Before MURNAGHAN, ERVIN, and NIEMEYER, Circuit Judges.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

Richard S. Bromberg, Washington, D.C., for Petitioners. Frank W.

Hunger, Assistant Attorney General, Mark C. Walters, Assistant
Director, Kristen A. Giuffreda, Office of Immigration Litigation,

UNITED STATES DEPARTMENT OF JUSTICE, Washington,

D.C., for Respondent.

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Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

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OPINION

PER CURIAM:

Isaac Mauro Espinoza ("Espinoza"), along with his wife and children, seek review of the order of the Board of Immigration Appeals

("BIA") affirming the immigration judge's deportation order. Because

we find that Espinoza has failed to establish that he was persecuted

in Peru, or that he has a well-founded fear of persecution on account

of his political opinion if he returns to Peru, we deny the petition.

Espinoza and his family are natives and citizens of Peru who

entered the United States in March 1989 as tourists permitted to

remain no longer than six months. The Espinozas, however, remained

in the United States beyond this six-month period and, for this reason,

the Immigration and Naturalization Service charged them as deportable aliens. The Espinozas admitted deportability and asked for asylum in the United States. In September 1995, before an immigration

judge, Espinoza testified in support of their asylum applications. His

experiences in Peru form the basis of the Espinoza family's asylum

claims.

Espinoza testified that he was a public accountant with a company

in Lima, Peru, for approximately twenty years. During that time, he

was involved in numerous professional and management institutions,

including the Board of Public Accountants in Lima, the Chamber of

Commerce in Lima, the National Association of Industries, the

National Confederations of Businessmen, and Action Supmelcana. He

stated that these organizations supported democratic government and

were considered enemies of the Shining Path guerilla movement.

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Espinoza further testified that, beginning in 1987, he received

threats from the Shining Path. He stated that the Shining Path wanted

him to join their campaign against Peru's democratic government and

threatened to destroy his family, property, business, and houses if he

refused. Because of these threats, Espinoza resigned from his position

as a public accountant and moved his family to southern Peru, where

he formed his own company. However, Espinoza stated that, while in

southern Peru, the threats intensified and he personally knew one person whom the Shining Path assassinated. Espinoza and his family left

Peru in March 1989. He testified that if he returns to Peru, he will

experience the same problems that he was exposed to before he left.1

The immigration judge (the "IJ") denied the Espinozas' applications for political asylum and withholding of deportation. The BIA

affirmed the IJ's determinations. The BIA concluded that threats

Espinoza received did not rise to the level of persecution and that

Espinoza lacked "an objective, well-founded fear of persecution from

the Shining Path" should he return to Peru.2 The Espinozas appeal,

contending that the BIA's determinations are not supported by substantial evidence.

Our scope of review of BIA decisions is narrow."The Supreme

Court has stated that we must uphold the BIA's decision if it is supported by substantial evidence from the record as a whole. . . . This

narrow standard of review recognizes the respect we must accord both

the BIA's expertise in immigration matters and its status as the Attorney General's designee in deportation decisions."3

To be eligible for asylum, an alien must meet the definition of "refugee" as defined in the Immigration and Nationality Act (the "INA").

Under the INA, a refugee is any person who is unable to return to his

or her country because of "[past] persecution or a well-founded fear

of persecution on account of race, religion, nationality, membership

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1 Two of Espinoza's children also testified at the hearing. Both

expressed fear of returning to Peru.

2 Administrative Record ("A.R.") at 5.

3 Huaman-Cornelio v. BIA, 979 F.2d 995, 999 (4th Cir. 1992) (citation

omitted).

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in a particular social group, or political opinion .. . ."4 Espinoza contends that the BIA's determination that he was not persecuted in the

past and that he did not have a "well-founded" fear of persecution if

he returns to Peru are not supported by substantial evidence. We

address each in turn.

First, Espinoza argues that the Shining Path persecuted him when

he was in Peru. He contends that the Shining Path threatened him

because of his membership in numerous professional and management organizations which opposed the guerilla group. Espinoza

claims that his family was terrorized because he refused to join the

Shining Path's struggle against the Peruvian government based on his

political opinion.

We agree with the BIA that, while regrettable, "the harassment that

[Espinoza] received in the form of threats does not rise to the level

of persecution."5 Although the INA does not define "persecution,"

other circuits have refused to interpret the word expansively. As the

Third Circuit stated in Fatin v. INS,6 "persecution does not encompass

all treatment that our society regards as unfair, unjust, or even unlawful or unconstitutional."7 Similarly, the Ninth Circuit has cautioned

that "`persecution is an extreme concept that does not include every

sort of treatment our society regards as offensive.'"8 In the instant

case, aside from threats, which were never acted upon, neither

Espinoza nor his immediate family ever had any encounters with the

Shining Path. Therefore, we do not believe that the case law supports

a finding that these threats constituted persecution.

Espinoza also contends that substantial evidence does not support

the BIA's determination that he failed to demonstrate a well-founded

fear that he will be persecuted by the Shining Path if he returns to

Peru. Espinoza claims that his description of the Shining Path's

threats was sufficient to establish that he had a well-founded fear of

persecution when he left Peru in 1989. He further alleges that condi-

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4 8 U.S.C.A. § 1101(a)(42)(A) (West Supp. 1998).

5 A.R. at 4 (citations omitted).

6 12 F.3d 1233 (3d Cir. 1993).

7 Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993).

8 Ghaly v. INS, 58 F.3d 1425, 1431 (9th Cir. 1995) (citations omitted).

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tions in Peru have not changed to such an extent as to make that fear

no longer reasonable.

We have held that in order to prove a well-founded fear of persecution, an individual seeking asylum must show: "(1) that a reasonable

person in the circumstances would fear persecution; and (2) that the

fear has `some basis in the reality of the circumstances' and is validated with `specific, concrete facts.'"9 In the instant case, the BIA

determined that, given the nine-year time lapse since Espinoza left

Peru, combined with the current diminished strength of the Shining

Path, Espinoza lacked an objective, well-founded fear that the Shining

Path had the ability to identify or target him for persecution. We

agree.

As both the BIA and the Seventh Circuit have noted, changed political and social conditions can constitute "the most relevant factor" in

evaluating the reasonableness of a petitioner's fear of persecution.10

Here, the BIA considered a report supplied by the State Department

which indicated that the Peruvian government "has seriously damaged" the Shining Path, that the government had apprehended, convicted, and imprisoned principal Shining Path leaders, and that there

has been a dismantling of the Shining Path's command and control

structure. Based on this evidence, we believe that the BIA properly

determined that Espinoza lacked "an objectively reasonable fear that

the Shining Path can identify him as the past target of its threats" or

that it would actually target him despite its current limited ability to

do so.11

Based upon the foregoing, we deny the Espinozas' petition for

review and affirm the BIA's order. We dispense with oral argument

because the facts and legal contentions are adequately presented in the

materials before the court and argument would not aid the decisional

process.

AFFIRMED

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9 Huaman-Cornelio, 979 F.2d at 999 (quoting M.A. v. INS, 899 F.2d

304, 311 (4th Cir. 1990)).

10 See Mitev v. INS, 67 F.3d 1325, 1332 (7th Cir. 1995) (noting that

changed political and social conditions are the most relevant factor).

11 A.R. at 6.

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