## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 98-1861

___________ Jose Cigaran and Lucia * Requeno-de Cigaran, * * Petitioners, * * Petition for Review of an Order of the v. * Immigration and Natural ization Service. * Michael Heston, District Director, * Immigration and Naturalization Service, * and Janet Reno, Attorney General of * the United States of America, * * Respondents. *

___________ Submitted: September 22, 1998 Filed: October 30, 1998

___________ Before HANSEN, BRIGHT, and MORRIS SHEPPARD ARNOLD, Circuit Judges.

___________
MORRIS SHEPPARD ARNOLD, Circuit Judge.
Jose Cigaran and Lucia Requeno-de Cigaran, his wife, are natives of E l Salvador. During his service in the El Salvadoran military and national guard , Mr. Cigaran became acquainted with the activities of a military unit known as-2-

Section II, members of which took o pponents of the government from their homes for inte rrogation and, sometimes, "elimination." Due in part to his disapproval of thes e acti ons, Mr. Cigaran left the military and took a position as a security guard at th e Univer sity of Central America in San Salvador, an institution that was run by Jesuits.
During the course of his employment at the university, Mr. Cigaran encountered Section II members on three separate occasions. On the first occasion, Section I I members who knew Mr. Cigaran from his national guard days attempted to enter the campus, but Mr. Cigaran refused to allow them to do so. They accused him of leftist sympathies and threatened that he would disappear if he did not help them

. Approximately two months later they retur ned, threatening that Mr. Cigaran would die if he did not cooperate. He refused them again. Shortly after this incident, six Jesuit pri ests, their housekeeper, and her daughter were all brutally murdered at th e university. The Section II members returned days later, again accusing Mr. Cigaran of leftist sympathies and threatening him. One week later, Mr. Cigaran quit his job and repaired to his parents' home in Lourdes, where he stayed for nearly a year. He and his wife the n fled to the United States through Mexico, entering without inspection i n 1991.
Mr. Cigaran appli ed for political asylum, and his wife joined in his application,
re lying on him as principal petitioner. The immigration judge denied the application. The Board of Immigration Appea ls (BIA) dismissed Mr. Cigaran's subsequent appeal, holding that he had not suffer ed past persecution and did not have a well-founded fear of future persecution, and was therefore not eligible for asylum. We affirm the decision of the BIA.

I. An alien is eligible for asylum if he or she is outside his or her own country and "is unab le ... to avail himself or herself of the protection of that country because o f persecution or a well-founded fear of persecution on account of race, religion,-3-

nationality, membership in a particular social group, or political op inion." See 8 U.S.C. § 1101(a)(42)(A). In t

he usual case, the critical inquiry is whether the applicant has a well-founded fear of future persecut ion upon return to his or her country. To establish such a fear, an applicant mus t demonstrate a fear that is both subjectively genuine and objectively reasonable. See , e.g. , Immigration an d Naturalization Service v. CardozoFonseca , 480 U.S. 421, 430-31 (1987), and Hamhezi v. Immigration an d Naturalization Service , 64 F.3d 1240, 1242 (8th Cir. 1995); see also 8 C.F.R. § 208.13(b)(2).

The applicant is entitled to a presumption of a well-founded fear of futur e persecution if past persecution is established, and the burden then shifts to th e Immigrationand Naturalization Service to show by a preponderance of the evidenc e that " conditions in the applicant's country ... have changed to such an extent that th e applicant n o longer has a well-founded fear of being persecuted if he or she were t o ret urn." See 8 C.F.R. § 208.13(b)(1)(i). Even if the INS carries this burden , "humanit arian asylum" may be granted based on past persecution alone if tha t perse cutionwas particularly atrocious. See , e.g. , Asani v. Immigration an d Naturalization Service , 154 F.3d 7 19, _____, 1998 WL 560265, at *2 (7th Cir. 1998), and Matte r of Chen , 20 I. and N. Dec. 16, 19 (B.I.A. 1989); see also 8 C.F.R

. § 208.13(b)(1)(ii).

II. Mr. Cigaran f

irst contends that the BIA should have considered the cumulative impact of the relevant incidents in the record to determine whether they ros e to the level of persecution, rather than considering them separately. See , e.g. , S ingh v. Immigration and Naturali zation Service , 134 F.3d 962, 967 (9th Cir. 1998). If the BIA had done so, Mr. Cigaran argues, it would have to have made a finding of past persecution , which would then have created a presumption of a well-founded fear of futur e persecution, thereby shifting the burden to the INS to prove by a preponderance of the evidence that Mr. Cigaran's fear was not well-founded. M r. Cigaran also contends that the INS did not meet this burden.-4-

Even if we assume that the law requires the kind of analysis that Mr. Cigara n arg ues for, and that such an analysis would necessarily have led to a finding of pas t perse cutionand a shifting of the burden of proof to the INS, Mr. Cigaran's appea l would still fail. The

shifting of an evidentiary burden of preponderance is of practical consequence only in the rare event of an evidentiary tie: If the evidence that the parties pres ent balances out perfectly, the party bearing the burden loses. In this case , theref ore, the BIA's refusal to shift the burden to the INS injured Mr. Cigaran' s application only if the evidence was i n equipoise, causing Mr. Cigaran to lose because he had the burden of proof. There is n o indication, however, that the BIA thought that tha t was the case, nor can we say that, as a matter of law, the evidence was i n equipoise. In fact, the record makes it clear, in our view, that the BIA believed that the preponderance of the evidence established that Mr. Ci garan's fear of future persecution was not obj ectively reasonable, and therefore not well-founded. It is also clear to us, as we discuss below, that the record supports that belief.

We review the BIA's findings on this matter under a "substantial evidence " standard, and must affirm where there is evidence sufficient for a reasonable fact finder to conclude

that the alien in question lacked a well-founded fear of persecution. See , e.g. , Immigration and Naturalization Service v. Elias-Zacarias , 502 U.S. 478, 48 1 (199 2), and Ghasemimehr v. Immigration and Naturalization Service , 7 F.3d 1389 , 1390 (8th Cir. 1993) ( per curiam ).
Although Mr. Cigaran presented evidence that dangerous pa ramilitary gangs still exist in El Salvador, there was significant evidence tending to show that the political situation in El Salvador has changed in ways that render Mr. Cigaran's fear
unreason able. Evidence contained in documents produced by the United State s Department of State

for the Senate Committee on Foreign Relations and the House of Representatives Committee on Foreign Affairs indicated that political violence in E l Salvador has subsided substantially in the nine y ears since Mr. Cigaran was threatened by the death

squads. The United States Department of State profile of asylum claims-5-

and country conditions for El Salvador for October, 1995, reported "no con firmed cases of politically motivated killings" in El Salvador in 1994 and no ver ified cases of "forced disappearance" in over two years. The evidence that Mr. Cigaran advanced may have ten ded to show that El Salvador is a dangerous place generally, but there was als o sufficiente vidence for a reasonable fact finder to conclude that his fear of futur e persecution on political grounds was not reasonable.

III. Fi nally, Mr. Cigaran contends that he should have been granted asylum base d
on past persecution alone. "Humanitarian asylum" has been reserved for those cases in which the past persecution suffered has been particularly at rocious. See , e.g. , Rojas v. I mmigration and Naturalization Service , 937 F.2d 186, 188 (5th Cir. 1991) (denial of human itarian asylum upheld although applicant was arrested, beaten, fired, an d denied other employment), and Matter of Ch en , 20 I. and N. Dec. at 21, (humanitarian asylum granted where applicant was torture d, harassed, confined, and denied food and medical attention). The incidents that Mr. Cigaran cites do not rise to the required level of atrocity. In fact, he was only threatened; no one, as far as the record shows, ever laid a hand on him. The BIA did not therefore err in denying him asylum based solely on past persecution.

IV. For the reasons stated, we affirm the decision of the BIA.
A true copy.

Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.