UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

JOSE A. AMAYA,

Petitioner,

v.

No. 97-2724

U.S. IMMIGRATION & NATURALIZATION

SERVICE,

Respondent.

On Petition for Review of an Order

of the Board of Immigration Appeals.

(A74-665-597)

Submitted: July 14, 1998

Decided: August 4, 1998

Before WIDENER, HAMILTON, and MICHAEL, Circuit Judges.

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Petition denied by unpublished per curiam opinion.

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COUNSEL

Ronald D. Richey, Jaime W. Aparisi, Rockville, Maryland, for Petitioner. Frank W. Hunger, Assistant Attorney General, Stephen Funk,

Senior Litigation Counsel, Lorri L. Shealy, 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Unpublished opinions are not binding precedent in this circuit.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:

Petitioner Jose Amaya seeks review of an order of the Board of

Immigration Appeals (Board) affirming the decision of the immigration judge (IJ) and denying him political asylum, 8 U.S.C.A. § 1158

(West Supp. 1998), and withholding of deportation, 8 U.S.C.A.

§ 1253(h) (West Supp. 1998). Amaya is a citizen of El Salvador who

entered the United States without inspection in 1990. The Immigration and Nationalization Service instituted deportation proceedings in

1996. Amaya conceded deportability but applied for asylum and withholding of deportation, which were denied by the IJ after a hearing.

The Board affirmed, and we deny the petition for review.

Amaya alleges that he fears persecution by ex-guerrillas if he

returns to El Salvador. During the civil unrest in that country, three

of Amaya's uncles were commanders in the rebel group, Farabundo

Marti Front for National Liberation (F.M.L.N.), and they repeatedly

asked Amaya to join the rebels. He told them each time that he did

not want to help them. Amaya testified at the hearing that government

soldiers in the area suspected Amaya or his family were cooperating

with the rebels and interrogated them about Amaya's uncles. He also

testified that a massacre occurred in a town near his home, perpetrated

by either the government troops or the guerrillas, which caused him

to fear additional killings. Amaya testified that he belonged to a religious group, the Apostles and Prophets, which promoted peace.

Amaya moved to another part of El Salvador before he came to the

United States. His parents and sisters remain in El Salvador. Amaya

acknowledged that a peace agreement was signed in 1992, ending the

war between the F.M.L.N. and the government. No member of

Amaya's family was injured or killed during the civil war.

Amaya sought to argue before both the IJ and the Board that he had

been persecuted because of his political neutrality. His claim was

rejected.

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On appeal, Amaya alleges that he is entitled to refugee status based

on his past persecution and well-founded fear of future persecution

for his political neutrality. Amaya also argues that both the F.M.L.N.

and the army imputed a political opinion to him, and that he fears persecution for his membership in the Apostles and Prophets.

The Immigration and Nationality Act (the Act), 8 U.S.C.A.

§§ 1101-1537 (West 1970 & Supp. 1998), provides two routes to

avoid deportation for an otherwise deportable alien who claims he

will be persecuted if he returns to his home country. First, an alien

can apply for asylum. 8 U.S.C. § 1158(a). The Attorney General has

authority, under § 1158(b)(1), to confer asylum on an alien if she concludes the alien is a refugee as defined by the Act. A refugee is anyone unwilling or unable to return to his native country "because of

persecution or a well-founded fear of persecution on account of race,

religion, nationality, membership in a particular social group, or political opinion. . . ." 8 U.S.C.A. § 1101(a)(42)(A) (West Supp. 1998). To

establish a well-founded fear of persecution, the alien 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." Huaman-Cornelio v.

Board of Immigration Appeals, 979 F.2d 995, 999 (4th Cir. 1992)

(internal quotation marks omitted). The fear must be appreciably different from the dangers faced by the alien's fellow citizens.

Figeroa v. INS, 886 F.2d 76, 80 (4th Cir. 1989).

An alien claiming persecution can also avoid deportation through

the provision known as "withholding of deportation," under which the

Attorney General will not deport an alien upon finding that the alien's

life or freedom would be threatened there because of his race, religion, nationality, membership in a social group, or political opinion.

8 U.S.C.A. § 1253(h) (West Supp. 1996).1 The alien must demonstrate a clear probability of persecution based on one of these factors.

INS v. Cardoza-Fonseca, 480 U.S. 421, 430 (1987). If an alien is

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1 Amaya was in exclusion proceedings before the effective date of the

Illegal Immigration Reform Immigrant Responsibility Act of 1996

(IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009. Therefore, under the

transitional rules contained in § 309(c)(1) of the IIRIRA, the amendments to the Act do not apply.

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unable to establish his right to asylum, he will be unable to meet this

stricter standard for withholding of deportation. Huaman-Cornelio,

979 F.2d at 1000.

This Court must uphold the Board's decision dismissing appeal of

the IJ's ruling if it is supported by "reasonable, substantial, and probative evidence on the record considered as a whole. .. ." 8 U.S.C.A.

§ 1105(a)(4) (West Supp. 1998).2 The Board's ruling that Amaya is

not entitled to asylum or withholding of deportation cannot be

reversed unless the Court concludes that the evidence presented was

so compelling no reasonable fact finder could fail to perceive the requisite fear of persecution. INS v. Elias-Zacarias, 502 U.S. 478, 483-

84 (1992).

Even if refusal to take sides in a conflict is the expression of a

political opinion, the alien still must establish that he has been persecuted, or has a well-founded fear of persecution, because of that opinion. Id. at 483. Where the alien seeks to overturn the decision of the

Board, the statutory scheme requires him to provide compelling evidence that the alleged persecutors are motivated by his political opinion. Id. Amaya has failed to meet this burden.

The evidence does not establish that Amaya has been or "will be

subjected to persecution or other harm based on actual or imputed

opinion, any more than any other citizen of El Salvador who participated in or refused to participate in the activities of either the guerrillas or the army." Cruz-Diaz v. INS, 86 F.3d 330, 332 (4th Cir. 1996).

He was urged to enlist with the rebels several times and refused several times, with no adverse consequences to him or his family. Amaya

has not borne the burden of showing that the guerrillas or the government troops were motivated to persecute him because of any professed political neutrality on his part. The civil war no longer goes on

in El Salvador, and while there may continue to be some unrest,

Amaya offered nothing to establish that those who refused to enlist

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2 We note that 8 U.S.C. § 1105(a)(4) was repealed by the IIRIRA, and

replaced with 8 U.S.C.A. § 1252(b)(4) (West Supp. 1998). But because

this case was in transition at the time the IIRIRA was passed, 8 U.S.C.

§ 1105(a)(4) is still applicable under the terms of the transitional rules

contained in § 309(c)(4) of the IIRIRA.

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to aid the guerrillas are at risk of any persecution. His arguments

regarding his "imputed political opinion" and membership in the

social group promoting peace also must fail for lack of evidentiary

support. Moreover, since Amaya has not established his eligibility for

asylum, he cannot satisfy the higher standard for withholding of

deportation under 8 U.S.C. § 1253(h). Huaman-Cornelio, 979 F.2d at

1000. We deny the petition for review. 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.

PETITION DENIED

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