UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

SHERWIN HEIDARI,

Petitioner,

v.

No. 95-3137

U.S. IMMIGRATION & NATURALIZATION

SERVICE,

Respondent.

On Petition for Review of an Order of

the Board of Immigration Appeals.

(A70-694-075)

Submitted: October 29, 1996

Decided: December 13, 1996

Before WIDENER and MURNAGHAN, Circuit Judges, and

BUTZNER, Senior Circuit Judge.

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Affirmed by unpublished per curiam opinion.

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COUNSEL

John William O'Leary, Washington, D.C., for Petitioner. Frank W.

Hunger, Assistant Attorney General, Joan E. Smiley, Senior Litigation Counsel, Lisa M. Arnold, Civil Division, 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Unpublished opinions are not binding precedent in this circuit.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:

Sherwin Heidari appeals from the Board of Immigration Appeals'

affirmance of the Immigration Judge's order denying asylum or withholding of deportation. We affirm.

During his teenage years Heidari's parents arranged for him to be

smuggled out of Iran in order to avoid conscription in the Iranian

army. He entered the United States on a nonimmigrant visa and

applied for political asylum prior to the expiration of that visa. At a

deportation hearing Heidari conceded deportability, but requested

asylum or withholding of deportation based upon a well-founded fear

of persecution under the Refugee Act, 8 U.S.C. § 1101(a)(42)(A)

(1994). To be eligible for a discretionary grant of asylum under this

Act, an alien must demonstrate that he has been persecuted, or has a

well-founded fear of persecution, in his native country on account of

race, religion, nationality, membership in a particular social group, or

political opinion. Huaman-Cornelio v. Board of Immigration Appeals,

979 F.2d 995, 999 (4th Cir. 1992). We find Heidari's alleged social

group--well traveled, educated, secular, Westernized youths speaking

three languages fluently who are also draft evaders--is not one recognized as falling within the type of group envisioned by

§ 1101(a)(42)(A).

We note, however, that draft evaders are considered to constitute

a special category of refugees and that, although generally penalties

imposed for draft evasion are not considered persecution, asylum may

be granted where: (1) the alien would be associated with a military

whose acts are condemned by the international community as contrary to the basic rules of human conduct; or (2) the alien's refusal to

serve would not result in normal draft evasion penalties, but in disproportionately severe punishment on account of: race, religion, nationality, political group, or a particular social group. M.A. v. INS, 899 F.2d

304, 312 (4th Cir. 1990) (en banc).

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Heidari argues that the latter exception--disproportionately severe

punishment--applies to his claim. We find, however, that he has

failed to demonstrate that he will receive a more severe punishment

upon his return than any other draft evader on account of one of the

five enumerated factors. Accordingly, he has failed to establish an

entitlement to asylum. See M.A. v. INS, 858 F.2d 210, 215 (4th Cir.

1988) ("One who shows only that he will be punished the same as any

other draft evader or deserter in his country, does not state a valid

claim of persecution."), vacated on other grounds, 866 F.2d 660 (4th

Cir. 1989).* We therefore affirm. 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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*Heidari's inability to meet the lesser burden required for asylum necessarily dictates his inability to sustain the more stringent burden

required for withholding of deportation. Huaman-Cornelio, 979 F.2d at

1000. Accordingly, we affirm the BIA's denial of that request as well.

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