* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable Michael Burrage, Chief Judge, United Stat es District Court for the Eastern District of Oklahoma, sitting by design ation. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 5 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

OSCAR GARCIA; DELIA E. SOSA-GARCIA; LOIDY EUNICE GARCIA; MARLYN K. GARCIA; ANNELLIE IXMUCANE GARCIA; HENDRICK ARODY GARCIA; JHOSSELIN MADAI GARCIA,

Petitioners,

v. IMMIGRATION & NATURALIZATION SERVICE,

Respondent. No. 96-9523 (Nos. A70-792-565; A70-792-566; A70-792-567; A70-792-568; A70-792-569; and A70-792-570) (Petition for Review)

ORDER AND JUDGMENT *

Before PORFILIO and LOGAN, Circuit Judges, and BURRAGE, District Judge. **1 The Illegal Immigration Reform and Immigrant Respon sibility Act of 1996

(IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009, alte rs the availability, scope, and nature of judicial review in INS cases. However, b ecause petitioners’ deportation proceedings commenced before April 1, 1997, and the final decision of the INS issued before October 31, 1996, neither IIRIRA’s pe rmanent “new rules,” nor its interim “transitional rules,” apply to this case. See id. §§ 306(c)(1), 309(a), (c)(1) & (4), as amended Pub. L. No. 104-302, § 2, 110 Stat. 3657, set out in notes to 8 U.S.C. §§ 1101, 1252. In contrast, provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104- 132, 110 Stat. 1214, may apply to INS cases commenced, like this one, before AEDPA’s enactment on April 24, 1996, see Fernandez v. INS , Nos. 95-9550, 96-9504, 1997 WL 240965 (10th Cir. May 12, 1997), though none of these appe ar pertinent to this petition for review, which does not involve deportation for criminal activity addressed by AEDPA. -2- After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument. This appeal arises from the Board of Immigration Ap peals’ (BIA) denial of petitioners’ requests for asylum or withholding of deportation. 1 The BIA affirmed the Immigration Judge’s (IJ) finding that petitione rs’ claims were not credible. Additionally, the BIA found that petitioners were n ot refugees and, therefore, not eligible for asylum, because they had not establish ed a “well-founded fear of persecution on account of race, religion, nationali ty, membership in a particular social group, or political opinion.” 8 U.S.C. § 11 01(a)(42)(A). Accordingly, the BIA denied relief. We affirm.-3-

Petitioners Oscar Garcia and Delia Sosa-Garcia, andtheir five children, are citizens and natives of Guatemala. They entered th e United States on nonimmigrant visas and applied for asylum after the vi sas expired. Their application was denied and, when deportation proceedings began, they requested asylum and withholding of deportation. In Guatemala, Mr. Garc ia had several professions, including teacher and radio journalist, in which he publicly spoke out against drugs. He claims that, as a result of his high-pro file public opposition to drugs, he began to receive threats and received no help fr om local authorities. He testified before the IJ regarding a car accident wh ich he claims was an assassination attempt by a drug gang. He testifiedthat a car carrying three people rammed him head-on, rendering him unconscious for s everal days. His wife stated that she arrived at the scene in time to see the other car being towed, but the police report reflected that Mr. Garcia collide d with a “phantom car.” The threats against him and his family continued. The IJ found petitioners’ claim incredible. He cit ed inconsistencies between Mr. Garcia’s testimony and his interview athis initial application for asylum. As indicated in the notice of intent to de ny asylum, Mr. Garcia originally told the asylum officer that he did not believe the car accident was premeditated, but that he feared retaliation by the drug gang in an attempt to stop him from implicating the gangsters in the accident. In addi tion, the IJ found the whole-4-

assassination theory implausible. The BIA agreed w ith the IJ’s adverse credibility determination, and the record contains substantial evidence to support the BIA’s conclusion, see Refahiyat v. INS , 29 F.3d 553, 556 (10th Cir. 1994). In addition, the BIA affirmed the IJ’s alternative determination that petitioners were not refugees within the meaning of § 1101(a)(42)(A). The BIA found that, even accepting petitioners’ testimony a s credible, they had not established a well-founded fear of persecution unde r the statute. A person might denounce drug use for a variety of reasons, the mos t obvious of which is the adverse health consequences. Cf. INS v. Elias-Zacarias , 502 U.S. 478, 482 (1992). Petitioners have not shown that their fearof retaliation by drug gangs for Mr. Garcia’s public opposition to drugs is on accou nt of his political opinion.
See id. (holding that record failed to show political moti ve by petitioner); Bartesaghi-Lay v. INS , 9 F.3d 819, 822 (10th Cir. 1993) (holding that po ssible persecution by a revolutionary group was the resultof petitioner’s refusal to smuggle drugs, and not because of his political opi nions). Because petitioners cannot satisfy the burden of pr oof to establish statutory eligibility for asylum, neither can they meet the h eightened burden to succeed on-5-

their claim for withholding of deportation. See Castaneda v. INS , 23 F.3d 1576, 1578 (10th Cir. 1994). The petition for review is DENIED. Entered for the Court James K. Logan Circuit Judge