Mercedes Vilorio-Lopez v. Immigration and Naturalization Service

dissenting:

I respectfully dissent.

I do not dispute that withholding of deportation is not discretionary. If the alien meets the statutory test, 8 U.S.C. § 1253 (h), the Attorney General cannot deport the alien. Turcios v. INS, 821 F.2d 1396, 1398 (9th Cir.1987); Bolanos-Hernandez v. INS, 767 F.2d 1277, 1281 (9th Cir.1985).

However, the circumstances of petitioner’s case come nowhere near those of the aliens in those two cases. Unlike the alien in Turcios , petitioner was never arrested— nor was he confined, beaten or tortured like Turcios was. Unlike the alien in Bolanos-Hernandez , petitioner was not threatened to be killed by the guerrillas if he refused to join their ranks. In fact, the one or two times (depending on what is believed in petitioner’s testimony) that *1143 guerrillas came to his parents’ home to recruit him, petitioner was not even home. There was no confrontation between petitioner and guerrillas so there was no threat.

Petitioner has failed to establish that he has been, or will be, singled out for persecution. Zepeda-Melendez v. INS, 741 F.2d 285, 290 (9th Cir.1984); Cardoza-Fonseca v. INS, 767 F.2d 1448, 1453 (9th Cir.1985), aff'd 480 U.S. 421 , 107…

Mercedes Vilorio-Lopez petitions for review of the Board of Immigration Appeals’ dismissal of his request for asylum and withholding of deportation pursuant to 8 U.S.C. §§ 1158 (a) and 1253(h).

Vilorio-Lopez is a native of El Salvador who entered the United States on May 23, 1985. The next day, the INS issued an order to show cause why he should not be deported. On June 3, 1985, he requested political refuge in the United States. At his deportation hearing in July, he offered his own testimony, and that of his cousin, in support of his application for asylum and withholding of deportation. The petitioner and his cousin each testified that both a right-wing death squad and left-wing guerrillas had threatened Vilorio-Lopez. The petitioner testified that he is a supporter of the Duarte government and was a member of the Salvadoran Army for one month. On the occasion that twenty armed guerrillas arrived at his house looking for him by name, his cousin of approximately the same age was present but was not sought, threatened, or harmed.

There were inconsistencies in the testimony of petitioner and his cousin concerning the date of the death squad incident, the length of time the men…

852 F.2d 1137 Mercedes VILORIO-LOPEZ, Petitioner, v. IMMIGRATION AND NATURALIZATION SERVICE, Respondent. No. 86-7547. United States Court of Appeals, Ninth Circuit. Argued and Submitted Nov. 9, 1987. Decided July 26, 1988. As Amended Oct. 3, 1988. Molly McClure, Heller, Ehrman, White & McAuliffe, San Francisco, Cal., for petitioner. Eileen A. Carty, Office of Immigration Litigation, Civil Div., Washington, D.C., for respondent. Petition to Review a Decision of the Immigration and Naturalization Service. Before SCHROEDER, PREGERSON and BRUNETTI, Circuit Judges. SCHROEDER, Circuit Judge: 1 Mercedes Vilorio-Lopez petitions for review of the Board of Immigration Appeals' dismissal of his request for asylum and withholding of deportation pursuant to 8 U.S.C. Secs. 1158 (a) and 1253(h). 2 Vilorio-Lopez is a native of El Salvador who entered the United States on May 23, 1985. The next day, the INS issued an order to show cause why he should not be deported. On June 3, 1985, he requested political refuge in the United States. At his deportation hearing in July, he offered his own testimony, and that of his cousin, in support of his application for asylum and withholding of…