UNPUBLISHED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.

_________________________________________________________________

Petition denied by unpublished per curiam opinion.

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COUNSEL

Ronald D. Richey, Jaime W. Aparisi, Rockville, Maryland, for Peti-
tioner. Frank W. Hunger, Assistant Attorney General, Stephen Funk,
Senior Litigation Counsel, Lorri L. Shealy, Office of Immigration Lit-
igation, UNITED STATES DEPARTMENT OF JUSTICE, Washing-
ton, D.C., for Respondent.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Petitioner Jose Amaya seeks review of an order of the Board of
Immigration Appeals (Board) affirming the decision of the immigra-
tion 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 Immigra-
tion and Nationalization Service instituted deportation proceedings in
1996. Amaya conceded deportability but applied for asylum and with-
holding 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 reli-
gious 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 per-
secution 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 con-
cludes the alien is a refugee as defined by the Act. A refugee is any-
one 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 polit-
ical 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 dif-
ferent 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, reli-
gion, nationality, membership in a social group, or political opinion.
8 U.S.C.A. § 1253(h) (West Supp. 1996).1 The alien must demon-
strate 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
_________________________________________________________________
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 amend-
ments to the Act do not apply.

                    3
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 proba-
tive 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 req-
uisite 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 perse-
cuted, or has a well-founded fear of persecution, because of that opin-
ion. Id. at 483. Where the alien seeks to overturn the decision of the
Board, the statutory scheme requires him to provide compelling evi-
dence that the alleged persecutors are motivated by his political opin-
ion. 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 partici-
pated in or refused to participate in the activities of either the guerril-
las 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 sev-
eral times, with no adverse consequences to him or his family. Amaya
has not borne the burden of showing that the guerrillas or the govern-
ment troops were motivated to persecute him because of any pro-
fessed 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
_________________________________________________________________
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.

                     4
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 argu-
ment because the facts and legal contentions are adequately presented
in the materials before the court and argument would not aid the deci-
sional process.

PETITION DENIED

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