
USCA1 Opinion

	




        June 4, 1996            [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                                                                      ____________________        No. 95-1925                            RODOLFO DE JESUS PINON-MACEO,                                     Petitioner,                                          v.                       IMMIGRATION AND NATURALIZATION SERVICE,                                     Respondent.                                                                                      ____________________                          ON PETITION FOR REVIEW OF AN ORDER                         OF THE BOARD OF IMMIGRATION APPEALS                                                                                      ____________________                                        Before                                Cyr, Boudin and Lynch,                                   Circuit Judges.                                   ______________                                                                                      ____________________             Herbert P. Sklar for petitioner.             ________________             James  A.  Hunolt, Attorney,  Office  of  Immigration Litigation,             _________________        Civil  Division, Department  of  Justice, with  whom Frank  W. Hunger,                                                             ________________        Assistant  Attorney  General, Civil  Division,  and  David V.  Bernal,                                                             ________________        Senior  Litigation   Counsel,  Civil  Division,  were   on  brief  for        respondent.                                                                                      ____________________                                                                                      ____________________                    Per Curiam.  Rodolfo de Jesus Pinon-Maceo petitions for                    Per Curiam                    __________          review  of a  discretionary  Board of  Immigration Appeals  order          denying his motion to reopen an earlier deportation hearing.  The          motion to reopen indicated no abuse of discretion by the BIA, see                                                                        ___          INS v. Doherty, 502 U.S. 314, 323 (1992), but simply attempted to          ___    _______          relitigate the merits of  the original claim for asylum,  but see                                                                    ___ ___          Caruncho v.  INS, 68 F.3d 356, 359-62 (9th Cir. 1995), viz., that          ________     ___                                       ____          deportation  to  Cuba  would   subject  him  to  prosecution  and          imprisonment for  having jumped  a Cuban  vessel while  docked in          Canada.   The  BIA  upheld  an  Immigration Judge's  ruling  that          petitioner  was   ineligible,  either  for  asylum   or  for  the          withholding  of  deportation,  since  his  asserted  fears   were          predicated on possible prosecution, not persecution.                      A motion to reopen seeks permissive relief,  see id. at                                                                 ___ __          361,  which  may  be  denied  solely  because  it  introduces  no          "'previously unavailable, material evidence . . . .'"  Id. at 360                                                                 ___          (quoting Doherty,  502 U.S. at 323),  as was the case  here.  The                   _______          motion  to reopen  alleged that  petitioner would  be exposed  to          imprisonment  or death for having  jumped ship.   It claimed that          the situation had been worsened by a more restrictive immigration          policy  announced on  May  2, 1995,  pertaining  to future  Cuban          "rafters."    The BIA  concluded  that petitioner  had  failed to          demonstrate  that the  motion  to reopen  was  based on  any  new          evidence,  the immigration  policy on  "rafters" notwithstanding.          We agree.                                            2                    Petitioner  has not  shown,  either before  the BIA  or          here, that the new immigration policy was material to his request                                                    ________          for  asylum  or  withholding  deportation.    At  most,  the  new          immigration  policy allegedly  exacerbated petitioner's  fears of          "prosecution" for having jumped ship  in violation of Cuban  law,          as  distinguished from  a legitimate  fear of "persecution."   As          there was  no error in the  BIA determination that  the claim for          asylum was unfounded because an "alien's prosecution and possible          imprisonment for civil or criminal  violations pursuant to law do          not constitute  persecution," there  can  have been  no abuse  of          discretion.  See id.                       ___ __                    The petition for review is denied.                    The petition for review is denied.                    _________________________________                                          3
