127 F. 3d 1106 - Rodriguez v. Immigration and Naturalization Service

MEMORANDUM*

Rolando Rodriguez, a native and citizen of Nicaragua, petitions for review of the decision of the Board of Immigration Appeals ("BIA") affirming the immigration judge's ("IJ") order denying his application for asylum and withholding of deportation under 8 U.S.C. §§ 1158(a) & 1253(h). We have jurisdiction under 8 U.S.C. § 1105(a), and we deny the petition for review.

Because the BIA adopted the IJ's opinion, we review the IJ's decision for substantial evidence. See Alaelua v. INS, 45 F.3d 1379, 1381 (9th Cir.1995).

Rodriguez contends that the IJ erred in determining that he failed to demonstrate eligibility for asylum based on imputed political opinion. This contention lacks merit.

To show eligibility for asylum based on imputed political opinion, Rodriguez must demonstrate that he has suffered past persecution, or has a well-founded fear of future persecution, on account a political opinion imputed to him by his persecutors. See Sangha v. INS, 103 F.3d 1482, 1489 (9th Cir.1997).

Rodriguez failed to demonstrate that threats and punishment he suffered as a result of deserting from the national army constitute persecution on account of one of the five enumerated grounds. See INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992). Nor did Rodriguez show that his transgression would result in disproportionately severe punishment, see Alonzo v. INS, 915 F.2d 546, 538 (9th Cir.1990), or that his refusal to serve was based on fears of having to participate in inhuman acts, cf. Ramos-Vasquez v. INS, 57 F.3d 857, 863 (9th Cir.1995). Accordingly, substantial evidence supports the IJ's determination that Rodriguez failed to demonstrate eligibility for asylum. See Elias-Zacarias, 502 U.S. at 481.

Because Rodriguez has not established eligibility for asylum. he cannot meet the higher standard of clear probability of future persecution necessary for withholding of deportation. See Ghaly v. INS, 58 F.3d 1425, 1429 (9th Cir.1995).