914 F. 2d 262 - Hernandez-Hernandez v. US Immigration and Naturalization Service

No. 88-7405.

United States Court of Appeals, Ninth Circuit.

Before FARRIS and DAVID R. THOMPSON, Circuit Judges, and C.A. MUECKE,** Senior District Judge.

MEMORANDUM***

Gloria Olivo De Hernandez appeals pro se and on behalf of her son, Pedro Antonio Hernandez-Olivo, the decision of the Board of Immigration appeals denying her request to withhold deportation.1 We affirm.

Deportation must be withheld pursuant to 8 U.S.C. Sec. 1253(h) if the alien demonstrates that "it is more likely than not that the alien would be subject to persecution" in the country to which he would be deported. Immigration and Nat. Serv. v. Cardoza-Fonseca, 480 U.S. 421, 423 (1987). An alien may also avoid deportation by a grant of political asylum pursuant to 8 U.S.C. Sec. 1158(a). Political asylum is issued at the discretion of the Attorney General and upon a showing by the alien of a "well-founded fear of persecution." 8 U.S.C. Sec. 1101(a)(42). Under either form of relief, the alien must show that the persecution was on account of her "race, religion, nationality, membership in a particular social group, or political opinion" and that the persecution was personal to the alien, not merely to her class. See Estrada v. INS, 775 F.2d 1018, 1020-21 (9th Cir.1985).

We review the factual findings of the BIA under the substantial evidence standard. See id.; Rodriguez-Rivera v. United States Dept. of Imm. and Nat., 848 F.2d 998, 1001 (9th Cir.1988). Our review is limited to the evidence presented in the record and before the BIA. 8 U.S.C. Sec. 1105a(a)(4).

Petitioners brief raises allegations of political persecution wholly independent of the testimony in the record. Petitioner De Hernandez testified that neither she nor her family had ever been threatened. Although there was substantial evidence that petitioners had witnessed violence in El Salvador, there was no evidence that the violence was aimed at petitioners or was in any way related to petitioners' "race, religion, nationality, membership in a particular social group, or political opinion." The unrelated allegations of political persecution raised for the first time in this appeal are not part of the administrative record and may not be considered. The testimony and evidence in the record does not support petitioners claim to withhold deportation or obtain political asylum. Nothing herein precludes application for reconsideration before the BIA if petitioner can make a proper case. See 8 C.F.R. Secs. 3.2, 3.8 (1990); Samimi v. INS, 714 F.2d 992 (9th Cir.1983).

PETITION DENIED.