## Facts

- Jairo Jonathan Elias Zacarias, a native and citizen of Guatemala, fled Guatemala in March 1987, entered the United States without inspection in July 1987, and was apprehended.
- In January 1987, two armed, uniformed individuals identifying themselves as guerrillas came to the home where he lived with his parents and attempted to recruit him.
- He refused to join; the guerrillas said they would return, and he feared they would kill him or forcibly conscript him.
- At his immigration hearing, the record included evidence of civil conflict in Guatemala and a State Department advisory letter stating that people fleeing generalized dangers of armed conflict and recruitment were not generally considered refugees under U.S. law.
- After the immigration judge denied asylum and withholding of deportation, Zacarias pursued review before the Board of Immigration Appeals (BIA).
- The BIA initially summarily dismissed his appeal on procedural grounds and denied reconsideration; in denying a later motion to reopen supported by a letter from his father, the BIA excused the procedural lapse and considered the merits.
- The Ninth Circuit reviewed both the original hearing record and the supplemented record including the father’s letter.

## Issues

1. Whether substantial evidence supported the BIA’s determination that Zacarias failed to show a well-founded fear of persecution “on account of” a protected ground, where the feared harm arose from guerrillas seeking to conscript him.
2. Whether the BIA abused its discretion in denying a motion to reopen the withholding-of-deportation claim based on the father’s letter.
3. Whether separate relief was warranted for the BIA’s prior summary dismissal and denial of reconsideration, despite the BIA’s later merits review.

## Decision

- The petition for review was granted in part and denied in part.
- The court held Zacarias established eligibility for asylum on the record made at the initial hearing and granted relief as to asylum eligibility.
- The court upheld the BIA’s denial of reopening with respect to withholding of deportation, concluding the new evidence did not require reopening.
- The court declined to grant separate relief on the earlier procedural rulings because the BIA’s later action cured any error by reaching the merits.

## Legal Principles

- Asylum eligibility requires a showing of a well-founded fear of persecution “on account of” race, religion, nationality, membership in a particular social group, or political opinion.
- A “well-founded fear” standard for asylum is less demanding than the standard governing withholding of deportation.
- In this decision, the court treated guerrilla efforts to coerce recruitment, coupled with threats or feared retaliation upon refusal, as capable of supporting an inference of persecution tied to political opinion for asylum purposes.
- Motions to reopen are discretionary; reopening may be denied where new evidence does not materially alter the applicant’s ability to satisfy the applicable legal standard (including the higher standard for withholding).

## Conclusion

The Ninth Circuit concluded that threats and feared retaliation arising from guerrilla recruitment efforts could establish asylum eligibility on a political-opinion theory, but it affirmed the BIA’s refusal to reopen proceedings to pursue withholding of deportation because the additional evidence did not warrant reconsideration under the higher withholding standard.


Zacarias v. Immigr. & Naturalization Serv., 921 F.2d 844 (9th Cir. 1990)