On September 10, 1990, the IJ denied Lopez-Galarza's application for asylum and withholding of deportation. The IJ expressed some skepticism about the details of her 1981 imprisonment,5 but stated that "assuming arguendo" that the incident was politically motivated and Lopez-Galarza was treated as she alleged, the 1981 incident would constitute past persecution based on political opinion. It nevertheless concluded that the Sandinistas' defeat eliminated any well-founded fear of future persecution. The IJ granted voluntary departure under 8 U.S.C. S 1254(e).
On September 21, 1994, the BIA denied petitioner's request for oral argument, upheld the denial of asylum and withholding of deportation, and upheld the grant of voluntary departure. Lopez-Galarza timely petitioned for review of the BIA's final order.
ANALYSIS
Lopez-Galarza raises two challenges to the BIA's denial of asylum. She argues that her imprisonment, rape, and other physical abuse by Sandinista military officials warrants a grant of asylum on the basis of past persecution alone, pursuant to Matter of Chen, Int. Dec. 3104 (BIA 1989). She also challenges the BIA's determination that she failed to establish a well-founded fear of future persecution in Nicaragua. In the alternative, Lopez-Galarza argues that she satisfied the requirements for withholding of deportation under 8 U.S.C. S 1253(h).
1. Asylum under 8 U.S.C. S 1158(a)
a. Eligibility for Asylum
Where the BIA reviews the IJ's decision de novo, we are limited to reviewing the decision of the BIA. Acewicz v. INS, 984 F.2d 1056, 1059 (9th Cir. 1993). We review for "substantial evidence" the BIA's determination of eligibility for asylum. Ramos-Vasquez v. INS, 57 F.3d 857, 861 (9th Cir. 1995). This means that the BIA's eligibility determination "must be upheld if `supported by reasonable, substantial, and probative evidence on the record considered as a whole.' " Id. (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)).
To be eligible for asylum, petitioner must show that she is unable or unwilling to return to her country because she has suffered past persecution or has a well-founded fear of future persecution "on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. S 1101(a)(42)(A). Once eligibility is established, it is within the Attorney General's discretion to grant asylum. INS v. Cardoza-Fonseca, 480 U.S. 421, 428 n.5 (1987).
Past persecution and a well-founded fear of future persecution provide separate avenues for establishing eligibility for asylum. Kazlauskas v. INS, 46 F.3d 902, 905 (9th Cir. 1995) (citing Acewicz, 984 F.2d at 1061-62 and Berroteran-Melendez v. INS, 955 F.2d 1251, 1255 (9th Cir. 1992) (citing Desir v. Ilchert, 840 F.2d 723, 726 (9th Cir. 1988))).
(i) Well-founded Fear of Future Persecution
A well-founded fear of future persecution has both subjective and objective components. Prasad v. INS, 47 F.3d 336, 338 (9th Cir. 1995) (citation omitted). The subjective component may be satisfied by credible testimony that the applicant genuinely fears persecution. Id. (citing Acewicz, 984 F.2d at 1061). The objective component requires "a showing by credible, direct, and specific evidence of facts supporting a reasonable fear of persecution on the relevant ground. " Prasad, 47 F.3d at 338 (citations omitted).
In considering whether Lopez-Galarza was eligible for asylum, the BIA first found no basis in the record to support a "well-founded fear of persecution," 8 U.S.C.S 1101(a) (42)(A). It based this conclusion in large part on the BHRHA's revised opinion, which reported that the Sandinistas no longer governed Nicaragua and that arrests of relatives of former Somoza National Guard members had ceased. The BIA concluded that the change in regimes in Nicaragua had reduced or eliminated the objective threat of future persecution.
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