Petitioner, Elisio Jacinto Chavarria, seeks review of his final order of deportation. We affirm the Board of Immigration Appeals’s dismissal of Chavarria’s appeal from a denial of his application for asylum under Section 208 of the Immigration and Nationality Act of 1952, 8 U.S.C.A. § 1158.
Chavarria is a native and citizen of Niсaragua. He arrived in the United States on or about May 2, 1980, as a non-immigrant visitor for pleasure. He was authorized to stay until May 10, 1980, but remained beyond that time without authorization. At the deportation hearing, Chavarria admitted the allegations contained in the Order to Show Cause, and was thus deportable under Seсtion 241(a)(2) of the Immigration and Nationality Act, 8 U.S.C.A. § 1251(a)(2). 1 Chavarria filed an application with the immigration judge for asylum under Section 208 of the Act, 8 U.S.C.A. § 1158. The application was referred to the Department of State as required by 8 C.F.R. § 208.10(b). 2
*668 Pursuant to 8 C.F.R. § 208.3(b), the immigration judge also considered the asylum request as a request for withholding deportation under Section 243(h) of the Act, 8 U.S.C.A. § 1253(h). 3 Chavarria’s application and the letter from the Department of State were admitted into evidence at the deportation hearing without objection.
Evidence at the hearing established that Chavarria had worked as an accountant for Plasma Phеresis, a private firm in Nicaragua which dealt with blood plasma, for about eighteen months from 1976 to 1978. During the period of Chavarria’s employment, the editor of a Nicaraguan newspaper engaged in a “political campaign” against Plasma Pheresis. In response, the company filed a libel suit аgainst the newspaper and its editor, Chamaro. Chamaro was assassinated on January 10,1978, while the suit was pending. The following day, a mob burned down the office of Plasma Pheresis.
Chavarria remained in Nicaragua for two years following this incident, during which time he lived with his family and studied accounting. According to Chavarria, Sаndi-nistas came to his house to interrogate him because he had worked for Plasma Pheresis and was anti-Communist. Chavarria testified that he was threatened because of his former employment and would be sentenced to thirty years’ imprisonment if returned to Nicaragua. Chavarria’s parents, brothers, and sisters rеmain and work in Nicaragua. He did not know of any harm to his relatives.
Fausto Alvarez, the former comptroller of Plasma Pheresis, testified that there was a violent reaction against employees of the company after the assassination of the newspaper editor. According to Alvarez, еmployees in management positions were harassed by the Sandinistas; the company’s public relations man was shot and killed, and other managers were shot or arrested. Alvarez testified that Chavarria had held a management position with Plasma Pheresis and would be harassed or imprisoned if he returned to Nicaragua.
Another witness, the Director for the Center of Nicaraguan Refugees, testified that an official of the Nicaraguan government once stated that Nicaraguans applying for asylum in the United States would be imprisoned. He stated that his organization had processed approximately 4,500 applicants for asylum. He was aware that Nicaraguans have returned to that country, but did not know what happened to those Nicaraguans who returned after the civil war.
The immigration judge concluded that, although Chavarria justifiably felt apprehensive about returning to Nicaragua, he had failed to establish a reasonable fear of persecution if returned to Nicaragua. Consequently, Chavarria’s application was denied. The judge, however, did grant Cha-varria the privilege of voluntary departure. The Board of Immigration Appeals affirmed the decision of the immigration judge and dismissed the аppeal.
We must decide whether the Board of Immigration Appeals properly dismissed Chavarria’s appeal. Chavarria argues that the immigration judge improperly placed heavy reliance upon an outdated, boilerplate State Department advisory opinion. *669 Further, he argues that the Board of Immigration Appeals abused its discretion by not addressing his contention, raised in his Notice of Appeal, that the State Department’s opinion was faulty. In response, the Immigration and Naturalization Service (INS) asserts that the advisory opinion was admitted at the immigration hearing without objection pursuant to 8 C.F.R. § 208.10. Cha-varria has produced no evidence of a change in the foreign policy views of the State Department toward Nicaragua. Moreover, the decisions of the immigration judge and the Board of Immigration Appeals were based primarily on a finding that Chavar-ria’s evidence was insufficient to establish a reasonable fear of persecution, rather than upon the advisory opinion of the State Department.
In pertinent part, 8 C.F.R. § 208.10(b) provides:
When the asylum request is filed, the hearing shall be adjourned for the purpose of requesting an advisory opinion from BHRHA [the Bureau of Human Rights and Humanitarian Affairs of the Department of State].... The BHRHA opinion, unless classified under Executive Order No. 12065, shall be made part of the record, and the applicant given an opportunity to inspect, explain, and rebut it.
Thus, unless classified under an executive order, section 208.10(b) requires that an advisory opinion be made part of thе record. In this case, Chavarria’s counsel was furnished a copy of the opinion and stated that he had no objection to its admission into the record. On appeal to the Board of Immigration Appeals and in the present petition before this court, Chavarria asserts that the advisory opinion was outdated concerning the Reagan administration’s views on Nicaragua at the time it was issued.
Pursuant to 8 C.F.R. §§ 3.2
4
and 3.8, Chavarria may file a motion to reopen before the Board in order to present new evidence, along with an explanation regarding why the new evidence could not have been presented earlier. It is well established that the regulations place the burden of proof upon the asylum applicant. 8 C.F.R. § 242.17(c);
Haitian Refugee Center v. Smith,
Second, Chavarria argues that he established a well-founded feаr of persecution by a preponderance of the evidence. Therefore, the decision of the immigration judge denying his application for asylum was an unlawful abuse of administrative discretion. In response, the INS asserts that Chavarria failed to establish that he would likely be singled out for persecution.
At the deportation hearing, Chavarria admitted the allegations contained in the Or *670 der to Show Cause, and therefore, conceded deportability. Thus, the only question addressed was whether Chavarria was entitled to asylum or withholding of deportation pursuant to 8 U.S.C.A. § 1158 or § 1253(h)(1).
The statute was significantly amended in 1980. Wе must therefore determine what the appropriate standard of review is. Pri- or to the 1980 amendment, withholding of deportation was at the discretion of the Attorney General.
5
McMullen v. Immigration and Naturalization Service,
Having adopted the “substantial evidence” standard of review, we must now determine whether the Board of Immigration Appeals prоperly dismissed Chavarria’s appeal. Review of the record indicates that the dismissal was proper.
Under the regulation applicable to temporary withholdings of deportation, it is clear that Chavarria had the burden of establishing that he would be subject to persecution on account оf race, religion, or political opinion as claimed. 8 C.F.R. § 242.17(c);
Haitian Refugee Center v. Smith,
Notes
. Title 8 U.S.C.A. § 1251 provides, in pertinent part:
Any alien in the United States (including an alien crewman) shall, upon the order of the Attоrney General, be deported who—
(2) entered the United States without inspection or at any time or place other than as designated by the Attorney General or is in the United States in violation of this chapter or in violation of any other law of the United States.
. The body of the State Department’s letter, dated April 17, 1981, provided:
This is in reply to your recent letter concerning the applicant’s request for asylum in the United States.
Upon careful review of the information submitted, it is our view that the applicant has failed to establish a well-founded fear of being persecuted upon return to Nicaragua within the meaning of the United National Protocol Relating to the Status of Refugees. In our view, the country-wide civil war and the accompanying random violence which were mainly responsible for the initial blanket grant of deferred departure for Nicaraguan nationals no longer pose the problem they once did regarding the safe return of *668 Nicaraguans. Most of the Nicaraguans who fled into neighboring countries as a result of the hostilities have now returned. We have also noted recent improvements in the political climate and respect for human rights in Nicaragua.
Should the applicant submit any additional information regarding his/her request which you believe requires further consideration, we will be glad to review such additional information, or should there be specific areas of concern on which you would like us to comment, please let us know.
I hope this information will be helpful in making a decisiоn on the applicant’s request for asylum.
. Title 8 C.F.R. § 208.3 states, in pertinent part: § 208.3 Filing the application.
(b) With the immigration judge. Asylum requests made after the institution of exclusion or deportation proceedings shall be filed in quadruplicate with the docket clerk of the immigration court. Such asylum requests shall also be cоnsidered as requests for withholding exclusion or deportation pursuant to section 243(h) of the Act.
. Title 8 C.F.R. § 3.2 states:
§ 3.2 Reopening or reconsideration.
The Board may on its own motion reopen or reconsider any case in which it has rendered a decision. Reopening or reconsideration of any case in which a decision has been made by the Board, whether requested by the Commissioner or any other duly authorized officer of the Service, or by the party affected by the decision, shall be only upon written motion to the Board. Motions to reopen in deportation proceedings shall not be granted unless it appears to the Board that еvidence sought to be offered is material and was not available and could not have been discovered or presented at the former hearing; nor shall any motion to reopen for the purpose of affording the alien an opportunity to apply for any form of discretionary reliеf be granted if it appears that the alien’s right to apply for such relief was fully explained to him and an opportunity to apply therefor was afforded him at the former hearing unless the relief is sought on the basis of circumstances which have arisen subsequent to the hearing. A motion to reopen or а motion to reconsider shall not be made by or in behalf of a person who is the subject of deportation proceedings subsequent to his departure from the United States. Any departure from the United States of a person who is the subject of deportation proceedings occurring after the mаking of a motion to reopen or a motion to reconsider shall constitute a withdrawal of such motion. For the purpose of this section, any final decision made by the Commissioner prior to the effective date of the Act with respect to any case within the classes of cases enumerated in § 3.1(b)(1), (2), (3), (4), or (5) shall be regarded as a decision of the Board.
. The former section read:
The Attorney General is authorized to withhold deportation of any alien within the United States to any country in which in his opinion the alien would be subject to persecution on account of race, religion, or political opinion and for such period of time as he deems to be necessary for such reason. [Emphasis added.]
Immigration and Nationality Act, Pub.L. No. 82-414, § 243(h), 8 U.S.C.A. § 1253(h), 66 Stat. 212 (1952).
. Chavarria submitted his application for asylum in the United States on or about July 22, 1980. The 1980 amendment to the Act became effective March 17, 1980, and is thus applicable to Chavarria’s application for asylum.
The Refugee Act of 1980, read in relevant part:
(h)(1) The Attorney General shall not deport or return any alien ... to a country if the Attorney General determines that such alien’s life or freedom would be threatened in such country on account of race, religion, nationality, membership in a particular social group, or political оpinion.
(2) Paragraph (1) shall not apply to any alien if the Attorney General determines that—
(A) the alien ordered, incited, assisted, or otherwise participated in the persecution of any person on account of race, religion, nationality, membership in a particular social group, or political opinion;
(B) the alien, having been convicted by a final judgment of particularly serious crime, constitutes a danger to the community of the United States;
(C) there are serious reasons for considering that the alien has committed a serious nonpolitical crime outside the United States prior to the arrival of the alien in the United States; or
(D) there are reasonable grounds for regarding the alien as a danger to the security of the United States.
Refugee Act of 1980, Section 243(h), 8 U.S.C.A. § 1253(h).