United States Court of Appeals
For the First Circuit
No. 01-1741
RICARDO F. VELÁSQUEZ,
SUSANA D. GRANADOS-URIZAR,
ELUVIA R. GRANADOS-URIZAR,
Petitioners,
v.
JOHN ASHCROFT, ATTORNEY GENERAL OF
THE UNITED STATES,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella and Lipez, Circuit Judges,
and McAuliffe,* District Judge.
Randy Olen, for petitioners.
Anthony P. Nicastro, Attorney, Office of Immigration
Litigation, Civil Division, with whom Kurt B. Larson, Attorney,
Robert D. McCallum, Jr., Assistant Attorney General, Civil
Division, and David V. Bernal, Assistant Director, Office of the
Immigration Litigation, were on brief for respondent.
August 29, 2003
*
Of the District of New Hampshire, sitting by designation.
TORRUELLA, Circuit Judge. Ricardo Velásquez, Susana D.
Granados-Urizar, and Eluvia Rosalina Granados-Urizar (collectively
"petitioners") seek review of a decision by the Board of
Immigration Appeals ("Board" or "BIA") denying their application
for asylum and withholding of deportation. We affirm the Board's
decision.
I.
Petitioners, a father and his two adult daughters, are
natives and citizens of Guatemala.1 All three entered the United
States without inspection in September 1989. The Immigration and
Naturalization Service ("INS") charged petitioners with being
removable as aliens present in the United States without being
admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). On
August 18, 1999, petitioners, represented by counsel, appeared
before an Immigration Judge ("IJ"), conceded removability, and
indicated that they would seek relief from removal in the form of
asylum and withholding of deportation.2 The IJ found petitioners
removable as charged and denied their applications for relief. The
1
The three applications for asylum were consolidated, and on
June 18, 2001, this Court granted petitioners' request to similarly
consolidate their cases before us.
2
We review only the denial of asylum claim. Since the standard
for withholding deportation is more stringent than that for asylum,
"a petitioner unable to satisfy the asylum standard fails, a
fortiori, to satisfy the former." Álvarez-Flores v. INS, 909 F.2d
1, 4 (1st Cir. 1990); accord Aguilar-Solís v. INS, 168 F.3d 565,
569 n.3 (1st Cir. 1999) (noting that "withholding of deportation
requires a clear probability of persecution" (citations omitted)).
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Board, noting the changed conditions in Guatemala and petitioners'
failure to prove persecution, affirmed the IJ's decision and
dismissed the appeal.
The evidence presented before the IJ and adopted by the
Board confirms that petitioners were witnesses to various acts of
guerrilla violence that plagued Guatemala in the early 1980s.
Specifically, Velásquez's sister and brother-in-law were killed by
guerrillas in September 1981, after refusing to give them money and
assistance. Following these murders, Velásquez, himself, received
two death threats, allegedly because his family was wealthier than
average Guatemalans. After receiving the threats, petitioners fled
to another part of Guatemala, and, subsequently, their home and
store were burned down.
Petitioners spent the next eight years in Guatemala
without incident. During this time, Velásquez served in the Army's
Civilian Defense Patrols for approximately three years, fighting
the guerrillas. Following his stint in the army, Velásquez moved
his family to another area of Guatemala where the guerrillas were
not as active. During these years, Velásquez worked in the fields
and sent his children to school without incident.
In 1989, petitioners came to the United States, leaving
several family members behind, including Velásquez's longtime
companion, two of his children, and Granados-Urizar's daughter.
Though petitioners eventually lost contact with these relatives,
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the record indicates that no harm has befallen them. In fact, it
appears that Velásquez's companion is gainfully and safely employed
in Guatemala.
The IJ denied the applications for asylum, concluding
that petitioners did not meet their burden of establishing either
past persecution or a well-founded fear of future persecution. The
IJ did, however, grant petitioners voluntary departure. The Board
dismissed petitioners' appeal, while re-instating the grant of
voluntary departure. This appeal followed.
II.
It is well settled that findings of fact by the Board are
to be reviewed under the deferential "substantial evidence"
standard. Álvarez-Flores, 909 F.2d at 3. The Board's
determination that petitioners were not eligible for asylum "must
be upheld if 'supported by reasonable, substantial and probative
evidence on the record considered as a whole.'" INS v. Elías-
Zacharias, 502 U.S. 478, 481 (1992) (quoting 8 U.S.C. § 1105(A)
(4)). We will not reverse simply because we disagree with the
Board's evaluation of the facts. Álvarez-Flores, 909 F.2d at 3.
Indeed, the Board's decision can be reversed only if the evidence
presented by petitioners was so conclusive that any reasonable
adjudicator would be compelled to conclude the contrary. 8 U.S.C.
§ 1252(b)(4) (B) (2000); see also Elías-Zacharias, 502 U.S. at 481.
The evidence presented by petitioners falls short of that mark.
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In the initial proceedings, the alien bears the burden of
establishing eligibility for asylum by proving either past
persecution or a well-founded fear of persecution. 8 C.F.R.
§ 208.13(b).
A. Past Persecution
The IJ determined that petitioners could not succeed in
their claim of past persecution. To prove past persecution, an
applicant must demonstrate that he or she has suffered persecution
on account of one of the five enumerated grounds: race, religion,
nationality, membership in a particular social group, or political
opinion. Id. § 208.13(b)(1). The IJ found, and the Board agreed,
that petitioners failed to provide conclusive evidence that they
were targeted by the guerrillas based on any of the protected
grounds.
Petitioners bear the burden of establishing that they
fall within one of five enumerated grounds. 8 C.F.R. § 208.13(a);
see also Álvarez-Flores, 909 F.2d at 3 ("Petitioner bears the
burden of proving eligibility for asylum. . . ."). In an attempt
to satisfy this burden, petitioners contend that their social
status and political beliefs "singled them out" as targets for the
guerrillas. The IJ rejected that position and, instead, relied
upon evidence showing that thousands of politically neutral
Guatemalans met with the same fate, concluding that petitioners
were not persecuted on an individual basis. Indeed, the record as
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a whole bespeaks of general harm attributable to the widespread
civil strife that plagued Guatemala during that time. Congress,
however, has not "generally opened the doors to those merely
fleeing from civil war." Velásquez-Valencia v. INS, 244 F.3d 48,
51 (1st Cir. 2001). Furthermore, the IJ looked at the fact that
petitioners spent eight years in Guatemala after the alleged
persecution. There is no indication that petitioners changed their
political opinion or their social class during that time; in fact,
petitioners were able to live and work without interference from
the guerrillas. The evidence clearly supports the IJ's finding
that petitioners suffered no more than thousands of other
Guatemalans during this period of civil unrest. Consequently, the
evidence does not compel us to reverse the Board's finding that
petitioners were not targeted on any individual basis, much less on
one of the five enumerated grounds.
B. Well-Founded Fear of Persecution
The IJ similarly found that petitioners failed to
establish a well-founded fear of persecution. Petitioners have two
routes by which they can establish a well-founded fear of
persecution: (1) they can offer specific proof, Álvarez-Flores, 909
F.2d at 5, or (2) they can claim the benefit of a regulatory
presumption based on proof of past persecution, 8 C.F.R. § 208.13
(b)(1). As discussed above, petitioners have failed to establish
past persecution. Therefore, because they are not entitled to a
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presumption, they must point to specific proof to justify a well-
founded fear of persecution. Nelson v. INS, 232 F.3d 258, 264 (1st
Cir. 2000).
To demonstrate a well-founded fear of future persecution
by direct evidence, a petitioner must satisfy both an objective and
subjective test. Álvarez-Flores, 909 F.2d at 5. Under the
subjective requirement, a petitioner must prove that his fear is
genuine, id., while the objective component requires showing by
"credible, direct and specific evidence" that this fear is
reasonable. Ravindran v. INS, 976 F.2d 754, 758 (1st Cir. 1992)
(internal quotations and citation omitted). Generally, "the BIA
requires that an applicant show that a reasonable person in his
circumstances would fear persecution." Álvarez-Flores, 909 F.2d at
3 (internal quotations and citation omitted).
Petitioners only point to evidence of past acts. The IJ
found that there was no evidence on the record to indicate that
petitioners would suffer any harm should they be returned to their
homeland. Rather, the evidence indicates that petitioners could
live peacefully and prosperously in Guatemala. As noted by the IJ
and the Board, numerous relatives of the petitioners have lived,
undisturbed, in Guatemala for the past twenty years. See Aguilar-
Solís, 168 F.3d at 573 ("[T]he fact that close relatives continue
to live peacefully in the alien's homeland undercuts the alien's
claim that persecution awaits his return."). Furthermore,
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petitioners presented no evidence that the guerrillas sought
retribution against any of the remaining family members.
Therefore, it is clear that petitioners have not demonstrated by
"credible, direct and specific evidence" a reasonable fear of
persecution. As such, substantial evidence supports the IJ's
finding that petitioners will not be targets upon their return to
Guatemala.
In sum, we see no need to disturb the findings below.
The IJ and the Board, after carefully considering a great deal of
evidence, concluded that petitioners had not met their burden in
establishing past persecution or a well-founded fear of future
persecution. Since there exists no compelling evidence to the
contrary, we defer to this conclusion.
III.
Petitioners also ask that, in the alternative, we grant
them humanitarian asylum. However, because this Court lacks
jurisdiction to review claims raised for the first time in a
petition for review, we cannot decide whether they qualify for such
relief. Mendes v. INS, 197 F.3d 6, 12 (1st Cir. 1999); see also
Bernal v. Vallejo, 195 F.3d 56, 64 (1st Cir. 1999).
IV.
Finally, the government's argument that this court lacks
jurisdiction to reinstate voluntary departure fails. See Khalil v.
Ashcroft, 337 F.3d 50, 56 (1st Cir. 2003) (reinstating voluntary
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departure under permanent rules of the Illegal Immigration Reform
and Immigrant Responsibility Act of 1996 ("IIRIRA")). We therefore
reinstate the voluntary departure period granted by the Board.
V.
For the reasons discussed above, we affirm the order of
the Board of Immigration Appeals, and the voluntary departure
period is reinstated.
"Concurrence and Dissenting follows"
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McAuliffe, District Judge (Concurring in part and
Dissenting in part). Except in one respect, I am in complete
agreement with the panel opinion. Because I believe an amendment
to the Immigration and Nationality Act made by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, and
codified at 8 U.S.C. § 1252(a)(2)(B)(i), probably eliminated this
court’s jurisdiction to reinstate a lapsed period of voluntary
departure in conjunction with our adjudication of a petition for
review,4 and because I do not believe we are bound by any contrary
panel precedent in this circuit, I would not simply reinstate the
lapsed period of voluntary departure.
Since we granted Respondent's petition for rehearing in
this case, and because what precedent exists in this circuit
neither addresses nor resolves the specific issue raised by
Respondent in that petition, I would address and resolve on its
merits the question of this court’s jurisdiction to reinstate a
lapsed period of voluntary departure.
4
See, e.g., Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166 (9th Cir.
2003). See also 8 U.S.C. § 1229c(f) (providing that no court shall
have jurisdiction to "order a stay of an alien’s removal pending
consideration of any claim with respect to voluntary departure"
and, at least implicitly, suggesting that no court shall have
jurisdiction to reinstate a lapsed period of voluntary departure);
8 C.F.R. §§ 240.26(f) and (h) (discussing the authority to grant
extensions of time within which to voluntarily depart and the
authority to reinstate a lapsed period of voluntary departure).
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