United States Court of Appeals
For the First Circuit
No. 02-1548
EDBIA MARITZA OLIVA-MURALLES,
Petitioner,
v.
JOHN ASHCROFT, Attorney General,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Lynch, Circuit Judge,
Coffin, Senior Circuit Judge, and
Porfilio,* Senior Circuit Judge.
Stephen A. Lagana for appellant.
Robert D. McCallum, Jr., Assistant Attorney General, Terri J.
Scadron, Assistant Director, Anthony W. Norwood, Attorney, Office
of Immigration Litigation, for appellee.
May 6, 2003
*
Of the Tenth Circuit, sitting by designation.
LYNCH, Circuit Judge. Petitioner Edbia Oliva-Muralles
("Oliva-Muralles"), now 30 years of age, and her mother Maria
Oliva-Muralles are Guatemalan citizens who entered the country
illegally and were served with a deportation order to show cause on
December 4, 1996. Both women conceded deportability but asserted
they were eligible for political asylum. The Immigration Judge
("IJ"), in April 1998, rejected each of their claims for asylum,
finding:
Essentially, what I have before me is two decent women,
both citizens of Guatemala who fear returning to their
country because of the pervasive criminality which
exists. While their fear of returning is certainly
reasonable it is not on account of one of the five
statutory grounds [for asylum]. Accordingly, I find that
they have failed to state a claim upon which relief may
be granted. I find neither past persecution nor a well-
founded fear of persecution.
On April 10, 2002, the IJ's decision was upheld by the Board of
Immigration Appeals ("BIA") and Edbia Oliva-Muralles was permitted
to depart voluntarily.
Edbia Oliva-Muralles petitioned this court for review.
This court has jurisdiction under the transitional rules of the
Illegal Immigration Reform and Immigrant Responsibility Act, Pub.
L. No. 104-208, Div. C, § 309(c)(4), 110 Stat. 3009-546, at 3009-
626 (Sept. 30, 1996). The Attorney General has been substituted
for the INS as respondent with the implementation of the Homeland
Security Act of 2002, Pub. L. No. 107-296, §§ 441, 471, 116 Stat.
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2135, at 2192, 2205 (Nov. 25, 2002). See 8 U.S.C. § 1252(b)(3)(A)
(2000).
Oliva-Muralles makes two arguments: 1) that the BIA
erroneously concluded that she was not eligible for protection
under the United Nations Convention Against Torture and Other,
Cruel, Inhuman or Degrading Treatment or Punishment ("CAT"), Dec.
10, 1984, G.A. Res. 39/46, Annex, 39 U.N. GAOR Supp. No. 51, at
197, U.N. Doc. A/RES/39/708 (1984), 23 I.L.M. 1027 (1984); and 2)
that the BIA abused its discretion when it denied her appeal from
the IJ's adverse ruling on her asylum claim.
1. The CAT Claim
The CAT claim may not be heard by this court because
Oliva-Muralles has never presented such a claim to the agency.
Issues usually must first be presented to the BIA. See Bernal-
Vallejo v. INS, 195 F.3d 56, 64 (1st Cir. 1999); Ravindran v. INS,
976 F.2d 754, 761 (1st Cir. 1992).
The confusion stems from the fact that Edbia Oliva-
Muralles's mother, Maria, did file a motion with the BIA to remand
proceedings in order to pursue a claim under Article 3 of the CAT.
The BIA denied that motion because Maria had not offered evidence
to establish a prima facie case for protection under the CAT, as
she must do. See Abassi v. INS, 305 F.3d 1028, 1030 (9th Cir.
2002); 8 C.F.R. § 208.18(b)(2)(ii) (2002). The CAT's implementing
regulations place the burden of proof on the alien to establish it
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is more likely than not that she would be tortured if removed to
the proposed country of removal. See 8 C.F.R. § 208.16(c)(2).
It is the BIA's denial of her mother's motion to remand
which is appended to Oliva-Muralles's brief. Edbia Oliva-Muralles
is not a minor and is not covered by her mother's motion. The
respondent says Oliva-Muralles did not file her own such motion
(there is none in the certified record), and the resulting silence
from Oliva-Muralles's counsel is telling.
We dismiss the claim.
2. Denial of Asylum
The second argument challenges the denial of asylum.
There is no claim that the IJ or the BIA committed an error of law,
or disregarded material evidence or violated procedures; the only
claim is that the wrong conclusion was drawn from the evidence.
This court, then, can remand to the agency only where the evidence
is so compelling that no reasonable fact-finder could fail to reach
the contrary conclusion. INS v. Elias-Zacaria, 502 U.S. 478, 481
n.1 (1992); Albathani v. INS, 318 F.3d 365, 372 (1st Cir. 2003).
Oliva-Muralles's asylum application states that she fears
her "life will be in grave danger for neither supporting the
guerrillas nor the government." She said a family friend who had
lived with them had been abducted by masked men and never been seen
again. Oliva-Muralles feared for her life because of her family's
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known association with him; she believes he was abducted because he
did not openly support the rebels.
The IJ conducted a hearing on April 14, 1998 as to both
Oliva-Muralles's and her mother's asylum applications. Oliva-
Muralles testified that she was robbed of her paycheck when
gangsters came into the supermarket where she worked. Her mother
testified to two occasions when unknown men entered her house,
demanded money, and assaulted her and her family. Both said they
were afraid to return to Guatemala because of the high incidence of
criminality and violence there; both conceded they were not
politically active and that they were never arrested, detained,
interrogated or persecuted by either the government or guerrillas.
Oliva-Muralles argues that all she had to show was that
persecution is a "reasonable possibility." INS v. Cardoza-Fonseca,
480 U.S. 421, 440 (1987). But on appeal to this court she must
show that the evidence compels a conclusion in her favor on the
point. That she has not done, based on our review of the record.
We affirm the BIA and dismiss the petition for review.
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