United States Court of Appeals
For the First Circuit
No. 03-1180
JUAN ALICIO SAMAYOA CABRERA and
BLANCA MARGARITA VELASQUEZ,
Petitioners,
v.
JOHN ASHCROFT,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Selya and Howard, Circuit Judges,
and Singal,* District Judge.
Harvey Kaplan, with whom Ilana Greenstein, Maureen
O'Sullivan, Jeremiah Friedman and Kaplan, O'Sullivan & Friedman,
LLP were on brief, for petitioners.
Isaac R. Campbell, Trial Attorney, Office of Immigration
Litigation, with whom Peter D. Keisler, Assistant Attorney
General, and Papu Sandhu, Senior Litigation Counsel, were on
brief, for respondent.
May 4, 2004
*
Of the District of Maine, sitting by designation.
SINGAL, District Judge. Juan Alicio Samayoa Cabrera and
Blanca Margarita Velasquez, citizens of Guatemala,1applied for
asylum, relief under the Convention Against Torture, and
withholding of removal. The Immigration Judge ("IJ") denied the
applications, and the Board of Immigration Appeals ("BIA")
affirmed without opinion. Mr. Samayoa and Ms. Velasquez petition
for judicial review, claiming that the IJ erred in concluding
that they are ineligible for asylum and withholding of removal.
We affirm the BIA's decision.
I. Background
Juan Alicio Samayoa Cabrera is a fifty-four-year-old man
from the Quiche region of Guatemala. His claims for asylum are
based on his mistreatment at the hands of guerilla fighters in
Guatemala from 1982 to 1992, which he attributes to his political
opinion. Following the events described below, he came to the
United States illegally in 1992, and applied for asylum on
December 27, 1993. His case was finally heard by an Immigration
Judge on February 4, 2002. The oral decision rendered on that
date was not in his favor, and he appealed to the BIA. The BIA
1
Ms. Velasquez, Mr. Samayoa’s wife, is included in the asylum
petition based solely on Mr. Samayoa’s experiences. While this
opinion refers mainly to petitioner Samayoa, the decision rendered
applies to both petitioners.
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summarily affirmed the IJ's decision, and Samayoa petitioned this
court for judicial review.
A. Facts
The petitioners' testimony elicited the following facts.
Mr. Samayoa's first run-in with the guerillas occurred in 1982,
when his car was stopped by a group of guerillas who tied him up,
put a gun to his head and threatened to kill him in order to
steal gasoline from him. The guerillas warned Mr. Samayoa that
if he mentioned the incident to authorities, they would kill him,
and that they knew where he lived. Instead of following the
guerillas' instructions, he reported the incident to an army
colonel. The colonel advised him that he should leave town, but
Mr. Samayoa did not want to, so the colonel made him an aide to
the military commissioner, a volunteer position which entitled
him to carry a gun. Thereafter, Mr. Samayoa was promoted to
military commissioner, in which capacity he engaged in military
recruiting. He also became the leader of his neighborhood civil
patrol, a position that put him in charge of a group of five
hundred patrolmen that protected the village from guerilla
fighters.
Mr. Samayoa received between thirty and fifty death threats
in the years after he became a military commissioner. The
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threats were addressed to him by name, and explicitly stated that
he would be killed by guerillas. In either 1987 or 1990, his
wife found a bomb under his car outside their house, which she
was able to deactivate before it detonated. In 1988, Mr. Samayoa
was falsely accused of kidnapping. He was told afterwards that
the plan had been for someone to kill him while he was in jail.
In 1991, a land mine exploded on Mr. Samayoa's property
while he was walking to milk his cows. He was wounded in the
face and was immediately surrounded by about eight armed men.
(His son informed him later that there had been approximately
sixty guerillas altogether.) Mr. Samayoa escaped on foot after
fending them off with the pistol he had been issued by the
military. In the meantime, the guerillas destroyed his truck.
Soldiers who went looking for the guerillas that attacked Mr.
Samayoa were bombed, and seven soldiers were killed.
In 1992, Mr. Samayoa was shot while driving along a
mountainous road about forty kilometers from his home. Other
vehicles were traveling along the road as well, and Mr. Samayoa
swerved to avoid a bus when a land mine exploded nearby. At that
point, twenty-five to thirty guerillas ran towards his car,
shooting at him. Mr. Samayoa escaped when his passenger took
control of the vehicle and transported them to a hospital in
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Joyabaj. There was no fighting going on in the region at the
time, and no other vehicles on the road were subjected to such an
attack. While he was at the Joyabaj hospital, the building was
subject to guerilla surveillance, but Mr. Samayoa was smuggled
out and airlifted to a military hospital in Guatemala City. Mr.
Samayoa was in a coma for three days. He remained in intensive
care for a month and was guarded by two military personnel.
Upon his discharge from the hospital, Mr. Samayoa was
unwilling to return to his home for fear of the guerillas, so his
wife rented a house in Guatemala City. He was put on active
payroll by the military and received outpatient treatment at the
hospital. Even after Mr. Samayoa had relocated to Guatemala
City, the guerillas continued to search for him.
Mr. Samayoa determined that he could not remain in
Guatemala, and applied for a visa at the United States embassy.
His application was denied, and although the Guatemalan military
authorities offered to help him obtain a visa, he thought it best
to enter the United States illegally. Even after he had left the
country the guerillas continued to look for him.
B. The IJ's Decision
The IJ did not make an express finding, one way or the
other, as to Mr. Samayoa's credibility, but concluded that he had
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not suffered persecution on account of one or more of the five
statutory grounds set forth in Section 101(a)(42)(A) of the
Immigration and Nationality Act. The IJ determined that the acts
suffered by Mr. Samayoa did not constitute persecution but were
instead attributable to generalized violence in the area.
Assuming for the sake of argument that Mr. Samayoa had been
persecuted in the 1992 incident, the IJ concluded that there had
not been a showing that he had been targeted on one or more of
the five statutory grounds. The IJ noted that Ms. Velasquez was
able to live peacefully in her home with hired security and that
the guerillas had not come looking for Mr. Samayoa since shortly
after he left Guatemala in 1992. The IJ noted that the civil war
in Guatemala ended some time ago, and that although there remains
a high level of crime, Mr. Samayoa did not appear to have a well-
founded fear of future persecution on one or more of the five
statutory grounds. Because Mr. Samayoa had not established
eligibility for asylum, he was not eligible for withholding of
removal. The IJ concluded that there had been no showing that
Samayoa or his wife were eligible for protection under the
Convention Against Torture.
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II. Discussion
On appeal, the BIA's findings of fact must be upheld "unless
any reasonable adjudicator would be compelled to conclude to the
contrary." 8 U.S.C § 1252(b)(4)(B); Laurent v. Ashcroft, 359
F.3d 59, 64 (1st Cir. 2004). Because the BIA summarily affirmed
the IJ's decision, we review the IJ's decision. Laurent, 359 F.
3d at 64 n.3.
As a prerequisite to establishing eligibility for asylum, an
alien must establish that he is a refugee, as set forth in
section 101(a)(42)(A) of the Immigration and Nationality Act.
8 U.S.C. § 1158(b). In that section, "refugee" is defined as:
any person who is outside any country of such person's
nationality or, in the case of a person having no
nationality, is outside any country in which such
person last habitually resided, and who is unable or
unwilling to return to, and is unable or unwilling to
avail himself or herself of the protection of, that
country because of persecution or a well-founded fear
of persecution on account of race, religion,
nationality, membership in a particular social group,
or political opinion.
8 U.S.C. § 1101(a)(42)(A). In order to demonstrate that he is a
refugee, Mr. Samayoa must establish both that he suffers from a
well-founded fear of persecution and that the feared persecution
is based on one of the five statutory grounds.
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The crux of Mr. Samayoa's petition for judicial review is
that the IJ erred when she found that Mr. Samayoa had not been
specifically targeted because of his opposition to the guerilla
movement given the number of threats and attempts he had been
subjected to. While Mr. Samayoa presents a sympathetic case and
his argument that he was specifically targeted has some merit, he
must also establish that he was persecuted on one of the five
statutory grounds.
Mr. Samayoa argues that his task is not to establish the
exact motivation of a persecutor, but only to demonstrate the
reasonableness of a motivation which is related to one of the
enumerated grounds. While an alien seeking asylum is not
required to provide direct proof of his persecutors' motives, he
must provide some evidence of such motives. INS v. Elias-
Zacarias, 502 U.S. 478, 483-84 (1992). There is little to tie
the alleged persecution to Mr. Samayoa's imputed political
opinion other than the fact that after the first attack, he
initiated his involvement with the military in order to secure
the right to carry a weapon. Participation in a civil defense
patrol does not by itself compel a conclusion that an individual
is subject to politically-inspired persecution. See Aguilar-
Solis v. INS, 168 F. 3d 565, 572 (1st Cir. 1999). Mr. Samayoa
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has not provided such evidence as would require a reasonable
factfinder to conclude that his fear of future persecution was
based on his actual or imputed political opinion.
III. Conclusion
For the reasons set forth above, the order of the BIA is
affirmed.
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