Not For Publication in West's Federal Reporter
Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
United States Court of Appeals
For the First Circuit
No. 04-1999
RICARDO GARZA-LÓPEZ,
Petitioner,
v.
ALBERTO GONZÁLES,*
UNITED STATES ATTORNEY GENERAL,
Respondent.
ON PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Chief Judge,
Torruella and Howard, Circuit Judges.
José A. Espinosa, on brief, for petitioner.
Michael J. Haungs, Tax Division, with whom Peter D. Keisler,
Assistant Attorney General, and Ethan B. Kanter, Civil Division,
Office of Immigration Litigation, were on brief, for respondent.
July 20, 2005
*
Alberto Gonzáles was sworn in as United States Attorney General
on February 3, 2005. We have therefore substituted Attorney
General Gonzáles for John Ashcroft as the respondent. See Fed. R.
Civ. P. 25(d)(1); Fed. R. App. P. 43(c)(2).
Per Curiam. Petitioner appeals an order by the Board of
Immigration Appeals ("BIA") affirming the Immigration Judge's
("IJ") decision to deny his application for asylum because he
failed to establish an objective basis for a well-founded fear of
future persecution. Since there is substantial evidence in the
record to support the BIA's order, we affirm.
I. Background
Petitioner is a 31-year-old national of Guatemala. He
entered the United States without inspection at or near San Ysidro,
California, on September 15, 1991, when he was eighteen years old.
On February 22, 2001, the Immigration and Naturalization Service1
served petitioner with a Notice to Appear, alleging that he is an
alien present in the United States who has not been admitted or
paroled after inspection by an Immigration Officer. Petitioner
admitted these allegations and conceded removability, but sought
relief of asylum, withholding of removal, and protection under the
Convention Against Torture. On February 14, 2001, the IJ denied
petitioner's applications for relief and granted him the privilege
of voluntary departure. The BIA affirmed the IJ's decision without
opinion. This petition for review follows.2
1
In March 2003, the relevant functions of the Immigration and
Naturalization Service were transferred into the new Department of
Homeland Security and reorganized into the Bureau of Immigration
and Customs Enforcement.
2
Petitioner's brief only addresses the BIA's denial of his
application for asylum, and makes no argument regarding the denial
-2-
Between the ages of fourteen and eighteen, during a time
of civil war in Guatemala, petitioner served in the military
reserves. The reserves were operated by the Guatemalan government,
but separate from the Civil Patrol and the Guatemalan Army. One
night a week, petitioner patrolled the highways, looking for
suspicious activity and "register[ing]" passers-by to see if they
were "carrying something." Sometimes his duties required him to
detain people. Throughout his service with the reserves,
petitioner encountered members of guerrilla forces, some of whom
were aggressive. At one point, petitioner suffered "light harm"
when a guerrilla cut him on the hand. He also testified before the
IJ that in 1989, a member of his reserve group shot a man in the
leg, incapacitating him. Although petitioner "felt bad" about this
event, no subsequent interactions resulted from the incident. He
was never captured by guerrillas, but he was approached to join
them on multiple occasions in 1988. To the best of petitioner's
knowledge, the guerrillas sought him out because they saw him as a
healthy young man who could replenish their ranks. Petitioner
testified that he was never politically involved in Guatemala, and
has not had any problems with, or fear of, the Guatemalan
government.
of his requests for withholding of removal and relief under the
Convention Against Torture. Petitioner has therefore waived any
challenge to these issues. See Qin v. Ashcroft, 360 F.3d 302, 305
n.5 (1st Cir. 2004).
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Although peace accords between the guerrillas and the
Guatemalan government were signed in 1996, petitioner contends that
the "delinquency continues." Carrying out these delinquent acts,
petitioner alleges, are ex-guerrillas, whom petitioner agrees may
now be characterized as common criminals. He fears them for
several reasons. First, he fears retaliation by those whom he
detained during his service. Second, he fears retaliation for not
having joined the guerrilla forces after repeatedly being asked to
do so. Third, he fears that the ex-guerrillas, who may perceive
him as "well-to-do" since he has lived in the United States for so
long, will make him the target of their crimes in an attempt to
obtain some of the money he has earned while working here.
Petitioner fears that, even after thirteen years, he will be
recognized by ex-guerrillas who wish him harm, and that he will not
be safe from this harm anywhere in Guatemala since it is a small
country. Although he testified before the IJ that he has "heard
things" from his family to substantiate this fear, he was unable to
provide specific evidence to support this contention and conceded
that no one in Guatemala is looking for him in particular. While
petitioner claims the primary reason he wishes to remain in the
United States is to avoid the danger he believes awaits him in
Guatemala, he also testified that he wants to remain in this
country in order to earn enough money to support his family.
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Petitioner's wife and children still reside in Guatemala.
He also has a father and siblings living there. According to
petitioner, two of his brothers previously had some unspecified
problems because of their participation in the reserves, but solved
those problems later. Petitioner also testified that two of his
cousins were assassinated by the guerrillas, one in 1987 and the
other in 1992. Otherwise, the rest of his relatives have remained
in Guatemala without incident.
II. Analysis
In order to be eligible for asylum, "the burden of proof
is on the applicant . . . to establish that he or she is a refugee
as defined in section 101(a)(42) of the [Immigration and
Nationality] Act."3 8 C.F.R. § 208.13(a). "The applicant may
qualify as a refugee either because he or she has suffered past
persecution or because he or she has a well-founded fear of future
persecution." 8 C.F.R. § 208.13(b). The BIA's determination that
petitioner was 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-Zacarías, 502 U.S.
3
The relevant part reads: "The term 'refugee' means (A) 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).
-5-
478, 481 (1992) (quoting 8 U.S.C. § 1105a(a)(4)); see also Yatskin
v. INS, 255 F.3d 5, 9 (1st Cir. 2001) ("we review a denial of a
petition for asylum by the BIA under a substantial evidence
standard"). We review findings of fact deferentially, and thus may
reverse such a finding only if "any reasonable adjudicator would be
compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).
Because the BIA affirmed the IJ's decision without opinion, we
review the decision issued by the IJ. See Albathani v. INS, 318
F.3d 365, 373 (1st Cir. 2003).
A. Past Persecution
"To qualify as persecution, a person's experience must
rise above unpleasantness, harassment, and even basic suffering."
Nelson v. INS, 232 F.3d 258, 263 (1st Cir. 2000). Petitioner must
also establish "through direct or circumstantial evidence, that his
alleged persecutors were motivated by one of the statutorily
enumerated grounds."4 Guzmán v. INS, 327 F.3d 11, 15 (1st Cir.
2003) (citing Elías-Zacarías, 502 U.S. at 483).
Petitioner claims that he suffered past persecution when
guerrillas cut him on his hand, harm which he characterizes as
"light." He also claims that the emotional harm he suffered as a
result of face-to-face interactions with aggressive guerrillas
establishes past persecution. While we acknowledge that these
4
Race, religion, nationality, membership in a particular social
group, or political opinion. See 8 C.F.R. § 208.13(b)(1).
-6-
experiences may have been unpleasant, they do not fulfill the
statutory requirement of past persecution on account of political
opinion. Even assuming, arguendo, that the claimed physical and
emotional harm was suffered on account of petitioner's political
opinion, his harm must have been substantially more severe than a
light cut on his hand and some frightening confrontations in order
to establish past persecution. See Guzmán v. INS, 327 F.3d 11, 15-
16 (1st Cir. 2003) (assuming petitioner was targeted by guerrillas
for statutorily protected reasons, "one-time kidnaping and beating
falls well short of establishing 'past persecution'"). In Guzmán,
we determined that the injuries the petitioner incurred from being
beaten by guerrillas were "superficial." Id. at 15. Since we
cannot fairly characterize petitioner's injuries in this case as
anything more than superficial, this evidence does not compel us to
reverse the BIA's decision.
B. Well-Founded Fear of Future Persecution
Since petitioner cannot establish past persecution, he is
not entitled to the statutory presumption of a well-founded fear of
future persecution as provided in 8 C.F.R. § 208.13(b)(1). He
therefore must establish this well-founded fear by proving both a
subjective and objective component. Álvarez-Flores v. INS, 909
F.2d 1, 5 (1st Cir. 1990). Subjectively, the fear he asserts must
be genuine. Id. Objectively, petitioner must show "'by credible,
direct, and specific evidence . . . facts that would support a
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reasonable fear that the petitioner faces persecution.'" Id.
(quoting Díaz-Escobar v. INS, 782 F.2d 1488, 1492 (9th Cir. 1986)).
In general, "the BIA requires that an applicant show that a
reasonable person in his circumstances would fear persecution."
Id. at 3 (internal quotations and citation omitted). The IJ, while
accepting the petitioner's testimony, found petitioner had not
established an objective basis for his claim. This finding is
wholly consistent with the required showing of "credible, direct,
and specific" facts to support a well-founded fear of future
persecution.
First, the IJ found that petitioner's testimony that he
cannot live anywhere in Guatemala without being recognized for his
prior military services, completed over thirteen years ago, is not
credible. In this regard, the IJ noted that petitioner's wife and
children have lived without incident in a different community in
Guatemala than the one in which petitioner grew up. See Aguilar-
Solís v. INS, 168 F.3d 565, 573 (1st Cir. 1999) (noting that "the
fact that close relatives continue to live peacefully in the
alien's homeland undercuts the alien's claim that persecution
awaits his return"); see also Guzmán, 327 F.3d at 16 (finding that
the fact that other relatives of the petitioner have lived
undisturbed in Guatemala for more than a decade supports the
conclusion that Guzmán failed to establish eligibility for asylum).
Furthermore, 8 C.F.R. § 208.13(b)(3)(i) requires that unless the
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persecution is by a government or is government-sponsored, "the
applicant shall bear the burden of establishing that it would not
be reasonable for him to relocate [within the country]." In
petitioner's case, the persecution he fears is from individuals who
were once associated with a guerrilla insurgency, but who he
acknowledges are now common criminals. Since these ex-guerrillas
are not in any way sponsored by the Guatemalan government, it is
petitioner's burden to establish that it would be unreasonable for
him to relocate to a different part of the country. The only
evidence petitioner has offered for this point is that these ex-
guerrillas roam throughout the small country of Guatemala, from
which he concludes that they will inevitably meet and recognize
him, and seek revenge upon him. We agree with the IJ that
petitioner's alleged fear of being recognized lacks credibility.
This evidence certainly does not compel a finding that petitioner's
fear of being recognized and persecuted is well-founded.
Second, the IJ found that petitioner had not suggested
that anyone in particular may be seeking to pursue him for
retaliatory purposes. Indeed, petitioner concedes that no one in
Guatemala is looking for him specifically. Accordingly,
petitioner's evidence lacks specificity. See Velásquez v.
Ashcroft, 342 F.3d 55, 59 (1st Cir. 2003) (noting lack of specific
evidence where petitioners failed to present evidence that
-9-
guerrillas sought retribution against any of the remaining family
members).
Finally, the IJ noted that although the incident in which
a member of petitioner's reserve group incapacitated a man occurred
in 1989, petitioner did not leave Guatemala until two years later.
Consequently, the IJ determined that petitioner had not been at
significant risk of retaliation during those two years. We have
previously found that remaining undisturbed in a country of claimed
persecution for as little as six months suggests the absence of any
ongoing threat of persecution. See Novoa-Umania v. INS, 896 F.2d
1 (1st Cir. 1990) (finding that BIA might conclude, based on
applicant's stay for more than six months in San Salvador without
incident, that there was no ongoing threat of persecution); see
also Rodríguez-Rivera v. INS, 848 F.2d 998, 1006 (9th Cir. 1988)
(finding it "significant" that applicant continued to live
undisturbed for three months after threat). Petitioner in this
case remained in Guatemala for two years after an event for which
he claims to fear retaliation. We believe that the fact that there
were no incidents of persecution during those two years undercuts
petitioner's claim that danger awaits him in Guatemala. Especially
in light of the civil war's end and the passage of more than
thirteen years, it seems unlikely that petitioner would face
persecution on account of political opinion upon returning to
Guatemala.
-10-
Since petitioner does not meet the statutory requirements
for asylum eligibility, the IJ had no discretion to grant asylum.
See 8 C.F.R. § 208.14 ("an immigration judge may grant or deny
asylum in the exercise of discretion to an applicant who qualifies
as a refugee") (emphasis added). Accordingly, we find that the IJ
had substantial evidence for denying petitioner's request for
asylum, and we cannot say that petitioner's evidence compels a
contrary conclusion.
III. Conclusion
For the reasons stated above, the BIA's order is
affirmed.
Affirmed.
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