IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60244
Summary Calendar
EVER JOSUE HERNANDEZ,
Petitioner,
versus
JOHN ASHCROFT, U S Attorney General,
Respondent.
Appeal from the United States District Court
for the Northern District of Texas
(A73 113 603)
October 24, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Ever Josue Hernandez, a native and citizen of Guatemala,
appeals the decision of the Board of Immigration Appeals affirming
an immigration judge’s denial of asylum and withholding of removal.
Because we find that the BIA’s decision is supported by substantial
evidence and that Hernandez has procedurally defaulted on his other
arguments, we AFFIRM.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
I
Prior to entering the United States, Hernandez was a street
vendor in Guatemala. In November, 1990, several soldiers came to
Hernandez’s home to question him about the activities of guerilla
members of the Guatemalan National Revolutionary Army, an insurgent
force. Hernandez was taken into custody by the soldiers.
According to Hernandez, the soldiers then attempted to take another
man into custody, but this individual resisted and was killed. In
the resulting confusion Hernandez escaped and allegedly hid in a
church for eight days.
After he fled Guatemala, soldiers came regularly to
Hernandez’s home looking for him for about two years. There have
been no such attempts to locate Hernandez since 1992, and the
Guatemalan military was restructured in 1996 pursuant to a peace
agreement between the guerillas and the government.
Hernandez entered the United States in December, 1990 near
Brownsville, Texas. The INS began removal proceedings in June,
1998. The immigration judge denied Hernandez’s requests for asylum
and withholding of removal, but granted his request for voluntary
departure. The BIA affirmed. Hernandez now appeals the BIA’s
ruling.
2
II
The Attorney General may grant asylum, within his discretion,
provided an alien meets the statutory definition of “refugee.” The
Immigration and Nationality Act defines a refugee 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.”1
Hernandez argued to the immigration judge and BIA that he had both
been subject to past persecution and had a well-founded fear of
persecution were he to be returned to Guatemala. On appeal,
however, Hernandez only argues that he was subject to past
persecution. The Government notes this procedural default in its
brief, and Hernandez does not respond with a reply brief.
Accordingly, the argument that Hernandez has a well-founded fear of
persecution if returned to Guatemala has been waived.2
1
8 U.S.C. § 1101(a)(42)(A).
2
FDIC v. Texarkana Nat’l Bank, 874 F.2d 264, 271 (5th Cir. 1989)
(“Arguments raised on appeal must be included in the appellate brief or they may
be considered waived.”). While Hernandez devotes some of his background
discussion of the law of asylum to the “well-founded fear” requirements, he makes
no application of that discussion to the facts of his case, and in his argument
section refers only to past persecution. The Court notes the fact that the
majority of Hernandez’s brief is not specific to this case, lending the
appearance that counsel has merely “cut and paste” a pre-prepared (and poor)
brief on asylum law.
3
We review the BIA’s finding that a petitioner has not met the
requirements for asylum under the “substantial evidence” test.3
“Under the substantial evidence standard applicable to denials of
asylum, we must defer to the BIA’s factual findings unless the
evidence is so compelling that no reasonable fact finder could fail
to find otherwise.”4
Given our precedents, Hernandez’s allegations of persecution
simply cannot provide a basis for our reversal of the BIA.
Hernandez does not provide compelling evidence that his persecution
was based on his political opinion, actual or imputed. The
soldiers sought Hernandez to question him regarding guerillas, not
necessarily because they felt he was politically sympathetic to the
guerillas’ cause. Furthermore, there was no physical persecution
of Hernandez whatsoever, the soldiers gave chase when Hernandez
fled, and at this point their interest in Hernandez may only have
been primarily disciplinary in nature. We have previously held
that much more egregious government action did not amount to
compelling evidence of persecution.5
3
INS v. Elias-Zacarias, 502 U.S. 478, 480 (1992).
4
Mikhael v. INS, 115 F.3d 299, 304 (5th Cir. 1997).
5
Id. (finding that bombing of family home, kidnapping of shooting of
relatives, and detention of alien did not provide compelling evidence of past
persecution in the context of ongoing civil war); Ozdemir v. INS, 46 F.3d 6, 7
(5th Cir. 1994) (holding that alien did not suffer persecution where he was
detained for three days, interrogated, and beaten on the soles of his feet). The
denial of withholding of deportation was also proper given that the standard of
proof required for withholding of deportation is more stringent than that for
granting of asylum. Mikhael, 115 F.3d at 306.
4
Finally, Hernandez, for the first time on appeal, argues that
the past persecution he suffered was so severe that he merits
asylum on humanitarian grounds. We will not consider this argument
because Hernandez did not raise it in his administrative
proceedings.6
III
For the foregoing reasons, we AFFIRM.
6
Youssefinia v. INS, 784 F.2d 1254, 1258 (5th Cir. 1986).
5
Hernandez v. Ashcroft
Combined Opinion