UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Argued June 14, 2006
Decided August 2, 2006
Before
Hon. WILLIAM J. BAUER, Circuit Judge
Hon. DANIEL A. MANION, Circuit Judge
Hon. DIANE S. SYKES, Circuit Judge
No. 05-3420
AURELIO S. LOPEZ VASQUEZ, Petition for Review of an Order of the
Petitioner, Board of Immigration Appeals
v. No. A79-587-506
ALBERTO R. GONZALES,
Respondent.
ORDER
Aurelio Lopez Vasquez, a Guatemalan native who entered the United States
illegally in 1998, applied for asylum in 2001, too late to be eligible for asylum. An
IJ ruled that although Lopez Vasquez could apply for withholding of removal, he
had failed to make the necessary showing of a clear probability of persecution.
Lopez Vasquez appealed to the BIA, arguing that his failure to demonstrate such a
No. 05-3420 Page 2
probability of persecution was due to the ineffective assistance of counsel. The BIA
affirmed, and he petitions this court for review of that order. Because Lopez
Vasquez failed to meet his burden of proof for the withholding of removal, we deny
his petition for review.
I. Background
The facts of this case are undisputed. At his hearing before the IJ, Lopez
Vasquez testified that he was from the town of El Rodeo, Guatemala, where he had
worked on a plantation harvesting coffee. His cousin, Mario Vasquez, who worked
nearby, ran a sideline business selling chickens to Guatemalan National
Revolutionary Unity (URNG) guerillas based nearby. Lopez Vasquez testified that
he did not provide food to the guerillas himself, but was aware of his cousin’s
activity. So too, according to Lopez Vasquez, was the Guatemalan government.
Lopez Vasquez testified that he was walking to work with Mario Vasquez in late
1989, when seven men with masks and “high caliber arms” appeared and seized his
cousin. The kidnappers saw Lopez Vasquez, but he fled and hid among the coffee
plants. About two days later in El Rodeo, he saw them again. He recognized them
as the kidnappers because of their build, their clothing, and the mud that had
splattered their pants and shoes when they threw Mario Vasquez to the ground. He
reported the men to the police, who took no action. Lopez Vasquez was later told
that the men worked for G-2, a Guatemalan paramilitary unit. Approximately a
week after Lopez Vasquez saw the G-2 operatives in town, Mario Vasquez’s body
was found on the roadside, mutilated and bearing signs of torture. The same men
Lopez Vasquez had seen in town then came to his house and questioned his parents
about him; Lopez Vasquez testified that they “thought I was participating in that
kind of work that my cousin was doing.” In early 1990, about two months after
Mario Vasquez’s murder, Lopez Vasquez fled to Mexico.
Lopez Vasquez stayed in Mexico for a year, and returned to Guatemala in
1991 “hoping things will be better.” But men again came to his parents’ home
looking for him, saying that they learned he had returned. So Lopez Vasquez
returned to Mexico, where he resided illegally for seven years. But even in Mexico,
Lopez Vasquez testified, armed men tracked him down. Men with weapons, who he
speculated were G-2 agents, came looking for him once while he was living in
Mexico, and at least one more time after he left. After the first visit to his home in
Mexico, he fled to the United States, where he resided for two years before applying
for asylum.
Lopez Vasquez conceded at his hearing that he was ineligible for asylum
because his application was late, but attempted to establish that he was entitled to
withholding of removal because he reasonably feared that he would be killed for his
“imputed political opinion” if he were returned to Guatemala. Lopez Vasquez
No. 05-3420 Page 3
testified that he feared harm because he had recognized the G-2 agents: “I think
they will kill me so that I will not report them.” He said that his parents warned
him in 1998 not to return because people were still looking for him. On cross-
examination, however, Lopez Vasquez admitted that his son has been living
without incident in Guatemala since 1998. This was possible, he said, because his
son was an unregistered Mexican immigrant and had his mother’s surname.
The IJ found that Lopez Vasquez did not have a sufficient excuse for filing
his asylum application outside the one-year time limit, and restricted his analysis
to Lopez Vasquez’s claim for withholding of removal. Merely alleging a fear of
future persecution, the IJ noted, was insufficient to meet Lopez Vasquez’s burden of
proof. The IJ explained that Lopez Vasquez’s purported fear of future persecution
was weakened by four facts: (1) Lopez Vasquez never actually saw the faces of the
men who attacked his cousin; (2) Lopez Vasquez never established that those men
spoke to or confronted him at the time; (3) the murder of Mario Vasquez occurred
fifteen years before the removal hearing, during a civil war in which Lopez Vasquez
took no part; and (4) according to the State Department report, the URNG guerillas
had disbanded and joined the government after the civil war ended with a peace
accord in 1996. Moreover, the IJ noted that it was possible that the armed men who
Lopez Vasquez testified came looking for him were “government officials seeking to
have him comply with the reporting requirements to the military.” Accordingly, the
IJ ruled that Lopez Vasquez’s “unconvincing testimony and his fear of persecution
on account of what seems to be speculation and assumption in many parts does not
meet his burden of proof for purposes of withholding of removal.”
On appeal to the BIA, Lopez Vasquez argued through a new attorney that his
removal hearing was “profoundly flawed” because he had received inadequate
assistance of counsel. Specifically, he asserted that his prior counsel had failed to
make an appearance before the IJ, made no opening or closing statement at the
hearing, and presented no evidence to corroborate his testimony. The BIA adopted
and affirmed the IJ’s decision, concluding that Lopez Vasquez did not meet his
burden of proof for withholding of removal. And although the IJ acknowledged that
his first attorney had been disbarred since the hearing, it determined that Lopez
Vasquez failed to satisfy the requirements of Matter of Lozada, 19 I. & N. Dec. 637
(BIA 1988), which set forth the necessary elements of an ineffective assistance of
counsel claim.
II. Analysis
Lopez Vasquez’s central argument is that the BIA erred by not recognizing
that his prior counsel’s inadequate performance before the IJ violated his rights to
due process. Specifically, he argues that his first counsel’s ineffective assistance
prevented him from adequately supporting his claim for withholding of removal
No. 05-3420 Page 4
with corroborating evidence. We need not determine whether Lopez Vasquez
substantially complied with the Lozada requirements, or whether there is a due
process remedy for the ineffective assistance of counsel in such circumstances
generally. Lopez Vasquez was able to state his case before the IJ, and his claim of
ineffective assistance of counsel is predicated on his inability to support the
allegations he made with corroborating evidence. For purposes of this appeal, we
accept as true the facts that he alleges. Thus, even without the corroborating
evidence that a better attorney might have submitted to support his claim, Lopez
Vasquez did not allege facts that, if proven, would support the withholding of
removal.
To secure withholding of removal, an applicant must show that his “life or
freedom would be threatened in the proposed country of removal on account of race,
religion, nationality, membership in a particular social group, or political opinion.”
8 C.F.R. § 208.16(a). Moreover, “an applicant must establish a ‘clear probability’ of
persecution to avoid deportation.” Mabasa v. Gonzales, 440 F.3d 902, 907 (7th Cir.
2006). We review denials of withholding of removal under a “highly deferential
substantial evidence standard.” See Mabasa, 440 F.3d at 907; Uwase v. Ashcroft,
349 F.3d 1039, 1041 (7th Cir. 2003). We will not reverse the agency’s determination
where the petitioner shows that the evidence supports a different outcome; a
petitioner must show that the evidence compels a different conclusion. See INS v.
Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992); Mabasa, 440 F.3d at 907.
Lopez Vasquez testified that G-2 was hunting him because he witnessed their
abduction of a relative. He asserts that his cousin was murdered for his political
beliefs, and that he was then targeted because that political opinion was imputed to
him. But this is mere speculation; if the kidnappers were, in fact, hunting Lopez
Vasquez there is no reason to believe that it was because they objected to his
political beliefs, as required by § 208.16(a). As the IJ additionally noted, because
his cousin’s attackers were masked, he never saw their faces and they never spoke
to him or confronted him. He was never involved in providing food to the guerillas.
Nor did Lopez Vasquez present a convincing argument that the agents would still
be hunting him after more than fifteen years, given the intervening cessation of
hostilities between the Guatemalan government and rebel faction. Referring to the
State Department report, the IJ noted that the guerillas have since disbanded and
now form part of the governing coalition. No facts that he alleged, even if supported
by corroborating evidence, would show a clear probability of persecution if he is
returned to Guatemala, much less compel that conclusion. See Elias-Zacarias, 502
U.S. at 481 n.1; Mabasa, 440 F.3d at 907.
In denying Lopez Vasquez’s petition, we certainly do not in any way endorse
his representation by legal counsel he deems incompetent to properly present his
No. 05-3420 Page 5
case. But because his claims were fully considered and adjudicated, he was not
prejudiced by any of the shortcomings he alleges.
DENIED.