UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

JOSE ESTUARDO CANO-MANZANERO, Petitioner,

v. ERIC H. HOLDER, JR., United States Attorney General, Respondent. No. 13-9526 (Petition for Review)

ORDER AND JUDGMENT *

Before BRISCOE , Chief Judge, ANDERSON , Circuit Judge, and BRORBY , Senior Circuit Judge.

Petitioner Jose Estuardo Ca no-Manzanero petitions for review of the Board of Immigration Appeals’ (BIA’s) decision up holding the Immigration Judge’s (IJ’s) denial of asylum and rest riction on removal. We de ny the petition for review.

* After examining the briefs and appella te record, this pa nel has determined unanimously to grant the parties’ request for a decision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### October 16, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - I. Background Petitioner, a native and citizen of Guat emala, illegally entered the United States in 2005. 1 Two years later, he appeared at a master calendar hearing before an IJ in Los Angeles, California, where he c onceded removability. Later that year, he applied for asylum, restriction on rem oval, and protection under the Convention Against Torture (CAT). Venue was change d and in May 2010, Petitioner appeared before a new IJ in Salt Lake City, Utah . He reviewed Petiti oner’s prior concession on the record and continued the hearing. At a subsequent preliminary hearing the IJ explained to Petitioner, in res ponse to his inquiry, that if he wanted his brother to testify at his merits hearing, he would need to “file some thing” notifying the IJ of the witness “at least 15 days before [the] hearing.” Admin. R. at 187. Neither Petitioner nor his counsel did so. In February 2011, a merits hearing wa s held before the new IJ. Petitioner testified that in Guatemala he had work ed as a land-dispute mediator for the Commission of Conservation for Agreem ents of Peace, a non-governmental organization. Petitioner’s job was to visit communities where people were unlawfully squatting on nationa l park land, inform them that their presence was illegal, and offer them options to relocate with the a ssistance of the Guatemalan

1 Petitioner’s wife, Helen Corina Mendo za, accompanied him and is a derivative petitioner.- 3 - government. He testified th at he feared for his safety while performing his job and ultimately left Guatemala beca use he “received . . . deat h threats” related to his employment. Id. at 206. He described two specific incidents. In May 2005, he visited a community called Arroyo Macaballero for work. While discussing with the lo cal leaders their i llegal occupation of the land, armed individuals came out of th e jungle and threatened Petitioner with insulting language and obscene words. They told him to “ab andon the place” and that they “were not interested” in the Guatemal an government’s options. Id. at 215. He and his colleagues were frightened by the threat s and left. Petitione r did not suffer any physical harm and he did not report the inci dent to the police. He reported it to his supervisors though, and he believes that one of his supervisors reported it to the national civil police because those illegally occupyin g Arroyo Macaballero were forcibly evicted by the nationa l civil police and the army. Then, in mid-June 2005, Petitioner visite d an area called Laguna del Tigre for work. He had been there before. He obser ved that although money was scarce in this community, many people had all-terrain ve hicles, guns, and ammunition, and he suspected that they were involved with dr ug trafficking. Du ring this visit, the community’s leaders did not come forward, so Petitioner relayed his message and the options available. “After about a half-hour” the people “b ecame angry” and “started shooting” guns “in the air.” Id. at 224. He was told not to return and “heard people . . . say that” he would be “kill[ed].” Id. Petitioner and his colleagues ran to- 4 - their cars and safely departed . Petitioner reported the thr eats to the secu rity for the national park reserves and the individuals illegally occupying Laguna del Tigre were forcibly evicted in August 2005. Petitioner also testified that he a nd his wife received telephonic threats between late June 2005 and October 2005. The callers knew certain things about Petitioner and his family, such as when and where his children played, and the callers indicated that they intended to harm Peti tioner and his family. Petitioner did not know the identity of the calle rs but said they “made [him ] aware that they knew that [he] worked for . . . the Commission.” Id. at 233. Petitioner was afraid to report these calls to the po lice but did so in October 2005. The police took the report and asked him to make an add itional report to the public mi nistry. Fearing retaliation from the callers, Petitioner chos e not to make another report, and, in November 2005, he and his wife fled the country. 2 Finally, Petitioner testified that his wife’s sister (who was married to Petitioner’s brother) was killed in Guatemala in 2008. Wh en asked whether her death had anything to do with his employment, Pe titioner responded: “According to the police report, it was because they we re stealing a computer from her.” Id. at 270. At the close of the merits hearing, the IJ concluded th at Petitioner had failed to establish eligibility for asylum, had therefor e failed to meet the higher standard for

2 They left their two children with Petitioner’s mother until November 2007, at which time the children entered the United States ille gally. Admin. R. at 266.- 5 - restriction on removal, and deni ed CAT relief, “to the degree that it is still sought.” Id. at 82. The BIA, like the IJ, expresse d concern with Petiti oner’s credibility and the asylum application’s timeliness, but the BIA did not deny the application on either of those bases; rather , it reached the merits and di smissed Petitioner’s appeal in a single-member decision, constituti ng the final order of removal. Ritonga v. Holder , 633 F.3d 971, 97 4 (10th Cir. 2011)

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II. Discussion We review purely legal questions deci ded by the BIA de novo, but we review its factual findings under the s ubstantial-evidence standard. Karki v. Holder , 715 F.3d 792, 800 (10th Cir. 2013). Under this standard, “‘administrative findings of fact are conclusive unless any reasonabl e adjudicator would be compelled to conclude to the contrary.’” Id. (quoting 8 U.S.C. § 1252(b)(4)(B)). To be eligible for asylum, an appli cant “must establish refugee status, which requires proof that his race, religion, nati onality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting [him].” Id. (internal quotation marks omitted). One central reason means that the protected ground cannot have played a minor ro le in the applicant’s past treatment or fear of future harm. Id. at 800.

3 Petitioner did not specifically challenge the denial of CAT relief before the BIA, and he does not appear to be ra ising any CAT issues in this court.- 6 - A. Asylum and Restriction on Removal Petitioner challenges the BIA’s denial of his applicati on for asylum and restriction on removal, arguing that the BIA erroneously concluded that he had failed to demonstrate past persecution or a well -founded fear of futu re persecution. We disagree. Past Persecution The BIA concluded that Petitioner had “not established a nexus between past persecution and his political opi nion.” Admin. R. at 9. 4 The BIA found that rather than Petitioner’s political opinion, the people in Arroyo were motivated by “fear for their financial well-being if . . . forced to relocate,” a nd that the people in Laguna del Tigre were motivated by “fear[] that [Petitioner’s] efforts on behalf of the government would undercut their narcotics tr afficking business.” Admin. R. at 9. Petitioner does not dispute thos e findings. Indeed, he ignor es his burden of proving that his political opinion was a “central reason” for his “past treatment,” Karki , 715 F.3d at 800-01. See Dallakoti v. Holder , 619 F.3d 1264, 1268 (10th Cir. 2010) (“To reverse the BIA, the record must establish that any reasonable adjudicator would be compelled to conclude that one of the central reasons” those threatening the

4 Petitioner does not explicitly articulat e his “political opinion” (imputed or otherwise) but asserts that his “persecutors believed th at he shared the political opinion of the Guatemalan government in his attempts to convince them to relocate.” Pet’r Br. at 14.- 7 - petitioner “targeted [him] was because of his . . . political beliefs.”). 5 Instead, Petitioner takes issue with th e BIA’s determination that the telephonic death threats he received and the callers’ detailed knowle dge of his family’s daily life did not constitute past pe rsecution under Vatulev v. Ashcroft , 354 F.3d 1207 (10th Cir. 2003). In support, he contends that his family was “specifically ta rgeted and threatened in an immediate and terrifying manner” and that “any person, esp ecially a parent, would be absolutely terrified by the threats made.” Pet’r Br. at 15.
In Vatulev , this court held that “[t]hreats alone gene rally do not constitute actual persecution; only ra rely, when they are so immediate and menacing as to cause significant suffering or harm in themselves, do th reats per se qualify as persecution.” 354 F.3d at 1210 (emphasis added) . Here, the BIA acknowledged Vatulev’s teachings and concluded that “even assumi ng [Petitioner] had es tablished a nexus,” the threats Petitioner received “did not fa ll into the aforementioned category.” Admin. R. at 9. We concur. See Ritonga , 633 F.3d at 97 5 (observing that persecution “entail[s] more than just restrictions or th reats to life and liberty” (internal quotation marks omitted)); Tulengkey v. Gonzales , 425 F.3d 1277, 1280-81 (10th Cir. 2005) (observi ng that “denigration, hara ssment, and threats” are insufficient to establish pe rsecution and finding no past persecution where alien was

5 Petitioner’s request that we remand “for the BIA to consider, in the first instance, whether” he “establ ished a nexus to the past pe rsecution [he] suffered and the future persecution [he] fe ar[s],” disregards the BIA’ s explicit nexus finding and essentially asks this court to reweigh the evidence to find a nexus. Pet’r Br. at 15-16. This, we cannot do. Sidabutar v. Gonzales , 503 F.3d 1116, 1125 (10th Cir. 2007).- 8 - robbed, fondled, and suffere d a minor head injury (internal quotation marks omitted)). Moreover, Pe titioner does not challenge the BIA’s independently dispositive conclusion that he failed to de monstrate that any ha rm he had suffered was inflicted by the Guatemalan govern ment or a group the government was unwilling or unable to control. 6 See Niang v. Gonzales , 422 F.3d 1187, 1194-95 (10th Cir. 2005) (explaini ng that eligibility for asylum based on past persecution requires applicant to demonstrate pa st persecution was “committed by the government or forces the government is either unable or unwilling to control”). Accordingly, the BIA held th at Petitioner failed to estab lish past persecution, and we are convinced that a reasonable factfinder w ould not be compelled to find otherwise. Fear of Future Persecution “Even without past persecution, [Petit ioner] could still qualify for asylum by establishing a well-founded fear of future persecution.” Tulengkey , 425 F.3d at 1281 (internal quotation marks omitted). For a fear of future persecution to be well-founded, it must be both “subjectivel y genuine and objec tively reasonable.” Id.

6 In reaching this conclusion the BIA st ated that Petitioner was not physically harmed in Guatemala, and it observed that “armed civil patrol, police, or armed forces forcibly evicted” thos e who refused to leave the il legally occupied land, which “clearly” demonstrates the Guatemalan government was responsive to Petitioner’s complaints. Admin. R. at 9. Similarly, the BIA concluded that Petitioner’s sister-in-law’s murder did not demonstrate that any harm Petitioner suffered or feared was being perpetrated by the Guatemalan gove rnment or by a group it was unable or unwilling to control. She “was the victim of a robbery. . . . [The Petitioner’s] wife . . . testified that he r sister’s stolen property wa s returned, and one person was apprehended in connection with the crime.” Id. at 10.- 9 - “Fear of persecution is not well-founded if the applicant can avoid persecution by relocating to another part of the country an d it would be reasonable to expect [him] to do so.” Ritonga , 633 F.3d at 977-78. Petitioner’s fear-of-future-persecution claim relies on th e threats outlined above and his sister-in-law’s murder. He argues that the BIA erred by not “specifically” assessing “under either the asylum or rest riction on removal standard” his fear of future persecution, instead basing its decision on “the f act that Petitioner[] did not try to relocate to the capital city or to other cities. ” Pet’r Br. at 18. But the BIA’s decision is perfectly sound. Where, as here, the BIA de termines that an applicant cannot meet his burden of establis hing that he could not reasonably relocate to another area within his country of nationality, and he does not controvert the BIA’s relocation finding, his “claim of a well-founded fear of future persecution necessarily fails,” Tulengkey , 425 F.3d at 1281. And, gi ven the foregoing, we cannot conclude that a reasonable fa ct finder would be compelled to find a well-founded fear of future persecution. Because Petitioner failed to demonstr ate a well-founded fear of persecution under asylum standards, he necessarily fails to meet the higher standard for restriction on removal. Karki , 715 F.3d at 801.
B. Due Process Finally, Petitioner argues that this ca se must be remanded because the BIA failed to address his argumen t that the new IJ denied hi m due process by failing “to- 10 - state for the record” that he had familiarized himself with the case pursuant to 8 C.F.R. § 1240.1(b), and by not allowing Petitioner’s brother to testify at Petitioner’s merits hearing. Pet’r Br. at 12-13. Petitioner’s arguments are meritless. Cf. Niang , 422 F.3d at 1197 (When the BIA “has failed to address a ground raised by an applicant in support of [his ] claim, we should . . .remand if the ground appears to have any substance ” (emphasis added)). “To prevail on a due process claim, an alien must establish not only error, but prejudice.” Alzainati v. Holder , 568 F.3d 844, 851 (10t h Cir. 2009). Moreover, “[b]ecause aliens do not have a constitutional right to enter or re main in the United States, the only protections afforded are the minimal procedural due process rights for an opportunity to be h eard at a meaningful time and in a meaningful manner.” Arambula-Medina v. Holder , 572 F.3d 824, 828 (10th Cir. 2009) (internal quotation marks omitted). Here, although the new IJ fa iled to state on the record that he had familiarized himself with Petitioner’s case, there is no question that he had—among other record evidence, his twenty-five page oral decision is extremely detailed. Further, Petitioner does not identify any prejudice stemming from the IJ’s failure to comply with § 1240.1(b), and without such, he cannot prevail on this due process claim. Alzainati , 568 F.3d at 851. See also Medrano-Boggs v. Holder , 485 F. App’x 873, 874 (9th Cir. 2012) (rejecting petitioner’s cl aim that “the IJ deprived her of due process by failing to comply with 8 C.F. R. § 1240.1(b)” because petitioner could not- 11 - demonstrate resultant prejudice). Nor can Pe titioner prevail on his claim that he was denied due process when the new IJ refused to allow Petitioner’s brother to testify at Petitioner’s merits hearing. Petitioner did not explain to the BIA and he does not explain to this court what information hi s brother would have provided or how the absence of his testimony prej udiced Petitioner’s case, whic h is fatal to his claim, Alzainati , 568 F.3d at 851. See Pet’r Br. at 12 (asserting, without elaboration, that “the prejudice resulting from th e . . . refusal to let this essential witness testify far outweighs any poten tial prejudice to the government”). III. Conclusion The petition for review is denied. Entered for the Court
Stephen H. Anderson Circuit Judge