* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### JUN 27 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

ELISEO PELICO VICENTE,

Petitioner,

v. IMMIGRATION & NATURALIZATION SERVICE,

Respondent. No. 96-9544 (Petition for Review) (INS No. A73 737 696)

ORDER AND JUDGMENT *

Before BRORBY, BARRETT, and MURPHY, Circuit Judges.
After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.1 The Illegal Immigration Reform and Immigrant Respon sibility Act of 1996

(IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009, alte rs the availability, scope, and nature of judicial review in INS cases. However, b ecause petitioner’s deportation proceedings commenced before April 1, 1997, and the final decision of the BIA issued before October 31, 1996, neither IIRIRA’s pe rmanent “new rules,” nor its interim “transitional rules,” apply to this case. See id. §§ 306(c)(1), 309(a), (c)(1) & (4), as amended Pub. L. No. 104-302, § 2, 110 Stat. 3657, set out in notes to 8 U.S.C. §§ 1101, 1252. In contrast, provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104- 132, 110 Stat. 1214, may apply to INS cases commenced, like this one, before AEDPA’s enactment on April 24, 1996, see Fernandez v. INS , 113 F.3d 1151 (10th Cir. 1997), though none of these appear pertinent to this petition forreview, which does not involve deportation for criminal activity addressed by AEDP A. -2- Petitioner seeks review of a final order of the Boa rd of Immigration Appeals (BIA) denying petitioner’s request for asyl um and withholding of deportation. 1 The BIA found that petitioner did not qualify as a refugee, and therefore, was ineligible for asylum, because he ha d not established the requisite “well-founded fear of persecution on account of rac e, religion, nationality, membership in a particular social group, or politic al opinion,” 8 U.S.C. § 1101(a)(42)(A). We review the BIA’s determinations of law de novo, and we review its factual findings about an alien’s refugee status un der the substantial evidence rule. See Refahiyat v. United States Dep’t of Justice INS , 29 F.3d 553, 556 (10th Cir. 1994). We must uphold the BIA’s determinationthat petitioner was not eligible for asylum if it is “supported by reasonab le, substantial, and probative evidence on the record considered as a whole.” 8 U .S.C. § 1105(a)(4). We may-3-

reverse the BIA’s determination only if the evidenc e is “so compelling that no reasonable factfinder could fail to find the requis ite fear of persecution.” INS v. Elias-Zacarias , 502 U.S. 478, 484 (1992). Petitioner, a Quiche Indian, is a citizen and nativ e of Guatemala. He entered the United States without inspection in Dec ember 1993, after leaving Guatemala and living in Mexico for four months. Pe titioner conceded deportability at his deportation hearing, but claim ed that he had a well-founded fear of being persecuted by guerillas on account of his political opinion if he returned to Guatemala. Petitioner testified that t he guerillas frequently came to his village, rounded up all the young men, and trie d to recruit them. Petitioner said that twice he was taken by the guerillas and b eaten, but he managed to escape. While in hiding after his second escape, p etitioner learned that the guerillas had gone to his parents’ home looking forhim. Fearing what the guerillas would do to him if they found him, petiti oner fled the country. The BIA found that, even if petitioner’s testimony were entirely credible, the evidence did not establish persecution on accou nt of petitioner’s political opinion; the guerillas were not concerned with peti tioner’s political opinion, but with recruiting able-bodied young men to help theircause, see id. at 482 (noting that the persecution must be “on account of the vic tim’s political opinion, not the-4-

persecutor’s”). Our review of the record does not compel a contrary determination. Petitioner argues that his resistance to recruitmen t constituted political opinion, because when he told the guerillas he did not want to join them, they beat him. Petitioner’s testimony, however, did notestablish that there was any expression of political opinion on his behalf. Ins tead, it showed that he resisted recruitment because he did not want to be involved in killing people or other violent acts and because of his home and family. M oreover, even if petitioner held a political opinion, the evidence did not comp el a conclusion that the guerillas persecuted petitioner because of that pol itical opinion, rather than because he refused to fight with them. See id. at 483. We, therefore, conclude that substantial evidence s upports the BIA’s determination that petitioner did not establish a w ell-founded fear of persecution. This determination is fatal to petitioner’s claim f or withholding of deportation, as well. See Castaneda v. INS , 23 F.3d 1576, 1578 (10th Cir. 1994). The petition for review is DENIED. Entered for the Court James E. Barrett Senior Circuit Judge