Not for Publication in West's Federal Reporter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. 02-2328

NERY OLIVEIRIO NAJERA MÉNDEZ and

ELDA SUSANA JIMÉNEZ MÉNDEZ NAJERA,

Petitioners,

v.

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

 Boudin, Chief Judge,

Torruella and Selya, Circuit Judges.

Seth Adam Perlmutter on brief for petitioners.

Peter D. Keisler, Assistant Attorney General, Civil Division,

Ernesto H. Molina, Jr., Senior Litigation Counsel, and Jennifer

Paisner, Office of Immigration Litigation, U.S. Department of

Justice, Civil Division, on brief for respondent.

March 16, 2004
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Per Curiam. Nery Oliveirio Najera Mendez ("Najera") and

Elda Susana Jimenez Mendez Najera ("Jimenez") are citizens of

Guatemala, who entered the United States at the Mexican border

without being admitted or paroled on April 3, 1993, and August 27,

1992, respectively. The two were married in the United States on

April 14, 1998, and have one child born in the United States. On

October 15, 1998, the INS issued each of them a Notice to Appear

which charged Najera and Jimenez with removability under 8 U.S.C.

§ 1182(a)(6)(A)(i) (2000) as aliens present in the United States

without being admitted or paroled.

Najera and Jimenez conceded removability as charged, and

requested asylum and withholding of removal. An Immigration Judge

held a hearing on the asylum applications on November 16, 1999,

during which both Najera and Jimenez testified. At the conclusion

of the hearing, the Immigration Judge denied the petitioners'

applications for asylum because they had not been timely filed and

there were no excusing exceptional circumstances. 8 U.S.C. §

1158(a)(2) (2000). No appeal was taken from this aspect of the

ruling.

The Immigration Judge also denied petitioners'

applications for withholding of removal, finding that they had

failed to demonstrate past persecution or a probability of future

persecution on account of a protected ground. Petitioners appealed

this part of the Immigration Judge's decision to the Board of
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Immigration Appeals, which affirmed without opinion the decision of

the Immigration Judge. 8 C.F.R. 1003.1(a)(7) (2003). Petitioners

now seek review in this court, and under the new procedures this

means that we review directly the decision of the Immigration

Judge. Herbert v. Ashcroft, 325 F.3d 68, 71 (1st Cir. 2003);

Albathani v. INS, 318 F.3d 365, 373 (1st Cir. 2003).

 "The burden of proof is on the applicant for withholding

of removal . . . to establish that his or her 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(b) (2003). An

alien can establish withholding of removal in one of two ways.

First, the alien may demonstrate past persecution on one of the

protected grounds, which creates a rebuttable presumption that the

alien's life or freedom would be threatened in the future. Id. §

208.16(b)(1) (2003). Second, the alien may show that his or her

life or freedom would be threatened in the future by demonstrating

that it is more likely than not that he or she would be persecuted

on account of a protected ground. Id. § 208.16(b)(2) (2003).

The Immigration Judge found that petitioners had not

produced evidence sufficient to establish withholding of removal

under either method. That determination "must be upheld if

supported by reasonable, substantial, and probative evidence on the

record considered as a whole." El Moraghy v. Ashcroft, 331 F.3d
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195, 202 (1st Cir. 2003) (quoting INS v. Elias-Zacarias, 502 U.S.

478, 481 (1992) (internal quotation omitted)). We deny the

petitions for review because the evidence fails to establish past

persecution or a threat of future persecution on account of one of

the five enumerated grounds.

The evidence produced in support of petitioners' claim is

briefly as follows: Najera was born in the village of Santo Domingo

in Guatemala, and moved with his family to the village of Peten.

Jimenez also lived in the village of Peten, although she did not

know Najera before coming to America. In January 1984, when

petitioners were ten or eleven years old, the village was attacked

by guerrillas. Najera's parents disappeared in the attack.

Jimenez's parents were wounded in the attack, but survived and

continue to reside in Guatemala; her aunt, uncle, and cousin

disappeared in the attack.

Najera testified that his parents were not involved

politically, had no contact with the guerillas, and that although

they were Catholic his family was not persecuted on account of

their religion. Jimenez also testified that her family was not

part of any political or religious group that would have made them

subject to this kind of attack. Jimenez speculated that the 1984

attack by the guerrillas on Peten was caused by the false

accusation either that the villagers or her family specifically--
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her testimony is ambiguous on this point--were acting as informants

to the military against the guerillas.

Nothing in the evidence suggests past persecution on one

of the five protected grounds. The only other evidence as to past

persecution involved a 1986 guerilla attack on Najera's neighbor's

home in Santa Domingo. Najera fled to Santa Domingo after leaving

Peten but before leaving Guatemala altogether. The attack, which

focused on Najera's neighbor and not him, does not suggest past

persecution on account of one of the protected grounds.

Petitioners fare no better in seeking to prove future

persecution on account of one of the five protected grounds.

Najera testified that he has not had any contact with friends or

relatives in Guatemala since he left the country in 1986, and had

no knowledge of the current conditions there. Najera is not a

member of any organizations or groups in Guatemala, nor has he ever

been arrested, detained or interrogated in any country. He stated

that notwithstanding peace accords agreed on in 1996 in Guatemala,

he was still afraid to return because of what he experienced in

1984. When pressed as to whether he thought anyone in Guatemala

was looking for him specifically, he merely stated "there's always

people to harm you and I'm very frightened to be killed."

Jimenez, who left Guatemala in 1987 at the request of her

parents, still keeps in touch with her parents and siblings who

reside in Guatemala. She stated that although no member of her
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family has recently been attacked in Guatemala, she is afraid to

return there because "it is known that these people are always

killing there." Jimenez is not a member of any organizations or

groups in Guatemala, nor has she ever been arrested, detained or

interrogated in any country.

While petitioners have produced evidence that guerilla

attacks continue in Guatemala, and may even be able to demonstrate

that they too could fall victim to guerilla attacks, they have

produced no evidence to suggest that any persecution they may

suffer will be on account of one of the five enumerated protected

grounds. Petitioners concede as much in their brief: 

Eventhough [sic] the retribution which the

Petitioners believes [sic] they will suffer if

they are returned to Guatemala, does not

appear to be on account of race, religion,

nationality, membership in a particular social

group or political opinion, the fact the

Guatemalan government has been so ineffective

in preventing, policing and prosecuting cases

of retribution and other violent crime,

demonstrates an acquiescence and acceptance by

the government of these activities which place

people in the Petitioners' position in great

danger.

 

"[I]t is the law that general fears (even 'well-founded'

ones) of future harm from political upheaval or terrorist violence

are not sufficient to establish eligibility for asylum," Meguenine

v. INS, 139 F.3d 25, 29 (1st Cir. 1998), much less withholding of

removal, Albathani, 318 F.3d at 372-73 (withholding standard
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stricter than asylum standard), as the Immigration Judge

recognized. 

The petition for review is denied.