Not for Publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc. R. 32.3 

# United Stat es Court of Appeals

For the First C ircuit

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 AttorneyGeneral, 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, 2004-2- 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. § 118 2(a)(6)(A)(i) (2000) as aliens present in the United Stat e s without being admitted or paroled.

Najera andJimenez conceded removabilityas charged, and requestedasylum and withholding of removal. An Immigration Judge helda 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 excusin g exce ptional circumstances. 8 U.S.C. § 1158(a)(2) (2000). No appea l was taken from this aspect of the ruling. The Immigration Judge also denied petitioners' applications for withholding of removal, finding that th ey h ad 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-3-

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 t he dec ision of the Immigration J udge. He rbert 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 part icular social group, or politica l 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 protectedgrounds, which creates a rebuttable presumption that the alien's life or freedom would be threatened in the future. Id. § 208.16(b)( 1) (2 003). Second, the alien may show that his or her life or freedom would be threatened in the future by demonstrating that it is more likelythan 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 petitione rs ha d not producedevidence sufficient to establish withholding of rem oval under either method. That determination "must be upheld if supportedby reasonable, substantial, and probative evidence on the recordconsidered as a whole." El Moraghyv. Ashcroft , 33 1 F.3 d-4-

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 brieflyas follows: Najera was born in the village of Santo Domingo in Guatemala, and moved wi th hi s family to the village of Peten. Jimenez also lived in the village of Peten, alth ough she did not know Najera before coming to America. In January 1984, when petitioners were ten or eleven years old, the village was attacked byguerrillas. 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, un cle, and cousin disappeared in the attack.

Na je ra testified that his parents were not involved politically, had no contact with the guerillas, and that although theywere 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---5-

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 focusedon 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 per secution on account of one of the five protected grounds. Najera testified that he has not had any contact w ith f riends or relatives in Guatemala since he left the country in 1986, and had
no knowledge of the current cond itio ns 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 w as still a fraid to return because of what he experienced in 1984. When press ed as to whether he thought anyone in Guatemala
was looking for him specifically, he merelystated "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 st ated that although no member of her-6-

familyhas 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 o rganizations 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 pro duced 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 theyare returned to Guatemala, does not appear to be on acc ount 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 (withhold ing st andard-7-

stricter than asylum standard), as the Immigrati o n Judge recognized.

The petition for review is denied .