NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0455n.06
Case No. 09- 4388
UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

RAUL CASTELL ANOS-SALAZAR , P etitioner ,

v. ERIC H. HOL DER, Jr.,U.S. Att orney Ge neral, Respondent.

_______________________________________ ) ) ) ) ) ) ) ) ) ) P ETIT ION F OR REVIEW OF AN ORDER OF THE B OARD OF IMMIG RATION AP P EALS

Before: BATCHELDER, Chief Judge; CLAY and S UTTON, Circuit Judges.
ALICE M. BATCHEL DER, Chief Judge. Raul Castellanos-Salazar, a native and citizen of Gua temala, se eks re view of the decision by the Board of I mmigra tion Appeals (B I A) a ffirming an immigr ation judge ’s (I J ’s) de nial of his application for asy lum. We DENY the pe tition.

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Fr om J une 2000 until late 2004, Castellanos-Salazar was a m em b er o f a national labor fede ration in G uatemala , the “Tra de Workers Union of Guatema la” (“U NSI TRAGUA” or “Union Sindical de Traba

jadore s de Guatema l a”) , for which he wrote and distributed fliers advocating worke rs’ rig hts. Shortly afte r beg inning this job, he beg an to rec eive telephone calls at the office

— all from the same, unknown person — threa tening to harm or kill him if he did not stop distributing

I n h i s i n i t i a l f

i l i n g s w i t h t h e i m m i g r a t i o n c o u r t , C a s t e l l a n o s - S a l a z a r m o v e d f o r r e l i e f f r o m r e m o v a l o n t h e b a s e s 1
o f a s y l u m , w i t h h o l d i n g o f r e m o v a l u n d e r t h e I N A , a n d p r o t e c t i o n u n d e r t h e C o n v e n t i o n A g a i n s t T o r t u r e . T h e i m m i g r a t i o n c o u r t d e n i e d a l l t h r e e b a s e s , C a s t e l l a n o s - S a l a z a r a p p e a l e d a l l t h r e e d e n i a l s t o t h e B o a r d , a n d t h e B o a r d a f f i r m e d t h e d e n i a l o f a l l t h r e e . O n a p p e a l t o t h i s c o u r t , C a s t e l l a n o s - S a l a z a r c h a l l e n g e s o n l y t h e d e n i a l o f h i s a p p l i c a t i o n f o r a s y l u m . S e e R e p l y B r i e f f o r t h e P e t i t i o n e r a t 1 ( “ M r . C a s t e l l a n o s c o n c e d e s [ t h a t h e ] h a s n o t r a i s e d a s i s s u e s o n a p p e a l p a s t p e r s e c u t i o n o r t h a t h e i s e l i g i b l e f o r w i t h h o l d i n g o r p r o t e c t i o n u n d e r t h e C o n v e n t i o n A g a i n s t T o r t u r e . ” )

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the fliers/pamphlets. Castellanos-Salazar claims multipl e such calls eac h day for the duration of his employ ment. Castellanos-Salazar testified that he did not know who made the calls or wher e the calls wer e coming from, but suspecte d that the calls came from som eone in the army beca use the c aller use d

a “command voice.” Castellanos-Salazar informed the public minist ry and the arc hbishop’s office about these calls but does not believe that they investiga ted. No threa t was ever car ried out ag ainst Castellanos-Salazar; he was never confr onted in person or harme d in any way . But, due to the fea r instil led by the threa tening telephone calls, Castellanos-Salazar fled to the United S t at es in ear ly 2005. He testified tha t he does not believe he could now be safe any wher e in Guate mala. Following his r emoval hear ing, the I J found Castellanos-Salazar “not to be a fully cre dible witness.” The I J cited three rea sons for this finding : (1) Castellanos-Salazar told the Bor der Patrol Ag ent at t h e t ime of his arr est that he had come to the United States to work and had no fea r of returning to Guatema la; (2) Castellanos-Salazar testified at the hear ing that he rec eived two or three threa tening calls per day , but in his earlier written st atement he asser ted eight t o ten calls per day ; and (3) Castellanos-Salazar testified at the hear ing that he repor ted the threa ts “eve ry so often,” but in his earlier

written statement he said he repor ted them about “twice a month.” The I J conclude d that these discrepa

ncies and inconsistencies “g o to the hear t of his claim” beca

use they “conc ern the
very rea son he said he c ame to the United States.” The I J also deter

mined that Castellanos-Salazar could not prove past perse cution beca use he had suffe red no phy sical harm. I n fac t, it appea red that no attempt was e ver ma de to car ry out a ny of the threa ts. The I J deter mined that Castellanos-Salazar could not prove an objectively rea sonable

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fea r of future per s ec u t i o n beca use he was never actua lly harme d or even fac ed with harm despite

rec eiving two to ten threa tening calls per day for a p er i o d o f four or five y ear s. The I J classified these thre atening phone ca lls as “sy stematic har assment but not persec ution.” When the I J denied his application, Castellanos-Salazar appea led to the BI A. The BI A found that “the principal shortcoming s and inconsistencies cited by the I mmigra tion Judge are prese nt in the rec ord, are substantial and g o to the hear t of t h e re s p o n dent’s claim, and have not been adequately explained by the responde nt.” Moreove r, the BI A ag ree d that Castellanos-Salazar could

not show past perse cution or that the threa tening calls wer e “fro m p ersons the g overnme nt of
Guatema la is unwilling or unable to control.” There fore , even if Castellanos-Salazar wer e cre dible, the B I A conc luded that he c ould not satisfy the burde n of proving himself elig ible for a sy lum. Castellanos-Salazar appea led to this court, arg uing that the I J and BI A err ed by finding him

not cre dible and by holding that he had failed to prove a well-founde d fe ar of future perse cution. Castel l an os-Salazar arg ues that the discrepa ncies and inconsistencies in his testimony wer e immaterial, attributable to nervousne ss or misunderstanding of the questions, or possibly due to the interpre ter. He contends that his hear ing testimony was cred i b l e an d, when coupled with the

tes t i m o ny of his expert witness (an expert on curr ent conditions in Guatema la), establishes an objectively

rea sonable, we ll-founded f ear of future perse cution sufficie nt to warra nt asy lum. When the BI A issues its own opinio n , we revie w the BI A’s decision as the final ag ency deter mination. Morgan v. Keisler , 507 F.3d 1053, 1057 (6th Cir. 2007). We revie w qu estions of law de novo , g ranting substantial defe renc e the BI A’s interpre tation of the statute and applicable
reg ulations; we revie w finding s of fac t to ensure that they are “supported by rea sonable, substantial, 3No. 0 9-4 38 8, Ca ste ll an os -Sa la za r v . Ho ld er

and probative evidenc e on the rec ord considere d as a whole.” INS v. Elias-Zacarias , 502 U.S. 478,
481 (1992). Under the substantial-evidenc e standard, we may not reve rse simply beca use we would have decide d differ ently

. Gishta v. Gonzales , 404 F.3d 972, 978 (6th Cir. 2005). Rather, “administrative finding s of fac t are con c lu s iv e u n le s s a ny r e a s o n able adjudicator would be compe lled to conclude to the c ontrary .” 8 U.S.C. § 1252(b)(4) (B ) (e mphasis added)

. “The dispositi on of an application for asy lum involves a two-step inquiry : ( 1) whether the applicant qualifies as a ref ug ee as define d in 8 U.S.C. § 1101(a) (42)( A), an d (2 ) whether the applicant merits a favor able exercise of discretion by the Attorney Gene ral.” Koulji nski v. Keisler , 505 F.3d 534, 541 (6th Cir. 2007) (quotati on marks omitted). “[T] o qualify as a ref ug ee,” the applicant must establish “that he or she has suffe red past perse cution on the basis of rac e, relig ion, nationality , social g roup, or political opinion; or . . . show[] that he or she has a well-founde d fea r of [future] perse cution on one of those same bases.” Id .; see also 8 C.F.R. § 1208.13(b). I f elig ible, the applicant still bear s the “burde n of establishing t h at t h e favorable exercise of discretion is

war rante d.” Koulji nski , 505 F.3d a t 542 (quotation marks omitted).
“Perse cution entails punishment or the in fl iction of suffe ring or harm, but hara ssment or discrimination without more does not rise to the level of perse cution.” Sako v. Gonzales , 434 F.3d
8 57, 862 (6th Cir. 2006) (quotation marks omitted). “[A]n applicant cannot rely on specu l at i v e conclusions or mere asser tions of fea

r of possible perse cution, but instead must offe r rea sonably specific information s ho wi n g a re al threa t of i ndividual perse cution.” Mapouya v. Gonzales , 487 F.3d 396, 412 ( 6th Cir. 2007) (quotation marks omi tted). F ear of future perse cution must be both subjectively

g enuine a

nd objectively

rea sonable. Id .; see also 8 C.F.R. § 1208.13(b)( 1)(i).

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I n the prese nt case , Castellanos-Salazar descr ibes circ umstances in which a caller threa tened
him numerous times a day for a period of four to five y ear s, but during all that time never took any action in fulfillment of those threa ts. We fi n d n o err or in the I J ’s and BI A’s decisions that the hara ssment does not demonstrate a rea l t h reat of perse cution and, there fore , Castellanos-Salazar

cannot e stablish an objectively rea sonable, we ll-founded f ear of future perse cution.
We DENY the petition for re view.

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