United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 07-2126

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Roberto Basilo Castro-Pu, *

*

Petitioner, *

*

v. * Petition for Review of an Order

* of the Board of Immigration Appeals.

Michael B. Mukasey, Attorney General *

of the United States of America, *

*

Respondent. *

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Submitted: April 18, 2008

Filed: August 28, 2008

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Before LOKEN, Chief Judge, JOHN R. GIBSON and MELLOY, Circuit Judges.

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LOKEN, Chief Judge.

Roberto Basilo Castro-Pu, a native and citizen of Guatemala, entered the United

States in June 1991 without inspection. Deportation proceedings commenced two

days later. He conceded deportability and timely applied for asylum, withholding of

deportation (now removal), and relief under the Convention Against Torture (CAT),

claiming a well-founded fear of persecution by the Guatemalan army and government

if repatriated due to his ethnicity and political opinions. See 8 U.S.C.

§ 1101(a)(42)(A). Castro-Pu petitions for review of the final order of the Board of

Immigration Appeals (BIA) denying all relief. After careful review of the lengthy

administrative proceedings, we deny the petition for review.
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I. The Administrative Proceedings

In his asylum application and in testimony at the first asylum hearing in 1991,

Castro-Pu, a member of the Quiche indigenous ethnic minority, claimed fear of

persecution in Guatemala based on two series of events. In 1988, while serving in the

Civil Defense unit in his home village in Quiche Province, his unit was ordered to

help bury twenty-three indigenous refugees from a nearby village that the army had

massacred as suspected guerillas. Castro-Pu did not obey and then refused to report

for further Civil Defense duties despite his leader’s warning that the army, which

controlled Civil Defense forces, would treat him as a guerilla unless he returned to

duty. Instead, Castro-Pu fled to Guatemala City with his wife and child, where he

worked in 1989 and then enrolled in San Carlos University in 1990, without incident.

By early 1991, Castro-Pu had become an organizer of a student group that regularly

protested government and military corruption and human rights abuses. In February

and again in May, 1991, four unknown men came to his home when Castro-Pu was

not there, frightening his wife. The first time they asked where he was, what he was

doing, and why he had left his home village. The second time, they said they wanted

to talk to him about a problem they described as urgent. Suspecting that the army was

looking to kidnap and kill him because of his disobedience in 1988 and his more

recent student protest activities, Castro-Pu fled to the United States. 

The immigration judge (IJ) denied Castro-Pu’s application. The IJ found

“credible and persuasive” his testimony about his activities in Guatemala, including

forcible recruitment into the Civil Defense force and human rights abuses by both

government forces and the guerillas. However, the IJ found that Castro-Pu did not

meet his burden of proving a well-founded fear of future persecution because he did

not establish “that the government of Guatemala has the inclination to persecute him.”

The IJ noted that Castro-Pu remained in his home village for one month after refusing

to serve in the Civil Defense in 1988, where the army could easily have found him.

Later, his father told the military that he had moved to Guatemala City, and many
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friends knew where he was, yet he was not harassed. Finally, he presented no

evidence of the identity of the men who visited his home in February and May 1991,

and no evidence the visits were connected. The February visitors knew where CastroPu lived yet made no further attempt to contact him, and he remained in Guatemala

City unharmed for a month after the May visit. 

Castro-Pu timely appealed to the BIA, arguing that he was eligible for asylum

and withholding of deportation to Guatemala because the record established a wellfounded fear of future persecution. A divided BIA panel dismissed the appeal in

December 1999, almost eight years later. Relying on a February 1999 Department of

State report, Guatemala Country Report on Human Rights Practices for 1998, the BIA

dismissed Castro-Pu’s appeal because “sweeping changes” in country conditions had

rendered his fear of future persecution “less, rather than more, well-founded.” The

BIA noted that peace accords ended the lengthy civil war; free and fair elections were

held in 1995 and 1996; and the government showed willingness to arrest and

prosecute those responsible for extrajudicial killings and human rights abuses,

instituted “significant reforms to better the plight of indigenous peoples,” and

increased its tolerance of peaceful demonstrations and civil associations. The

dissenting panel member concluded that Castro-Pu should have been granted asylum

in 1991 and argued that the majority denied Castro-Pu due process by dismissing the

appeal without affording him an opportunity “to address, explain, or rebut” the

reported changed country conditions. 

Castro-Pu did not seek judicial review, apparently because his former attorney

failed to notify him of the BIA’s adverse decision. But when arrested for removal in

mid-2000, he petitioned the district court in St. Louis to grant a writ of habeas corpus,

arguing the BIA denied him due process by failing to provide an opportunity to rebut

the evidence of changed country conditions. Agreeing with the BIA dissenter, the

district court granted the writ and remanded to the agency “for a new hearing so that

Petitioner may respond to the evidence of changed country conditions.” Castro-Pu v.
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Ashcroft, No. 4:00CV1182 (E.D. Mo. judgment Mar. 22, 2001). The BIA then

vacated its 1999 decision and remanded the case to the immigration judge “for a

further hearing consistent with the [district] court’s decision.” 

A second series of hearings was held in 2005. After the prior administrative

record and the Department of State’s Guatemala Country Report on Human Rights

Practices for 2004 were placed in the record, counsel for Castro-Pu first called the

Director of the Immigration Law Project at Legal Services of Eastern Missouri to

testify as an expert on current country conditions in Guatemala. The IJ ruled that the

witness was not an expert and excluded her opinion testimony on country conditions

because she lacked relevant academic credentials and last visited Guatemala in 1989.

Castro-Pu then testified that he was still afraid that the government or the army would

find him anywhere in the country and kill him if he returned because of “the previous

problem.” He based this present fear on the 2004 Country Report, his general

familiarity with conditions in Guatemala, and phone contacts with family members

still in that country. Expressly adopting the initial 1991 IJ decision and the vacated

1999 BIA decision, the IJ denied all relief, finding that Castro-Pu “has presented very

little evidence concerning the changed country conditions in his native country” and

“no evidence that anyone is seeking him out any longer.” The BIA dismissed CastroPu’s timely administrative appeal. This petition for review followed.

II. Discussion

A. Castro-Pu first argues that the BIA erred in denying relief on the merits

because he proved a well-founded fear of future persecution based on his ethnicity and

political opinions. He bases this argument on a faulty premise, namely, that the BIA’s

1999 decision and the district court’s grant of habeas relief “presupposed” that he

established either past persecution or a well-founded fear of future persecution in

1991. To the contrary, Castro-Pu’s attorney did not even argue past persecution in the

1991 proceedings, no doubt because Castro-Pu was not harmed in either 1988 or
1

These circumstances distinguish Castro-Pu from the Guatemalan petitioner in

Corado v. Ashcroft, 384 F.3d 945 (8th Cir. 2004), who claimed far worse treatment

and advanced a timely past persecution claim to the agency. 

2

The BIA was on sound ground in ruling that changed country conditions after

an asylum applicant left his native country are relevant to whether he currently has a

well-founded fear of future persecution. See Regalado-Garcia v. I.N.S., 305 F.3d 784,

788 (8th Cir. 2002); Menjivar v. I.N.S., 259 F.3d 940, 942 (8th Cir. 2001). 

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1991, and the IJ’s 1991 decision explicitly rejected his claim of a well-founded fear

of future persecution. In dismissing Castro-Pu’s appeal in 1999, the BIA majority did

not address the merits of that ruling, instead relying on significantly changed country

conditions in rejecting his claim of a well-founded fear. Nor did the district court

address the well-founded fear issue on the merits. Rather, the court remanded for the

limited purpose of affording Castro-Pu an opportunity to respond to the changed

country conditions that were the basis of the BIA’s 1999 decision. 

Castro-Pu goes on to argue that, because he proved past persecution, the BIA

erred in not presuming a well-founded fear of future persecution and “wrongly placed

the burden of proof on the changed country conditions issue on [Castro-Pu] rather

than the Government.” Again, the premise is faulty. Castro-Pu did not raise the issue

of past persecution in 1991, and therefore that issue was not properly exhausted. See

Etchu-Njang v. Gonzales, 403 F.3d 577, 583 (8th Cir. 2005).1 The second hearing

was held to give him an opportunity to refute the evidence of changed country

conditions that caused the BIA to find in 1999 that he did not have a well-founded fear

of future persecution.2

 The IJ found that he failed to refute that evidence and

reinstated the denial of relief. The BIA agreed. We review that decision under the

substantial evidence standard and must uphold the agency’s decision unless “the

evidence [Castro-Pu] presented was so compelling that no reasonable factfinder could

fail to find the requisite fear of persecution.” Miah v. Mukasey, 519 F.3d 784, 787

(8th Cir. 2008) (quotation omitted); see Fisher v. I.N.S., 291 F.3d 491, 496 (8th Cir.

2002) (standard of review in proceedings begun before April 1, 1997).
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The BIA acknowledged that recent Department of State reports reflect “a

certain level of civil strife in Guatemala” but agreed with the IJ that Castro-Pu failed

to show “a particularized risk of persecution on account of a protected ground” that

would establish either a well-founded fear of persecution making him eligible for

asylum or the withholding of removal, or a likelihood of torture warranting relief

under the CAT, see 8 C.F.R. § 1208.16(b) & (c). Substantial evidence in the

administrative record as a whole supports this decision. Castro-Pu was not harmed

during or after the incidents in 1988 and 1991, his immediate family has remained in

Guatemala unharmed, and he failed to rebut the substantial evidence that political and

human rights conditions dramatically improved after he left the country. Therefore,

we deny the petition to review the agency’s denial of relief on the merits.

B. Castro-Pu next argues that the IJ and the BIA erred in denying his motion

to terminate the administrative proceedings, which would have resulted in the agency

commencing a new removal proceeding in which Castro-Pu could seek cancellation

of removal under 8 U.S.C. § 1229b(b). This procedure, known as “repapering,” is a

response to the impact of complex changes to the immigration laws on pending

deportation proceedings. See generally Rojas-Reyes v. I.N.S., 235 F.3d 115, 119-26

(2d Cir. 2000). The procedural setting is complex, but the answer to Castro-Pu’s

contention is not. The argument fails because we lack jurisdiction to review the

Attorney General’s discretionary decision not to repaper a particular case. See Mateo

v. Ashcroft, 102 Fed. Appx. 519, 520-21 (8th Cir. 2004) (unpublished per curiam),

citing 8 U.S.C. § 1252(g) and 8 C.F.R. § 1240.16. Here, the Department of Homeland

Security (which has assumed the prosecutorial functions of the former Immigration

and Naturalization Service) declined to exercise its repapering discretion, and the BIA

concluded it had no authority to compel repapering. Castro-Pu’s argument that this

was a denial of due process is without merit. See Rojas-Reyes, 235 F.3d at 125. 

C. Finally, Castro-Pu argues that the BIA abused its discretion and denied him

due process by refusing to allow his expert witness to testify and then denying his
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motion for a continuance so he could find another expert on changed country

conditions. To be entitled to relief on due process grounds, a petitioner must show

fundamental unfairness and prejudice, that is, that the outcome of the proceeding may

well have been different absent the procedural irregularity. Tun v. Gonzales, 485 F.3d

1014, 1025-26 (8th Cir. 2007). In Tun, we remanded because the IJ excluded

testimony by two experts, a physician, whose examination of petitioner tended to

corroborate his testimony of torture by Burmese authorities, and a professor, whose

published works and frequent travels to Burma qualified him as an expert on current

country conditions. 485 F.3d at 1026-29. Here, the IJ had good reason to find that the

witness was not qualified to provide expert testimony on current country conditions

in Guatemala, unlike the excluded experts in Tun. Moreover, the witness’s testimony,

as set forth in an offer of proof the IJ included in the administrative record, consisted

of general, subjective opinions that would have added little or nothing to the evidence

of changed country conditions contained in the Department of State reports. Thus,

Castro-Pu failed to show either an abuse of discretion or prejudice. We have no

jurisdiction to review the IJ’s discretionary denial of a continuance. Grass v.

Gonzales, 418 F.3d 876, 879 (8th Cir. 2005), cert. denied, 547 U.S. 1079 (2006). 

For the foregoing reasons, we deny the petition for review.

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