NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 11a0748n.06 No. 10-3296 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

DEMECIO CRISTOB AL, P etitioner ,

v. ERIC H. HOLDER, JR., AT T ORNEY GENERAL, Respondent. ) ) ) ) ) ) ) ) ) ) ) ) ON P ETIT I ON F OR REVIEW F ROM THE BOARD OF IMMIG RATION AP P EALS

BEFORE: MARTIN, CLAY , and WH ITE, Circuit Jud ges.

HELE NE N. WHITE , Circuit Judge. Demec io Cristobal, a native and citizen of Guatema la, seeks revie w of the final order of the Boa rd of I mmigration Appea ls (B I A) aff ir m i n g t h e I m migr ation J udg e’s (I J ) denial of his petition for asy lum, withholding of re moval, and protec tion under the Convention Ag ainst Torture ( CAT). We DENY the petition for re view. I

. Cristobal enter ed the United States on October 22, 1994, and filed his asy lum application in Dec ember 1994. T h e fo rmer I mmigration and Natura liz ation Service commence d remova l proce eding s ag ainst Cristobal under section 212(a) (6)( A)(i) of the I mmigration and Nationality Act (I NA), 8 U.S.C. § 1182(a) (6)( A)(i) , as an alien prese nt in the United States without being admittedNo. 10-3296

Crist obal v. Holder

o r parole d, and served C ristobal with a Notice to Appea r on April 28, 2000. Cristobal completed

a sec ond application for

asy lum in August 2000. On J une 12, 2008, an I J held a hear ing on Cristobal’s asy lum and rela ted claims. Cristobal testified that beg inning in 1980, he was forc ed to se rve as an unpaid member of the Civil Patrol as part of Guatema la’s war ag ainst leftist g uerilla org anizations. Cristobal’s primary duty was to serve

as a lookout in his home town of Huehue tenang o; he did not claim he eng ag ed in arme d conflict with g uerr illas as part of his ser vice. I n J uly 1991, Cristobal had a family reunion at his house. During that reunion, twenty arme d members of a g uerr illa g roup arr ived and demande d to know why C ri stobal and his family wer e helping the army rathe r than fig hting with the g uerr illas. The g uerillas told Cristobal that things had to chang e and t h re atene d to come back and take Crist obal and his family by forc e. The gue rrillas left whe n they

hear d dog s barking , and Cristobal and his family wer e not phy sically

harme d. Not long afte r that incident, Cristobal moved his family to the capital city , wher e he lived for four y ear s befor e leaving for the United State s . C ri stobal did not find his stay in Guatema la City peac eful beca

use of its many problems, including a high murder rate

. He testified he was afr aid to return to Guatema la beca

use “ther e’s no peac e. There ’s alway s problems there .” He said he hear d

case s of people who returne d and who wer e killed, an d t h at t h e people who took the side of the g uerr illas would rec og nize members of the Civil Patrol and cre ate problems for them. Cristobal did not testify that he fa ced a

ny specific incidents during his stay in Guatemala

City

. T h e I J found that Cristobal’s acc ount of the single incident at his family reunion di d n o t establish past p er s ec u t i o n. Additionally , beca use Cristobal was able to avoid problems with the -2-No. 10-3296

Crist obal v. Holder g uerr illas by moving to the capital, the I J found he had not shown that his fea r of the g uerr illas exis ted country -wide. The I J further found that Cristobal’s “fe ar of harm beca use of his prior civil patrol membership is now too remote to support a well-founde d fea r of perse cution,” particularly beca use his role in the Civil Patrol “wa s not so signific ant, that he would now be recog nized as a person who had opposed the g uerillas, particula rly in are as other t h an his hometown.” The I J t h erefore denied Cristobal’s application for asy lum and rela ted relief and order ed his remova l t o Guatema la. On J une 25, 2008, Cristobal timely appea led the I J ’s dec ision to t he B oard of I mmigration Appea l s . On Fe b ruar

y 17, 2010, the BIA ag ree d with the I J ’s conclusions that Cristobal had not established past perse cution or a well-founde d fea r of future perse cution and dismiss ed Cristobal’s appea l. I n finding that Cristobal had failed to e stablish pa st pe rsec ution, the BIA reiter ated that in the s ole encounter Crist obal had with g uerr illa forc es, “no one wa s harmed, and t he guer rillas left beca use they hear d dog s barking .” The BIA added that Cristobal lived in Guatema la City “for four y ear s without incident” befor e coming to the United States. In reje cting Cristobal’s claim of a wellfounded fea

r of future perse cution, the BIA conclude d that the news acc ounts submitt ed by Cristobal did not establish a we ll-founded fea r beca use they rela ted to g ener al country conditions and contained scant evidenc e that former Civil Patrol members have been subjected to mistreatment by former g uerr illas. On Marc h 16, 2010, Cristobal timely filed a petition for revie w of the BIA’s order dismiss ing Cristobal’s appea l.

-3-No. 10-3296

Crist obal v. Holder I I

. The I J , acting for the Attorney Gene ral, has discretion to g rant asy lum to any alien who qualifies as a “r ef

u gee . ” Y u v. Ashcroft , 364 F.3d 700, 702 (6th Cir. 2004) (citing 8 U.S.C. § 1158(b))

. A refug ee is an alien w ho is unable or unwilli ng to return to his home country “bec ause of perse cution or a well-founde d fea r of perse cution on acc ount of rac e, relig ion, nationality , membership in a pa

rticular soc ial g roup, or political opinion.” 8 U.S.C. § 1101(a) (42)( A). Cristobal a

rg ues that the BIA err ed in f inding that he failed to e stablish pa st pe rsec ution or

a well-founde d fea

r of future perse cution. This C o urt “re view[s] administrative finding s of fac t, such as whether an alien qualifies as a refug ee, under t h e s ubstantial evidenc e st andar d.” Singh v. Ashcroft , 398 F.3d 396, 400 (6th Cir. 2005). “Such finding s are ‘conc lusive unless any rea sonable adjudicator wou ld be compelled to conclude to the contra ry .’” Id. (citing Y

u , 364 F.3d at 702). Where the BIA adopts the I J ’s rea soning, this Court revie ws those aspec ts of the I J ’s decisi on direc tly

. Id. at 401. A. Past Persec ution Persec ution is “the infliction of harm or suffe ring by the g overnme nt, or persons a g overnme nt is unwilling or unable to contr ol, to overcome a cha rac teristic of the vi ctim.” Khalil i

v. Holder , 557 F.3d 429, 435 (6th Cir. 2009) (quoting Pilica v. Ashcroft , 388 F.3d 941, 950 (6th Cir. 2004)) (interna l quotation marks omitted). Persec ution “re quires more than a few isolated incidents of verba l hara ssment or intimi dation, u n a c c o mp a n ie d b y a ny p hy s ic a l punishment, infliction of harm,

or s i gnificant depriva tion of liberty .” Japarkulov a v. Holder , 615 F.3d 696, 699 (6th Cir. 2010) (quoting Mikhailev itch v. IN S , 1 4 6 F. 3d 384, 390 (6th Cir. 1998)) (finding that a threa t by a -4-No. 10-3296

Crist obal v. Holder g overnme nt minist er to arr ang e a fata l “ac cident” if the applicant did not abandon eff orts to expose g overnme nt corr

uption did not amount to perse cution standing alone, p ar t i cular ly wher e the applicant stay ed in her country for sever al more y ear s without suffe ring any phy sical mistreatment). Although “phy sical abuse is not an absolute prer equisite to a finding of perse cution, ” i d

. at 700, threa ts by t h em s el v es will only amount to perse cution in exceptional case s. Id. at 701. “Only ‘t h re at s of a most immediate and menac ing nature ’ can possibly qualify as past perse cution.” Id

. (citing Boyk

ov v. I NS , 109 F.3d 413, 416 ( 7th Cir. 1997)). He re, Cristobal was not phy sically harme d by the g uerr illa g roups at any point d u ri n g h i s service in the Civil Patrol. The evidenc e sug g ests he was subjected to only one threa tening incident in which g uerr illa members ang rily told Cristobal they would forc ibly conscr ipt him and his family members at some later date and might have harme d them if barking dog s had not scar ed them awa y . The threa t that Cristobal fac ed was cer tainly not “of a most immediate and menac ing nature ” such that it could qualify by itself as past perse cution. There fore, the BIA’s conclusion that Cristobal failed to e stablish past persec ution is clearly supported by

substantial evidence

. B. Well-F ounded F ear

of F uture Prosec ution An applicant has a well-founde d fea r of perse cution if “(1) he or she has a fea r of perse cution in his or her coun t ry o n ac co u nt of rac e, relig ion, nationality , membership in a particula r social g roup, or political opinion; (2) there is a reasonable possibili ty of suffering such persecution i f he

or she wer e to return to that country ; and (3) he or she is unable or unwilling to return to that country beca use of such fea

r.” Mikhailev it ch , 1 4 6 F.3d at 389 (citing 8 C.F.R. 1208.13(b)( 2)(i))

. “To establish that his fea

r of perse cution is well-founde d, a petitioner must prese nt specific fac ts which -5-No. 10-3296

Crist obal v. Holder demonstrate actua l perse cution or establish ‘g ood rea son to fea r perse cution on one of the specifie d g rounds.’” Dolores v. INS , 772 F.2d 223, 226 (6th Cir. 1985) (quoting Carvajal-Munoz v. INS , 743 F.2d 562 (7th Cir. 1984)). The applicant “nee d not prove that it is ‘more likely than not’ that he or she will be per s ecute d in his or her own country .” INS v. Cardoza-Fonseca , 480 U.S. 421, 449 (1987). An applicant does not have a well-founde d fea r if he or she “could avoid perse cution by reloc ating to another part of the applicant’ s country

. . . if under all circ umstances it would be

rea sonable to expect the a pplicant to do so.” 8 C.F.R. 1208.13(b) (2)( ii). I n support of his contention that he may be harme d on acc ount of his previous membership in the Civil Patrol, Cristobal offe red a varie ty of news acc ounts and human rig hts repor ts of violence in Guatema la. Howeve r, the article s wer e larg ely irrele vant to the subject of how former Civil Patrol members are trea ted by g uerr illas. Among the news article s provided by Cristobal, most of which

are m o re t h an t en y ear s old, the most rele vant information is in a 2007 U.S. Depa rtment of State Country Report on Guatema la, which descr ibed “socia l clea nsing” g roups alleg ed to include former soldiers and g uerr illas that had committed at least thirty murders in the town of Santiag o Atitlan. But the repor t does not provide any evidenc e that the violence targ eted former Civil Patrol members such

as Cristobal or that otherwise would put Cristobal in more dang er than anyone else in the country

. Additionally , the news acc ounts provide no evidenc e that such murders are occur ring in his former town of Hue huetena

ng o. Cristobal also stated that former g uerr illa members would rec og nize and cre ate problems for former Civil Patrol members. B ut the I J found Cristobal’s fe ar of harm too remote to constitute a well-founde d fea

r of pe rsec ution, particularly in light of his long a

bsence from Gua

temala a nd his -6-No. 10-3296

Crist obal v. Holder limit ed role in the patrol, which “wa s not so signific ant, that he would now be rec og nized as a person who had oppose d the g uerillas, par ticularly in are as other tha

n his hometown.” Cristobal argues t hat even if the evidence provided of t he possi bility of futur e p ersecution

was weak, it wa s s u ff

icient to meet the well-founde d fea r standard, which does not require an applicant to show a high likelihood of perse cution. Howeve r, althoug h Cristobal believes he will 1 b e re co gn i z ed in his hometown as a supporter of t he army , he does not provide specific facts t h at establish a g ood rea son to fea r he will be perse cuted, particula rly beca use of the passag e of time, his limit ed role in the Civil Patrol, and the absenc e of past perse cution. Nor does Cristobal establish that there is a rea sonable possibili ty that he would be perse cuted i n t o wn s other than his own. Once Cristobal moved to Guatema la City , he fac ed neither perse cution nor any other threa tening incidents

on acc ount of his me mbership in the Civil Patrol. Acc ording ly , substantial e vidence supports the 2

Cristobal relies heavily on dicta in INS v. Cardoza-Fonseca , 480 U.S. 421 (1987), to arg ue 1 that a ten pe rce nt chanc e of pe rsec ution establishes a well-founded fe ar of perse cution. Howeve r, that case held that asy lum applicants need not show a clea r probability of perse cution to meet their burden. Cardoza-Fonseca , 480 U.S. at 430. And althoug h the Supreme Court reje cted the view that “bec ause an applicant only has a 10% chanc e of being shot, tortur ed, or otherwise perse cuted, that he or she has no ‘we ll-founded f ear ’ of the e vent happe ning,” Cardoza-Fonseca , 480 U.S. at 440, the Court took the ten perc ent fig u re fr o m a hy pothetical country in which one in ever y ten adult males is put to death or sent to a remote labor camp. See Id. at 431. The hy pothetical assumed that a g roup is actua lly being perse cuted, even though t he chanc e that any g iven individual will be perse cuted is ten perc ent. Cardoza-Fonseca did not alter the rule that applicants must establish that perse cution is a rea sonable possibili ty

. Id. at 440 (citing INS v. Stevic , 467 U. S

. 4 0 7 , 424–25 (1984))

. Cristobal also argues he does not need to show he would be single d out individually for

2 perse cution if there is a pattern or prac tice of perse cution of simil arly situated individuals. Cristobal reque sts this Court to reve rse the BIA’s decision on the basis that it did not proper ly addre ss whether there was a pattern or prac tice of such perse cution. Howeve r, the BIA did find that Cristobal offe red scant evidenc e of any mistreatment of members of the Civil Patrol. This finding indicates, a fortiori , -7-No. 10-3296

Crist obal v. Holder conclusion of the BIA that Cristobal has failed to establish a well-founde d fea r of future prosec ution

on acc ount of his past service in the Civil Patrol. C. Be cause substantial evidence supports the conc lusions that Cristobal did not establish past perse cution or a well-founde d fea r of future perse cution, Cristobal fails to satisfy the burden of proof for his asylum claim. I I I

. I n light of the fore g oing dis cu s s i on, we DENY Cristobal’s petition for revie w of the BI A decision dismissing his application for asy lum and rela

ted re lief.

that the BIA found Cristobal did not establish any pattern or prac tice of perse cution of members of the Civil P atrol. -8-