* After examining the briefs and appellate record, th is panel has determined

unanimously that oral argument would not materially assist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). Th e case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines o f law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 26 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SERGIO ALBERTO RANGEL QUINONEZ and ESTHER CRISTINA CAMACHO MIMENDY,

Petitioners, No. 03-9541 (Petition for Review) (Nos. A77-868-231/232)

v. JOHN ASHCROFT,

Respondent.

ORDER AND JUDGMENT *

Before TACHA, Chief Judge, BRISCOE , and HARTZ , Circuit Judges.
Petitioners Sergio Alberto Rangel Quinonez and Esth er Cristina Camacho Mimendy, appeal the March 6, 2003, decision by the Board of Immigration Appeals (BIA), affirming the order of an immigratio n judge (IJ) ordering their removal from the United States. We exercise jurisd iction under 8 U.S.C.-2-

§ 1252(a), see Tsevegmid v. Ashcroft , 336 F.3d 1231, 1235 (10th Cir. 2003), and affirm.
I. BACKGROUND Petitioners are natives and citizens of Colombia wh o were admitted to the United States as nonimmigrants on June 20, 1999. T hey were authorized to remain in the country until September 19, 1999, butremained without authorization beyond that date. At a hearing befor e the IJ on April 25, 2000, Petitioners conceded removability, but applied for asylum and restriction on removal under §§ 208 & 241(b)(3) of the Immigrationand Nationality Act (INA), and withholding of removal under the Convention aga inst Torture. Ms. Camacho Mimendy is married to Mr. Rangel Quinonez, and her claims are derivative of his. The IJ rejected Petitioners’ applications for asylu m, restriction on removal, and withholding of removal, and ordered their remov al from the United States. The BIA affirmed without opinion. On appeal Petitioners challenge the denial of their claims for asylum and restriction on removal They do not contest the rejection of their claim under the Convention again st Torture. A. Applicable Law Asylum and restriction on removal are the two avail able means of relief under the INA to an alien who fears persecution if returned from the United States to a particular country. Wiransane v. Ashcroft , No. 02-9555, 2004-3-

U.S. App. LEXIS 8259 at *2 (10th Cir., Apr. 27, 20 04). “A grant of asylum permits the alien to remain in this country; a rest riction on removal forbids removal of the alien to the country where persecuti on may occur.” Id

. In order to be eligible for asylum, an alien must f irst establish his status as a refugee. 8 U.S.C. § 1158(b)(1). To do so, he mu st show that he “is unable or unwilling to return to, and is unable or unwilling to avail himself . . . of the protection of, [his country of origin] because of p ersecution or a well-founded fear of persecution on account of race, religion, n ationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42). Aliens who, like Petitioners, base their asylum claims upo n a well-founded fear of future persecution “must show both a genuine, subjective f ear of persecution, and an objective basis by credible, direct, and specific e vidence in the record, of facts that would support a reasonable fear [of] . . . per secution.” Wiransane , 2004 U.S. App. LEXIS 8259 at *5 (internal quotation marks omi tted). In order to obtain a restriction on removal, Mr. Ra ngel Quinonez must show that his “life or freedom would be threatened in [C olombia] because of [his] race, religion, nationality, membership in a particular s ocial group, or political opinion.” INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3 )(A). “The Attorney General may not remove an alien if the alien is able to est ablish a clear probability of persecution in the country to which he would be ret urned.” Wiransane , 2004 U.S.-4-

App. LEXIS 8259 at *6 (internal quotation marks omi tted). “The standard of proof for restriction on removal is more demanding than the well-founded fear standard applicable to an asylum claim. Thus, when an applicant fails to establish the objective component of a well-founded fear of p ersecution, he necessarily fails to establish entitlement to restriction on re moval.” Id. at *6–*7 (internal quotation marks and citations omitted). B. Facts and Proceedings Below Mr. Rangel Quinonez contends that he suffered polit ical persecution giving rise to a fear of future persecution in the course of events surrounding an attempted abduction by unidentified anti-governmentguerillas on March 9, 1999. At the time, he was a personnel manager at his fath er’s car dealership in Bucaramanga, Colombia. He attributes the abduction attempt to his earlier refusal to comply with a demand by a man who visited him atthe dealership and “identified himself as a member of a guerilla group .” R. at 110. The demand was “to let one of their . . . people come in to wo rk in the enterprise.” Id

. Mr. Rangel Quinonez testified that for about a weekafter the failed abduction he hid at his father’s home in the hills above Bucaram anga, and then went with his wife and daughter to Miami, Florida. He returned t o Colombia a week and a half later, thinking that he could live in the country i f he had a security service.-5-

Threatening follow-up phone calls, however, convinc ed him otherwise, and he returned to the United States on June 20, 1999. Although Mr. Rangel Quinonez testified that the fir st visitor identified himself as a guerilla, he provided no evidence thatthe men involved in the abduction attempt were guerillas—other than the ass ertion that in Colombia “the common criminals [are] always asking to steal moneyor a car or something,” whereas guerillas typically attempt abductions. Id. at 114. Further, the only link Mr. Rangel Quinonez made between these two incident s and his political opinions was the assertion that guerillas in Colombia “try t o place people in a business to convince the workers to come over to . . . the guer illas’ beliefs[,]” id . at 111–12, and that when he refused the initial demand to hire an operative, he “told [the guerillas] that [his] political views were not in a ccordance with their political views.” Id. at 111. The IJ noted, however, that Mr. Rangel Qui nonez “testified that he has never belonged to a political party or donated any money to a political organization,” and that “it does not appear that hi s father has been politically active either.” Id . at 68. The IJ denied Petitioners’ asylum claim because he found that Mr. Rangel Quinonez showed neither a subjective nor an objecti ve fear of persecution in Colombia on the basis of his political opinion. Wi th respect to Mr. Rangel Quinonez’s subjective fear, the IJ based his findin g on Mr. Rangel-Quinonez’s-6-

return to Colombia only 10 days after his first ent ry into the United States, as well as his testified-to knowledge that his parents and brothers were living safely in Colombia. As for the objective element of the asylum claim, t he IJ found that Mr. Rangel Quinonez had not “establish[ed] the nexu s between the harm which he suffered and which he fears and any of the protecte d grounds.” Id. at 73–74. First, the IJ found that Mr. Rangel Quinonez’s desc ription of the visit by the guerilla operative did not “show[] that [he] has be en targeted for persecution” because “[w]e do not know from [his] version of eve nts who wanted him to hire somebody or why they wanted [him] hired.” Id. at 74. The IJ also found that Mr. Rangel Quinonez had failed to show that the att empted abduction was made on account of his political beliefs, because he “di d not have any expressed political opinion” beyond his testimony in the hear ing that he believed in “liberty,” which amounted to a “political opinion . . . so vague that . . . [he] did not have a meaningful political opinion which anyon e would be interested in changing.” Id. at 74–75. Finally, the IJ found that Mr. Rangel Qu inonez’s testimony as to the threatening phone calls after t he attempted abduction was “less than persuasive,” because, again, he did not identify the callers or provide any details about the calls. Id. at 74.-7-

With respect to Petitioners’ restriction-on-removal claim, the IJ said that “[b]ecause [Mr. Rangel Quinonez] has failed to esta blish that he meets the definition of refugee, he has failed to satisfy the higher burden of proof for withholding of removal . . . .” Id . at 76. Petitioners challenge the IJ’s adverse asylum deter mination, contending that he erred in finding no “nexus between the harm whic h [Mr. Rangel Quinonez] suffered and which he fears and any of the protecte d grounds,” Aplt. Br. at 5, because the IJ erroneously found that (1) Mr. Range l Quinonez did not possess a meaningful political opinion sufficient to attract political persecution; (2) his kidnappers did not have a political motive in attempting to kidnap him; (3) Mr. Rangel Quinonez failed to establish the identity of his would-be kidnappers as guerillas; and (4) “security precautions are suf ficient in Bucaramanga, Colombia” to live free of harm . . . .” Id . They also assert that the IJ erred in denying their restriction-on-removal claim.
II. DISCUSSION “Where . . . the BIA summarily affirms or adopts an immigration judge's decision, this court reviews the judge's analysis a s if it were the BIA’s.” Tsevegmid, 336 F.3d at 1235. Our standard of review is hig hly deferential: “We review the IJ’s resolution of the initial refugee s tatus question under a substantial evidence standard.” Yuk v. Ashcroft , 355 F.3d 1222, 1233 (10th Cir. 2004). This-8-

means that the IJ's adverse asylum decision “must b e upheld if supported by reasonable, substantial and probative evidence on t he record as a whole.” Krastev v. INS, 292 F.3d 1268, 1275 (10th Cir. 2002). We hold th at the record supports the IJ’s holding that Mr. Rangel Quinonez failed to make the requisite showings to be eligible for asylum or restriction on removal under the INA. Guerilla targeting of an innocent civilian for non- political reasons does not in itself amount to political persecution for the p urposes of an asylum claim. See INS v. Elias-Zacarias , 502 U.S. 478, 482 (1992) (fact that “the guerilla s seek to fill their ranks in order to carry on their war aga inst the government and pursue their political goals . . . does not render . . . f orced recruitment ‘persecution on account of . . . political opinion.’” (internal cit ation omitted)); Ustyan v. Ashcroft , No. 02-9596, U.S. App. LEXIS 6814, at *4 (10th Cir. , April 8, 2004). Even assuming that the men who visited, attempted to kid nap, and later called Mr. Rangel Quinonez were guerillas, their use of fo rce to place an operative in his employ (or to kidnap him for ransom) does not amount to political persecution if that attempt was made without regard to his politic al opinions. Although Mr. Rangel Quinonez told the first alleged guerillathat he did not share the guerillas’ views, this expression of opinion (probably held by most of his compatriots) was not necessarily the reason for his persecution. Cf. EliasZacarias , 502 U.S. at 483 (“[Petitioner] appears to argue t hat not taking sides-9-

with any political faction is itself the affirmativ e expression of a political opinion. That seems to us not ordinarily so . . . .”). Afte r all, Mr. Rangel Quinonez had not distinguished himself from the general populace by participating in any political activity. It was not unreasonable for th e IJ to find that the guerillas’ interest in him was not his rather vague political views but something else, such as his wealth or his position in the car dealership

. Hence, we affirm the IJ’s adverse asylum determination on the ground that Pet itioners failed to show that any persecution of Mr. Rangel Quinonez was based onhis political opinions. It is therefore irrelevant whether the IJ erred in findin g that Mr. Rangel Quinonez had failed to establish that his assailants were in fac t anti-government guerillas. Likewise, whether Mr. Rangel Quinonez could live sa fely in Colombia is irrelevant. Because we affirm the IJ’s holding that Mr. Rangel Quinonez failed to establish the objective component of a well-founded fear of persecution for the purpose of his asylum claim, he necessarily failed to establish his (and his wife’s) entitlement to restriction on removal. See Batalova v. Ashcroft , 355 F.3d 1246, 1255 (10th Cir. 2004); Yuk, 355 F.3d at 1236. Accordingly, we affirm the IJ’ s restriction-on-removal determination.-10-

III. CONCLUSION We AFFIRM the decision of the BIA.
ENTERED FOR THE COURT

Harris L Hartz Circuit Judge