* This order and judgment is not binding precedent, except under the

doctrines of 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

NOV 15 2001

PATRICK FISHER

Clerk

UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

LUIS JUAN MONTEJO,

Petitioner,

v.

IMMIGRATION &

NATURALIZATION SERVICE,

Respondent.

No. 01-9507

(BIA No. A70 095 957)

(Petition for Review)

ORDER AND JUDGMENT *

Before TACHA , Chief Judge, SEYMOUR , Circuit Judge, and BRORBY , Senior

Circuit Judge.

After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument. 
-2-

Petitioner Luis Juan Montejo, a citizen of Guatemala, appeals the decision

by the Board of Immigration of Appeals (Board) affirming the immigration judge

(IJ)’s denial of petitioner’s application for asylum and withholding of removal. 

Because the decision is supported by substantial evidence, we affirm.

Petitioner entered the United States illegally in May 1990, seeking to avoid

recruitment by guerrilla forces in Guatemala. In June 1991, he submitted an

application for asylum. Removal proceedings were initiated against petitioner on

June 17, 1997, and on August 11, 1998, petitioner admitted that he was

removable, but reiterated his request for asylum and withholding of removal. At a

hearing held on May 20, 1999, petitioner testified that when he was approximately

eleven years old his father refused to join the guerrilla forces and was placed on a

death list; that his father went to Mexico and later to the United States, where he

was deported in 1989; that petitioner feared that he would be recruited by the

guerrillas when he turned eighteen; that he knew neighbors who had been killed

for refusing to join the guerrilla forces; and that he left Guatemala when he was

eighteen to avoid being recruited. 

Petitioner also presented a psychologist’s report stating that petitioner

feared returning to Guatemala. The report contained a somewhat different factual

history, relating that petitioner left his hometown at age 12 to live in the small

town of Retableu, that he moved to Guatemala City at age 15, and that he returned
-3-

to his hometown at age 17 to work in a bakery. The report stated that the

guerillas came to his hometown when petitioner was 15, and that his father left

the country in 1986 but returned to take care of his family in 1989. Finally, the

report indicated that petitioner feared not only guerrilla recruitment, but military

recruitment as well. The psychologist opined that petitioner was a marked man

because of his refusal to join either side, and that he might be retaliated against. 

The government presented a State Department report on Guatemala

containing the following information concerning petitioner’s claim: that

Guatemala’s thirty-six-year-old civil war ended with the signing of peace accords

in December 1996; that the umbrella guerrilla organization and its component

groups disbanded in March 1997 and have formed a legitimate political party; that

the guerrillas have renounced the use of force to achieve political goals; that the

military and police have been reduced and restructured and Civilian Self-Defense

Patrols have been abolished; that these entities are being held accountable for

their conduct; that the targeting of Indian populations for military and guerrilla

recruitment has ceased; that since the signing of the peace accords the State

Department had not seen any claims of violence by Guatemalan Indians that could

be attributed to political motives; and that even during the worst times the

enforced conscription was avoidable by moving to a different part of the country. 
1 Petitioner argues that we have jurisdiction to consider his equal protection

claim even though it was not raised to the Board because the Board lacks

(continued...)

-4-

The IJ issued an oral ruling after the hearing, finding that petitioner had not

shown past persecution or a well-founded fear of future persecution based on his

race, religion, nationality, political opinion, or membership in a particular social

group; that recruitment by a military or guerrilla group was not considered

persecution on one of the enumerated grounds; that the fact that petitioner had not

been recruited when he was younger, during the prime recruitment ages, indicated

that he was not subjected to persecution; that petitioner could have moved to

another part of Guatemala to avoid guerrilla recruitment; that petitioner’s fear of

future recruitment by the guerillas was not well-founded because of the peace

accord; and that petitioner’s inability to meet the burden for asylum precluded

him from meeting the higher withholding of removal standard. 

Petitioner appealed to the Board, arguing that he had met the standard for

asylum and that the IJ had improperly discounted his evidence. The Board

concurred with the IJ’s decision and dismissed the appeal.

On appeal to this court, petitioner raises a host of issues that were not

raised to the Board. Because petitioner failed to exhaust his remedies with

respect to these issues, we lack jurisdiction to consider them on appeal. 

Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir. 1999).1

 The one issue he
1

(...continued)

jurisdiction to review constitutional issues. It is true that there is an exception to

the general exhaustion rule for constitutional issues. Akinwunmi, 194 F.3d at

1341. Here, however, there is no actual controversy as to whether stopping the

accrual of an alien’s years of continuous presence upon service of a notice to

appear violates equal protection, because petitioner has not shown that he was

refused cancellation of removal on this basis by the IJ or the Board. Further, it is

not clear that petitioner would be foreclosed from seeking cancellation of removal

on this ground, as his notice to appear was served more than seven years after he

entered this country. 

-5-

preserved is whether the BIA erred in affirming the IJ’s decision that petitioner

failed to establish past persecution or a reasonable fear of future persecution. We

review this issue under a deferential standard, reversing only if petitioner’s

evidence “compels” a contrary conclusion. INS v. Elias-Zacarias, 502 U.S. 478,

481 n.1 (1992). 

Contrary to the facts described in petitioner’s brief, the record shows that

petitioner himself was not actually threatened with death, but that his father had

been placed on a death list. In fact, it is not clear whether petitioner was actually

recruited at all. At the hearing, he testified that the guerillas stopped looking for

his family after his father left home because the children were still little, that the

guerrillas threatened to recruit him when he was older, and that he left Guatemala

because he was eighteen, which he believed was the age of recruitment, but that

no specific incident caused him to leave. 
-6-

Even assuming that petitioner refused an attempt to recruit him, there is no

evidence that petitioner was recruited or refused recruitment due to his political

opinion. In Elias-Zacarias, the Supreme Court made it clear that recruitment by

Guatemalan guerrillas, in itself, is not considered persecution based on political

opinion. Id. at 482-83 (explaining that forced recruitment is not on account of

victim’s political opinion, but that of guerrillas, and that refusal to join guerillas

can be for many reasons other than political opposition to their cause). Because

here petitioner did not present any evidence that he was recruited based on his

political opinion or that he refused to join the guerillas because he disagreed with

their political stance, the evidence does not compel the conclusion that he was

persecuted based on his political opinion. 

The decision of the Board of Immigration Appeals is AFFIRMED, and the

petition for review is DISMISSED.

Entered for the Court

Deanell Reece Tacha 

Chief Judge