* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions 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, th is panel has determined unanimously to grant the parties’ request for a dec ision 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 Guatemal a, appeals the decision by the Board of Immigration of Appeals (Board) affi rming the immigration judge (IJ)’s denial of petitioner’s application for asylu m and withholding of removal. Because the decision is supported by substantial ev idence, we affirm. Petitioner entered the United States illegally in M ay 1990, seeking to avoid recruitment by guerrilla forces in Guatemala. In J une 1991, he submitted an application for asylum. Removal proceedings were i nitiated against petitioner on June 17, 1997, and on August 11, 1998, petitioner a dmitted that he was removable, but reiterated his request for asylum an d 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 gue rrilla forces and was placed on a death list; that his father went to Mexico and late r to the United States, where he was deported in 1989; that petitioner feared that h e would be recruited by the guerrillas when he turned eighteen; that he knew ne ighbors who had been killed for refusing to join the guerrilla forces; and thathe left Guatemala when he was eighteen to avoid being recruited. Petitioner also presented a psychologist’s report s tating that petitioner feared returning to Guatemala. The report containe d a somewhat different factual history, relating that petitioner left his hometownat 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 hi s family in 1989. Finally, the report indicated that petitioner feared not only gu errilla 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 pet itioner’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 organ ization and its component groups disbanded in March 1997 and have formed a le gitimate political party; that the guerrillas have renounced the use of force to a chieve political goals; that the military and police have been reduced and restructu red and Civilian Self-Defense Patrols have been abolished; that these entities ar e being held accountable for their conduct; that the targeting of Indian populat ions 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 G uatemalan Indians that could be attributed to political motives; and that even d uring 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 cons ider his equal protection

claim even though it was not raised to the Board be cause the Board lacks (continued...) -4- The IJ issued an oral ruling after the hearing, fin ding 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 prim e recruitment ages, indicated that he was not subjected to persecution; that peti tioner could have moved to another part of Guatemala to avoid guerrilla recrui tment; that petitioner’s fear of future recruitment by the guerillas was not well-fo unded 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 h ad met the standard for asylum and that the IJ had improperly discounted hi s evidence. The Board concurred with the IJ’s decision and dismissed the appeal. On appeal to this court, petitioner raises a host o f issues that were not raised to the Board. Because petitioner failed to exhaust his remedies with respect to these issues, we lack jurisdiction to co nsider them on appeal. Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir. 1999). 1 The one issue he1 (...continued)

jurisdiction to review constitutional issues. It i s 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 t o whether stopping the accrual of an alien’s years of continuous presence upon service of a notice to appear violates equal protection, because petitione r has not shown that he was refused cancellation of removal on this basis by th e 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 reasonabl e fear of future persecution. We review this issue under a deferential standard, rev ersing 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 bri ef, the record shows that petitioner himself was not actually threatened withdeath, but that his father had been placed on a death list. In fact, it is not cl ear 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 c hildren were still little, that the guerrillas threatened to recruit him when he was ol der, 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 r ecruitment due to his political opinion. In Elias-Zacarias , the Supreme Court made it clear that recruitment by Guatemalan guerrillas, in itself, is not consideredpersecution based on political opinion. Id. at 482-83 (explaining that forced recruitment is n ot 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 opposi tion to their cause). Because here petitioner did not present any evidence that h e was recruited based on his political opinion or that he refused to join the gu erillas because he disagreed with their political stance, the evidence does not compe l 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