* Of the District of Maine, sitting by designation.



# United Stat es Court of Appeals

For the First C ircuit

No. 03-1180 JUAN ALICIO SAMAYOA CABRERA and BLANCA MARGARITA VELASQUEZ,

Petitioners,

v. JOHN ASHCROFT, Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before Selya and Howard, Circuit Judges , and Singal, * District Judge .

HarveyKaplan , with whom Ilana Greenstein , Maureen O'Sullivan , Jeremiah Friedman and Kap lan, O'Sullivan & Friedman, LLP were on brief, for petitioners. Isaac R. Campbell , Trial Att or ney, Office of Immigration Litigation, with whom Peter D. Keisler , Assistant Attorney General, an d Pa pu Sandhu , Senior Litigation Counsel, were on brief, for respondent.

May 4, 20041 Ms. Velasquez, Mr. Samayoa’s wife, is incl uded in the asylum

petition based solely on Mr. Samayoa’s experiences. While th is opinion refers mainly to petitioner Samayoa, the decision rendered applies to both petitioners. -2- SINGAL, District Judge . Juan Alicio Samayoa Cabrera and Blanca Margarita Velasquez, citizens of Guatemala, 1 applied for

a s ylum, relief under the Convention Against Torture, and withholding of removal. The Immigration Jud ge ("I J") denied the applications, and the Board of Immigration Appeals ("BIA") affirmed without opinion. Mr. Samayoa and Ms. Velasquez petition for judicial review, c laimin g that the IJ erred in concluding that they are ineligible for asylum a nd withholding of removal. We affirm the BIA's decision. I. Background Juan Alicio Samayoa Cabrera is a fifty-four-y ea r-old man fromthe Q uiche region of Guatemala. His claims for asylum are basedon his mistreatment at the hands of guerilla fighters in Guatemala from 1982 to 1992, which he attributes to his political opinion. Following the events described below, he came to the UnitedStates illegally in 1992, and applied for asylu m on December 27, 1993. His case was finally heard by a n Imm igration J udge on February 4, 2002. The oral decision rendered on tha t date was not i n his fa vor, and he appealed to the BIA. The BIA-3-

summarily affirmed the IJ's decision, and Samayoa petitioned this court for judicial review. A. Facts The petitioners' testimony elicited the following facts. Mr. Samayoa's first run-in with the guerillas occ urr ed in 1982, when his car was stopped by a group of guerillas who tied him up, put a gun to his head and threatened to kill him in order to steal gasoline from him. The guerillas warned Mr. Samayoa that if he mentioned the incident to authorities, they would kill him, andthat they knew where h e l ived. Instead of following the guerillas' in stru ctions, he reported the incident to an army colo nel. The colonel advised him that he should leave town, but Mr. Samayoa did not want to, so the co lon el made him an aide to the military commi ssion er, a volunteer position which entitled himto carry a gun. The reafter, Mr. Samayoa was promoted to military commissioner, in which capacity he engaged in military recruiting. He also became the leader of his neighborhood civil patrol, a position that put him in charge of a group of five hundredpatrolmen that protected the village from guerilla fighters. Mr. Samayoa received between thirty and fifty deat h threats in the years after he became a military commissioner. The-4-

threats were addressed to him by name, and explicitly stated that he would be killed by guerillas. In either 1987 or 1990, his

w ife found a bomb under his car outside their house, which she was able to deactivate before it detonated. In 1988, Mr. Samayoa

was falsely accused of kidnapping. He was told afterwards that the plan had been for someone to kill him while he was in jail. In 1991, a land mine exploded on Mr. Samayoa's property while he wa s walking to milk his cows. He was wounded in the face and was immediately surrounded by about eigh t arme d men. (His son informed him later that there had been approximately sixtyguerillas altogethe r.) Mr. Samayoa escaped on foot after fending th emoff with the pistol he had been issued by the military. In the meantime, the guerillas destroyed his truck. Soldiers who went looking for t he guerillas that attacked Mr. Samayoa were bombed, and seven soldiers were killed. In 1992, Mr. Samayoa was shot while driving along a mountainous road about forty kilome ters f rom his home. Other vehicles were traveling along the road as well, and Mr. Samayoa swerved to avoid a bus when a land mine exploded nearby. At that point, twenty-five to thirty guerillas ran towards his car, shooting at him. Mr. Samayoa escaped when his passenger took control of the vehicle and transported them to a hospital in-5-

Joyabaj. There was no fighting going on in the region at the time, and no other vehicles on the road were subjected to such an attack. While he was at the Joyabaj hospital, the building was subject to guerilla surveillance, but Mr. Sama yoa was smuggled out and airlift ed to a military hospital in Guatemala City. Mr. Samayoa was in a coma for three days. He remained in intensive care for a month and was guarded by two military personnel. Upon his discharge from the hospital, Mr. Sam ayoa was unwilling to return to his home for fear of the guerillas, so his wife rented a house in Guatemala City. He was put on active payroll by the military and recei ved ou tpatient treatment at the hos pital. Even after Mr. Samayoa had relocated to Guatemala City, the guerillas continued to search for him. Mr. Samayoa determined that he could not remain in Guatemala, and applied for a visa at the United States embassy. His application was denied, and although the Guatemalan military authorities offered to help him obtain a visa, he thought it best to enter the United States illegally. Even after he had left the country the guerillas continued to look for him. B. The IJ's Decision The IJ did not make a n expres s finding, one way or the other, as to Mr. Samayoa's credibility, but concluded that he had-6-

not suffered persecution on account of one or m ore of the five statutorygrounds set forth in Section 101(a)(42)(A) of the Immigration and Nationality Act. The IJ determined that the acts sufferedby Mr . Samayoa did not constitute persecution but were insteadattributable to g ener alized violence in the area. Assuming for the sake of argument that Mr. Samayoa had been persecutedin the 1992 incident, the IJ concluded that there had not been a showing t hat he had been targeted on one or more of the five statutory grounds. The IJ noted that Ms. Velasquez was able to live peacefully in her home with hired security and th a t the guerillas had not come looking for Mr. Samayoa since shortly after he left Guatemala in 1992. The IJ noted that the civil war in Guatemala ended some time ago, and that although there remainsa high level of crime, Mr. Samayoa did not appear to have a wellfounded fear of f uture persecution on one or more of the five statutorygrounds. Because Mr. Samayoa had not established eligibilityfor asylum, he was not eligible for withholding of

r emoval. The IJ concluded that there had been no showing tha t Samayoa or his wife were eligible for p rotection under the Convention Against Torture.-7-

II. Discussion On appeal, the BIA's findings of fact must be upheld "unless anyreaso nable adjudicator would be compelled to conclude to the contrary." 8 U.S. C § 1252(b)(4)(B); Laurent v. Ashcroft , 359 F.3d59, 64 (1s t Cir . 2004). Because the BIA summarily affirmed the IJ's decision, we review the IJ's decision. L auren t , 359 F. 3d at 64 n.3. As a prerequisite to establishing eligibility for asylum, an alien must establish that h e is a refugee, as set forth in section 101(a)(42)(A) of the Imm ig ration and Nationality Act. 8 U.S.C. § 1158(b). In that section, "refugee" is defined as: any person who is outside any countr y of such person's nationalityor, in the case of a person having no nationality, is outside any country in which su ch p erso n last habitually resided, and who is unable or unwilling to return to, and i s u nable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-fou n ded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.

8 U.S.C. § 1101(a)(42)(A). In order to demonstrate that he is a refugee, Mr. Samayoa must establish both that he suffers from a well-foundedfear of persecu tion and that the feared persecution is based on one of the five statutory grounds.-8-

The crux of Mr. Samayoa's petition for judicial review is that the IJ erred when she found that Mr. Samayoa had not been specifically targeted because of his opposition to the guerilla movement given the number of threats and attempts he had been subjectedto. While Mr. Samayoa presents a sympathetic case and his argument that he was specifically targeted has some merit, he must also establish th at he was persecuted on one of the five statutory grounds. Mr. Samayoa argues that his task is not to establish the exact motivation of a persecutor , but only to demonstrate the reasonableness of a motivation which is related to one of the enumeratedgrounds . While an alien seeking asylum is not requiredto provide direct proof of his perse cutors' motives, he must provide some evidence of such motives. INS v. EliasZa carias , 502 U.S. 478, 483-84 (1992). There is little to ti e the alleged persecution to Mr. Samayoa's imputed political opinion other than the fact that after the first attack, he initiatedhis involvement with the military in order to secure the right to carry a weapon. Partici pati on in a civil defense patrol does not by itself compel a conclusion that an individual is subject to politically-in sp ired persecution. See AguilarSolis v. INS , 168 F. 3d 565, 572 (1s t Cir. 1999 ). Mr. Samayoa-9-

has not provided such e vid ence as would require a reasonable factfinder to conclude that his fear of future persecution was based on his actual or imputed political opinion. III. Conclusion For the reasons set forth a bove, the order of the BIA is affirmed .