* This order and judgment is not binding precedent, e xcept under the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

### MAR 4 2004 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

BERNA NAKITYO,

Petitioner, No. 02-9561

v. (BIA No. A76-948-280) JOHN ASHCROFT,

Respondent. (Petition for Review)

ORDER AND JUDGMENT *

Before SEYMOUR , McWILLIAMS , and HARTZ , Circuit Judges.
Petitioner Berna Nakityo is a native and citizen of Uganda. After coming to the United States on a student visa to participate in an academic exchange program in 1998, she applied for asylum and withhol ding of removal under the Immigration and Nationality Act (the INA), 8 U.S.C. § 1101, et seq . She claimed that if she returned home she would face persecutio n as a result of her chance encounter with rebels during a scientific research trip in Uganda before her visit to this country. An immigration judge (IJ) denied the application after a hearing-2-

on February 20, 2001. The Board of Immigration App eals (BIA) affirmed the IJ’s decision without opinion on August 29, 2002. Petit ioner appeals, contending that (1) the IJ erred in finding that she had no well-fo unded fear of future persecution, and thus did not qualify for asylum or withholding of removal; (2) the BIA erred in not applying 8 C.F.R. § 208.13(b)(1)(iii); and ( 3) the BIA violated Petitioner’s due-process rights by issuing an affirmance withoutopinion under 8 C.F.R. § 1003.1(a)(7). We exercise jurisdiction under 8 U .S.C. §1252(a), see Tsevegmid v. Ashcroft , 336 F.3d 1231, 1235 (10th Cir. 2003), and affirm.
I. BACKGROUND A. Asylum and Withholding Law “An alien who fears persecution if deported has two possible means of relief: asylum and withholding of deportation.” Tsevegmid, 336 F.3d at 1234 (quoting Nazaraghaie v. INS , 102 F.3d 460, 462 (10th Cir. 1996)). The former is within the discretion of the Attorney General, whil e the latter is granted to qualified aliens as a matter of right. See INS v. Cardoza-Fonseca , 480 U.S. 421, 424 (1987). Under § 208(b)(1) of the INA, 8 U.S.C. § 1158(b)(1) , to be eligible for a discretionary grant of asylum by the Attorney Gener al, the alien must establish her status as a refugee as defined in INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). See Krastev v. INS , 292 F.3d 1268, 1270 (10th Cir. 2002). The-3-

pertinent part of the INA definition of a refugee i s “any person . . . outside [her] country of . . . nationality . . . who is unable or unwilling to return to, and is unable or unwilling to avail . . . herself of the p rotection of, that country because of persecution or a well-founded fear of persecutio n on account of race, religion, nationality, membership in a particular social grou p, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). An applicant can establis h her status as a refugee by showing she either (1) “has a well-founded fear of future persecution,” (2) “has suffered past persecution, which gives rise to a [r ebuttable] presumption [of] a well-founded fear of future persecution,” or (3) ha s suffered “past persecution so severe as to demonstrate compelling reasons for bei ng unwilling or unable to return” to her country of nationality. Krastev , 292 F.3d at 1270–71 (internal brackets and quotation marks omitted). Aliens basing their asylum claims upon a well-founded fear of future persecution must show b oth a genuine, subjective fear of persecution, and “an objective basis by credible , direct, and specific evidence in the record, of facts that would support a reason able fear [of] . . . persecution.” Yuk v. Ashcroft , No. 02-9546, 2004 U.S. App. LEXIS 781 at *29 (10t h Cir. Jan. 20, 2004) (internal quotation marks omitted). Applications for withholding of removal (now referr ed to as restriction on removal) are governed by § 241(b)(3) of the INA, wh ich requires applicants to show that their “life or freedom would be threatene d in [their home] country-4-

because of [their] race, religion, nationality, mem bership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3 ). The Attorney General may not remove an alien if she is able to establish “a clear probability of persecution” in the country to which she would be returned. Tsevegmid, 336 F.3d at 1234. The standard of proof for withholding is “more dema nding than the well-founded fear standard applicable to an asylum claim.” Id. (internal quotation marks omitted). Thus, when applicants fail to establish the objective component of a well-founded fear of persecution, they necessarily fail to establish entitlement to withholding of removal. See Batalova v. Ashcroft , No. 02-9588, 2004 U.S. App. LEXIS 1055 at *24 (10th Cir., Jan. 23, 2004); Yuk, 2004 U.S. App. LEXIS 781 at *39 (holding that IJ correctly denied withholding o f removal when “petitioners failed to meet the lower standard of showing entitl ement to asylum”). B. Factual Background At a removal proceeding on July 20, 2000, Petitione r conceded removability but sought asylum and withholding of r emoval under the INA, and withholding under the Convention against Torture. (On appeal she does not address her claim under the Convention against Tort ure, so we need not consider it. See McDonald v. Kinder-Morgan, Inc. , 287 F.3d 992, 999 (10th Cir. 2002).) Her hearing on the merits of her application was on February 20, 2001.-5-

Petitioner’s fear of persecution arose out of a bot anical field trip in June 1998 to the mountains of the Ruwenzori district in western Uganda. Also on the trip were three fellow researchers from the univers ity herbarium in Kampala and two field assistants hired in the mountains. Durin g the trip they were approached by a group of men they believed to be anti-governme nt rebels, who ordered them to leave the mountain region. The group retreated to a World Wildlife Fund camp in Fort Portal, Uganda. The members of the group w ere interrogated at the camp by persons Petitioner believed to be government off icials. They were asked what they were doing in the area, given that there were known rebels there. According to Petitioner, the local people grew reluctant to w ork or speak with the research team, so the team decided to return to their univer sity. A few weeks after this trip, Petitioner received a student visa to study at Wesleyan University in Connecticut. The visa permi tted her to remain in the United States until March 1, 1999. She arrived in the United States on August 29,
1998. Petitioner testified that in January 1999, two mont hs before she was due to return to Uganda, she received a telephone call fro m a member of her Ruwenzori research group, Margret Nakato. According to Petit ioner’s testimony and a letter from Ms. Nakato submitted into evidence, during that telephone call Ms. Nakato informed Petitioner that two of their colleagues fr om the group had been arrested-6-

and were missing, and that their field assistants o n the trip had been killed as suspected rebels along with other boys from Fort Po rtal. Petitioner testified that she stayed on in the United States after her schedu led departure date out of fear that she might be arrested or killed for being a su spected rebel should she return. In support of her own testimony and Ms. Nakato’s le tter, Petitioner also submitted to the IJ (i) professional notices and pu blications verifying Petitioners’ vocation as an herbologist; (ii) Amnesty Internatio nal and Human Rights Watch reports on Uganda, detailing rebel activity and imp roper responses by government forces; (iii) a United States State Department coun try report on Uganda; and (iv) various news articles, including reports of widespr ead instability in Uganda as a whole, government reprisals against journalists who broadcast news of rebel activities in the Ruwenzori region, and rebel attac ks and anti-rebel operations in the Ruwenzori region. News articles specifically r egarding Fort Portal reported that bounties had been offered to the residents forturning in rebels, and that five unnamed teenage boys had been executed there as sus pected rebels. At the hearing, however, Petitioner presented no evidence that anyone from the government had come looking for her in Kampala, whe re she had lived before leaving Uganda, or had approached her mother and ch ildren in Mukono, 18 kilometers from Kampala, where they continue to res ide.-7-

In his oral decision of February 20, 2001, the IJ s aid that Petitioner may have a subjective fear of persecution. But he did not find that she had established an objective basis for that fear, finding rather “t hat a reasonable person in the same situation would have no need to fear the Gover nment.” R. at 50. Accordingly, the IJ denied Petitioner’s application s for asylum and withholding of removal, and granted her voluntary departure by Apr il 23, 2001. Petitioner timely appealed to the BIA. Under 8 C.F .R. §§ 1003.1(a)(7) & (e), the BIA assigned the case to a single board me mber who affirmed the IJ’s decision without opinion on August 29, 2002. Petit ioner now appeals to this
court. II. DISCUSSION A. IJ’s Factfinding “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. “We review the IJ’s resolution of the initial refugee status question under a substantial evidenc e standard.” Yuk, 2004 U.S. App. LEXIS 781 at *29. In other words, the IJ’s ad verse asylum decision “must be upheld if supported by reasonable, substantial a nd probative evidence on the record as a whole.” Krastev , 292 F.3d at 1275. The decision should be reverse d only when “a reasonable factfinder would have to co nclude that the requisite fear-8-

of persecution existed.” Woldemeskel v. INS , 257 F.3d 1185, 1189 (10th Cir. 2001) (quoting INS v. Elias-Zacarias , 502 U.S. 478, 481 (1992)). The IJ was not persuaded that Petitioner faced an a ctual threat of persecution if she returned to Uganda. He pointed out that (1) she had not been politically active; (2) her encounter with the rebe ls was during a legitimate scientific research trip; (3) she was not harmed by the interrogators whom she believed to be government agents; (4) she left the region and the country without encountering any attempts to restrain her; (5) her family was not subsequently contacted by the government; (6) nothing connected the five boys reported killed in Fort Portal to the two field assistants; and (7) Petitioner provided no direct evidence of the arrest and disappearance of her two colleagues, even though, given the many human-rights organizations with a pr esence in Uganda (of which Petitioner submitted evidence), there would be news paper and international reports as to what occurred “if two university scho lars of good standing who were apolitical were taken into Government custody, and then were not heard from since.” R. at 48. The IJ’s analysis of the record is a reasonable one . A reasonable factfinder would not be compelled to find that Petitioner’s fe ar of persecution was objectively justified. We affirm the denial of Pet itioner’s asylum and withholding-of-removal claims.-9-

B. Failure to Apply Regulation Petitioner contends that the BIA erred in failing t o consider whether Petitioner suffered “other serious harm” under 8 C. F.R. § 208.13(b)(1)(iii). The regulation, however, applies only to victims of past persecution

. See 8 C.F.R. § 208.13(b)(1)(iii) (“An applicant described in par agraph b(1)(i) of this section . . . may be granted asylum . . . if . . . [t]he applicant has established that there is a reasonable possibility that he or she may suffer other serious harm upon removal[.]”); id. at § 208.13(b)(1) (defining “Past persecution”). Petitioner neither alleges nor shows that she was the victim o f past persecution. There was no error in not applying the regulation.
C. BIA Procedure Finally, Petitioner argues that the BIA’s use of an affirmance without opinion violated constitutional guarantees of proce dural due process. We must reject the argument. We recently held that the streamlined BIA procedure prescribed by 8 C.F.R. § 1003.1(a)(7) does not violate procedural due proc ess. See Yuk, 2004 U.S. App. LEXIS 781 at *26. As we explained in Yuk, even under the streamlined process, “petitioners receive[] a meaningful and thorough re view of their claims, and, in the IJ’s decision, they receive[] a reasoned explan ation for the agency’s decision,-10-

which we can, in turn, review. Due process . . . r equire[s] nothing more.” Id. at *25–26. Petitioner further argues in support of her due-pro cess claim that affirmance without opinion was improper in her part icular case, because “there were new issues raised on appeal that had not been addressed in the court below.” Aplt. Br. at 48. We decline to consider this argum ent, however, because Petitioner does not identify in her brief what “new issues” were raised on appeal before the BIA. See Eateries Inc. v. J.R. Simplot Co., 346 F.3d 1225, 1232 (10th Cir. 2003) (“We need not sift through the record to find evidence to support a party's argument, nor manufacture a party's argumen t for it.” (internal brackets and quotation marks omitted)).
III. CONCLUSION We AFFIRM the BIA and IJ’s decision denying Petitio ner’s application for asylum and withholding of removal.
ENTERED FOR THE COURT

Harris L Hartz Circuit Judge