NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-1305

_____________

MARTIN ALEJANDRO GUTIERREZ BORROVIC, 

 Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

 Respondent

_______________________

On Petition for Review from the Board of Immigration Appeals

BIA-1 No. A099-423-126

Immigration Judge: The Honorable Margaret Reichenberg

_______________________

Submitted Pursuant to Third Circuit L.A.R. 34.1(a)

May 17, 2012

Before: SMITH, and FISHER, Circuit Judges,

and STEARNS, District Judge∗

(Filed: June 5, 2012)

_______________________

OPINION

_______________________

SMITH, Circuit Judge.

 

∗The Honorable Richard G. Stearns, United States District Judge for the United States

District Court of Massachusetts, sitting by designation.
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Martin Alejandro Gutierrez Borrovic, a native and citizen of Peru, entered the 

United States as a visitor in November of 2004. He overstayed his visitor visa. In

August of 2005, he filed an application for asylum, withholding of removal, and relief 

under the Convention Against Torture (CAT). Citing certain incidents that occurred 

while he was a seminary student in the Roman Catholic faith performing pastoral duties 

in his cassock, Gutierrez Borrovic sought asylum on the basis of religious and political 

persecution. Thereafter, he was served with a Notice to Appear, charging him as 

removable for overstaying his visa. Gutierrez Borrovic conceded removability, and 

relied upon his pending application for asylum, withholding of removal, and relief under 

the CAT. The Immigration Judge (IJ) found that there were some concerns about 

Gutierrez Borrovic’s credibility. Nonetheless, the IJ assumed that Gutierrez Borrovic 

was credible, and determined that Gutierrez Borrovic had neither suffered past 

persecution on account of his religion or political opinion, nor had a well-founded fear of 

future persecution. Accordingly, the IJ denied his application. 

Gutierrez Borrovic filed a timely appeal with the Board of Immigration Appeals 

(BIA). It adopted the IJ’s decision and affirmed the denial of Gutierrez Borrovic’s 

application. This timely petition for review followed.1

Gutierrez Borrovic contends that the BIA erred by affirming the decision of the IJ. 

He asserts that the IJ erred by concluding that he failed to establish past persecution. In 

his view, because he was persecuted, Gutierrez Borrovic submits that the IJ also erred by

 1 The Immigration Court had jurisdiction under 8 U.S.C. § 1229a. The BIA exercised 

jurisdiction under 8 C.F. R. § 1003.1(b). Our jurisdiction is pursuant to 8 U.S.C. 

§ 1252(a). 
3

denying his application for withholding of removal and for relief under the CAT. 

Because the BIA’s order adopted the findings of the IJ and set forth its own 

abbreviated analysis of Gutierrez Borrovic’s application, we review the decisions of both 

the IJ and the BIA. Abulashvili v. Attorney General, 663 F.3d 197, 202 (3d Cir. 2011). 

Our review of the IJ’s factual findings, including the finding that an alien has not suffered 

past persecution, is for substantial evidence. Sandie v. Attorney General, 562 F.3d 246, 

251 (3d Cir. 2009). We will not disturb the factual findings if they are “supported by 

reasonable, substantial, and probative evidence on the record considered as a whole.” 

Immigration and Naturalization Serv. v. Elias-Zacarias, 502 U.S. 478, 481 (1992)

(internal quotation marks and citation omitted). As the Supreme Court instructed in 

Elias-Zacarias, the determination by the agency “can be reversed only if the evidence 

presented . . . was such that a reasonable factfinder would have to conclude” otherwise. 

Id. 

Gutierrez Borrovic contends that as a seminary student performing pastoral duties,

he suffered persecution on the basis of his religious and political beliefs at the hands of 

the Shining Path organization because it believed the Catholic Church was a tool of 

imperialists. The evidence reveals that, in February of 2000, Gutierrez Borrovic began 

his studies at a seminary in the City of Huanuco, Peru. While he was performing pastoral 

duties in July or August of 2000, he learned that leaflets were left in his church, 

criticizing the priests and threatening to kill or harm them if they did not leave. At one 

point, unknown individuals approached him after Mass and identified themselves as 

members of the Shining Path. He claims they criticized the church, insulted him and 
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another person who was present, and suggested that he should leave the city “to avoid 

problems.” He reported this to his superiors, who stopped the assignment of pastoral 

duties. Gutierrez Borrovic continued his studies at the seminary until January of 2001

without incident. 

At that time, Gutierrez Borrovic accepted the invitation of Father Rodriguez, a 

local priest in Churubamba, a community approximately an hour and a half away from 

the seminary in Huanuco. He worked with Father Rodriguez, performing pastoral duties 

in the community and helping with a house for juveniles. In June of 2001, propaganda 

leaflets were left in the church. The following month, four individuals approached him 

after he finished celebrating the Mass, identified themselves as members of the Shining 

Path, criticized his involvement with the Roman Catholic Church, abducted him for an 

hour and a half, told him that they were going to kill him, and told him to stop visiting the 

communities. During the abduction, he was pushed by the individuals, forced to sit in an 

uncomfortable position behind the driver’s seat of a car, and suffered from a numbness in 

his feet. Gutierrez Borrovic did not receive any physical injuries during the abduction 

that required medical attention. Thereafter, Gutierrez Borrovic left Peru. He claimed that

the Shining Path continued to pursue him as inquiries about his whereabouts were made 

to two of his family members. 

After considering Gutierrez Borrovic’s testimony, the IJ concluded that Gutierrez 

Borrovic had not suffered persecution. Furthermore, the IJ noted that the identity of the 

individuals making the inquiries were unknown and the inquiries were neither menacing 

nor of a nature to prevent him from returning to Peru on three occasions. The BIA 
5

agreed, citing Fatin v. Immigration & Naturalization Service, 12 F.3d 1233, 1240 (3d 

Cir. 1993).

Fatin instructs that persecution is “extreme conduct” and that it “does not 

encompass all treatment that our society regards as unfair, unjust or even unlawful or 

unconstitutional.” Id. at 1240 & n.10. After carefully considering the record, we 

conclude that the evidence supports the IJ’s determination that Gutierrez Borrovic did not 

suffer past persecution as it is defined in Fatin. Accordingly, we reject GutierrezBorrovic’s argument that the IJ erred by denying his asylum claim. 

The standard that an alien must establish to obtain withholding from removal

under 8 U.S.C. § 1231(b)(3) is higher than the standard for asylum. Lukwago v. Ashcroft, 

329 F.3d 157, 182 (3d Cir. 2003). Because Gutierrez-Borrovic was unable to meet the 

burden of proof for his asylum claim, it follows that he did not satisfy the burden for his 

claim for withholding of removal. Id.

Finally, we consider Gutierrez Borrovic’s assertion that he is entitled to relief 

under the CAT. Under the CAT, an alien is entitled to relief if he can show, inter alia, 

“that it is more likely than not that he . . . would be tortured if removed” to Peru. 8 

C.F.R. § 208.16(c)(2). The evidence of record, however, does not satisfy this 

requirement as there is no evidence of any hostility towards Gutierrez Borrovic on the 

part of the Peruvian government or any evidence of a palpable threat of persecution by 

the remnants of the now mostly isolated Shining Path.

For the reasons set forth above, we will deny Gutierrez Borrovic’s petition for

review.