Not for Publication in West's Federal Reporter

Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

United States Court of Appeals

For the First Circuit

No. 02-1512

JOSE HUGO PELAEZ,

Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF 

THE BOARD OF IMMIGRATION APPEALS

Before

 Boudin, Chief Judge,

Torruella and Lipez, Circuit Judges.

Ronald L. Abramson with whom Abramson, Bailinson & O'Leary,

P.C. was on brief for petitioner.

Jennifer L. Lightbody, with whom Robert D. McCallum, Jr.,

Assistant Attorney General, Allen W. Hausman, Senior Litigation

Counsel, and Earle B. Wilson, Attorney, Office of Immigration

Litigation, were on brief for respondent.

May 22, 2003
-2-

LIPEZ, Circuit Judge. Jose Hugo Pelaez, a native and

citizen of Colombia, petitions for relief from the denial of his

claims for asylum under 8 U.S.C. § 1158(a), and for withholding of

removal. The Immigration Judge found that Pelaez had not

demonstrated a well-founded fear of persecution justifying asylum.

The Board of Immigration Appeals affirmed the decision without

opinion, in accordance with the Department of Justice's (DOJ)

"streamlined" appellate review procedures. Pelaez challenges both

the Immigration Judge's denial of his asylum claim and the

constitutionality of the DOJ's affirmance without opinion

procedures. We affirm.

I. ASYLUM

To be eligible for asylum, Pelaez bears the burden of

proving that he qualifies as a "refugee." 8 U.S.C. § 1158(b)

(2003). The Immigration and Nationality Act "defines a refugee as

an alien who cannot or does not want to return to his home country

'because of persecution or a well-founded fear of persecution on

account of race, religion, nationality, membership in a particular

social group, or political opinion.'" Manzoor v. United States

Dep't of Justice, 254 F.3d 342, 346 (1st Cir. 2001) (quoting 8

U.S.C. § 1101(a)(42)(A) (2003)). A petitioner can prove that he

qualifies as a refugee in one of two ways: "(1) by demonstrating

past persecution, thus creating a presumption of a well-founded

fear of persecution; or (2) by demonstrating a well-founded fear of
1 "Ordinarily, Courts of Appeals review decisions of the

[BIA], and not those of an IJ. When the BIA does not render its

own opinion, however, and either defers [to] or adopts the opinion

of the IJ, a Court of Appeals must then review the decision of the

IJ." Albathani v. INS, 318 F.3d 365, 373 (1st Cir. 2003) (quoting

Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002)) (alterations in

original; internal quotation marks omitted).

-3-

persecution." Yatskin v. INS, 255 F.3d 5, 9 (1st Cir. 2001). We

review a denial of a petition for asylum under a substantial

evidence standard. Id. We will reverse a decision of the IJ or

BIA only if "the record evidence would compel a reasonable

factfinder to make a contrary determination." Aguilar-Solis v.

INS, 168 F.3d 565, 569 (1st Cir. 1999).1

Before assessing the record evidence in this case, we

must address Pelaez's suggestion in his brief and assertion at oral

argument that the IJ "found that he did in fact suffer

'persecution' as a threshold matter." The government strongly

disagrees with this contention, asserting that the IJ did not find

that Pelaez suffered past persecution, and that, "in fact, Pelaez

made no allegation of past persecution in his application for

asylum or during his testimony before the Immigration Judge." The

stakes in this disagreement are considerable. If the IJ had found

that Pelaez demonstrated past persecution on the basis of political

opinion, he would have established a presumption of a well-founded

fear of persecution. Under INS regulations, this finding would

then shift the burden of proof to the government, requiring it to

prove by a preponderance of the evidence that the fear of
-4-

persecution is not well-founded, either because "[t]here has been

a fundamental change in circumstances" in the petitioner's home

country, 8 C.F.R. § 208.13(b)(1)(i)(A), or because the petitioner

"could avoid future persecution by relocating to another part" of

his home country, 8 C.F.R. § 208.13(b)(1)(i)(B). Moreover, if the

IJ had found that Pelaez suffered past persecution because of his

political opinions, and then failed to allocate the burden of proof

properly, that misallocation would have been a legal error.

Manzoor, 254 F.3d at 348 (finding that "the BIA erred in allocating

the burden of proof to Manzoor to show that the threat of

persecution was country-wide"). 

We find nothing in the IJ's opinion that supports the

claim that she made a finding of past persecution. Moreover, we

agree with the government that Pelaez did not properly raise the

issue of past persecution before the IJ. Indeed, there is only a

single mention of "past persecution" in a closing statement

Pelaez's attorney made to the IJ. Consequently, we will analyze

Pelaez's claim before us only as one citing a well-founded fear of

persecution. See Yatskin, 255 F.3d at 9 ("[A] reviewing court

should judge the action of an administrative agency based only on

reasoning provided by the agency.").

Before departing Colombia for the United States, Pelaez

worked as the Chief Secretary of Planning for the city of Cartago.

The Immigration Judge found this position to be a "political
-5-

patronage type of job," to which Pelaez was appointed because of

his involvement with the Conservative Social Party. As Planning

Secretary, Pelaez oversaw urban development projects and was

responsible for the enforcement of property and zoning regulations.

In June 1996, a colleague in the Planning Office was assassinated

after he had received death threats. Shortly thereafter, Pelaez

also began to receive threats at work and at his home. In his

view, these threats came from local property developers and

builders who were connected with the drug trade. In June 1998,

Pelaez had a particularly heated meeting with a developer who

implied that he was carrying a weapon. Only two months later, in

August 1998, Pelaez traveled on business to Brazil, Chile, and

Argentina. He returned to Colombia in September 1998, and remained

there until May 1999, when he and his wife traveled to the U.S. on

tourist visas. Pelaez filed his application for asylum in 2000. 

Pelaez argues that he has a well-founded fear of

persecution on the basis of political opinion because the threats

he received resulted from his position as Secretary of Planning in

Cartago -- a political job requiring him to further the political

aims of the Mayor. Pelaez contends that his enforcement of zoning

regulations, his role in drafting new property laws, and his

willingness to root out corruption in the Planning office were

political acts, engendering retribution by local property owners

based on political opinion. Whether the performance of one's
-6-

governmental job can be deemed political opinion or imputed

political opinion for the purpose of an asylum determination

pursuant to 8 U.S.C. § 1158(a) is a difficult question that the IJ

chose not to answer. Instead, she assumed arguendo that Pelaez had

drawn the necessary nexus between the threats he received as a

result of his government work and the threat of persecution on the

basis of political opinion, and concluded that he still had not

proven a "well-founded fear of persecution." We follow her lead on

appeal.

"To prove a well-founded fear of persecution, the

'applicant's fear must be both genuine and objectively

reasonable.'" Morales v. INS, 208 F.3d 323, 330 (1st Cir. 2000)

(quoting Aguilar-Solis, 168 F.3d at 572). The IJ concluded that

Pelaez's conduct before his arrival in the United States "undercut"

his claim that he feared persecution if he were to return to

Colombia. As noted, shortly after receiving a threatening visit

from a developer, Pelaez traveled on business to three other

countries in South America, but chose to return to Colombia after

his business was concluded. The IJ found that Pelaez's voluntary

return to Colombia and his failure to apply for asylum in any of

the countries he visited on his business trip undermined his claim

that he genuinely feared persecution at home. We agree. 

The IJ also concluded that Pelaez "has not shown he could

not relocate to another part of Colombia." Such ability to
2 Pelaez also applied for withholding of deportation, but

because the burden of proof under that section is "more stringent

than that for asylum, 'a petitioner unable to satisfy the asylum

standard fails, a fortiori, to satisfy the former.'" Velasquez v.

Ashcroft, 316 F.3d 31, 34 n.2 (quoting Alvarez-Flores v. INS, 909

F.2d 1, 4 (1st Cir. 1990)). Therefore, we also affirm the IJ's

denial of that claim.

-7-

relocate is a relevant consideration in determining whether a fear

of persecution is well founded. See 8 C.F.R. § 208.13(b)(2)(ii)

("An applicant does not have a well-founded fear of persecution if

the applicant could avoid persecution by relocating to another part

of the applicant's country of nationality . . . if under all the

circumstances it would be reasonable to expect the applicant to do

so."). Pelaez testified that he has family living in other parts

of Colombia. The IJ also relied on the fact that Pelaez had

"skills that would be useful to him in an urban center," and that

"Colombia is a large country, and [Pelaez] is not sure that he

could not relocate elsewhere." These conclusions are supported by

the evidence in the record.

As we have stated, a petitioner seeking reversal of a

denial of asylum must show that "the evidence presented was so

compelling that no reasonable fact-finder could fail to find that

[he] was persecuted on the basis of political opinion or had a

well-founded fear of such persecution." Morales, 208 F.3d at 331.

The evidence in this case does not meet that standard.2 
-8-

II. STREAMLINED APPEALS PROCESS

Pelaez also challenges the constitutionality of the

recent amendments to the DOJ's regulations governing appeals to the

BIA. See 8 C.F.R. § 3.1(a)(7) (2003). These regulations permit

one member of the BIA to summarily affirm, without written opinion,

a decision of an Immigration Judge. This same objection to the

regulations was recently rejected in our circuit in Albathani, 318

F.3d at 375-79. There is nothing for us to add to that wellreasoned opinion.

AFFIRMED.