United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 03-1493

___________

Manuel Admin Chay-Velasquez, *

*

Petitioner, *

* Petition for Review of an

v. * Order of the Board of 

* Immigration Appeals.

John Ashcroft, Attorney General *

of the United States, *

*

Respondent. *

___________

Submitted: March 11, 2004

Filed: May 6, 2004

___________

Before MURPHY, SMITH, and COLLOTON, Circuit Judges.

___________

MURPHY, Circuit Judge.

Petitioner Chay-Velasquez, a native of Guatemala, seeks political asylum,

withholding of removal, and relief under the Convention Against Torture

(Convention). The Immigration Judge (IJ) denied relief on the grounds that ChayVelasquez had committed serious nonpolitical crimes in Guatemala prior to his illegal

entry into the United States and that he was ineligible for relief under the Convention.

The Board of Immigration Appeals (Board) affirmed the IJ's order without opinion.

Chay-Velasquez petitions for review. 
-2-

Chay-Velasquez is a young man of Mayan descent. His mother was killed in

September 1980 when he was eight months old, and he was placed in an orphanage

in Guatemala City where he remained until he turned twelve. His father is believed

to be dead. In 1992 he went to live with relatives in the coastal city of San Lucas

Toliman where he attended school. His father's brothers, Felix and Martin Gomez,

had received asylum in the United States in 1989, and they provided financial support

to him. In 1994 he returned to Guatemala City, where he worked as a carpenter's

apprentice and later in a garment factory while attending high school. During this

time he had sporadic contact with his relatives and lived with friends under a bridge.

In 1995 Chay-Velasquez became active in a student group that participated in

actions against the government. It protested privatization and supported indigenous

rights, but had no name or formal organization. The group never elected officers,

published or distributed leaflets, made demands on the government, or affiliated with

any political party, but it frequently took part in demonstrations. The group marched

in protest, burned buses, and broke windows on government buildings. It also fought

with the police, and Chay-Velasquez made bottle bombs to throw at them. Although

he claims he was followed by security officers for two years, he was never detained

or interrogated by the authorities in Guatemala. His involvement in protest activities

ended in the spring of 1998, and he received his high school diploma in November

1998.

Chay-Velasquez attempted to enter the United States near Douglas, Arizona on

March 19, 1999. He was apprehended and placed in detention, served with a notice

to appear, and then released to his uncles in St. Paul, Minnesota. At a hearing on

August 4, 1999 he conceded removability, but sought asylum, withholding of

removal, protection under the Convention, or voluntary departure. The record was

closed on December 5, and an individual hearing was held on December 15, 1999 at

which Chay-Velasquez and his uncles testified. The IJ denied the application for

asylum, withholding of removal, and protection under the Convention, but Chay-
1

Chay-Velasquez also claims error in the Board's failure to provide review by

a three member panel and its summary affirmance without opinion. A streamlined

review process for immigration cases is not unconstitutional, see Nyama v. Ashcroft,

357 F.3d 812, 817 (8th Cir. 2004) (citing Loulou v. Ashcroft, 354 F.3d 706, 708-09

(8th Cir. 2003) (no constitutional or statutory right to an administrative appeal)), and

the Board's decision to streamline was not error.

2

At his hearing, Chay-Velasquez testified: "The thing is that the strikes were

not done peacefully. They were very brutal, so I would say, come on, let's go, let's

burn buses, and we would burn buses and [pickup] trucks."

-3-

Velasquez was granted voluntary departure. Since the Board affirmed without

opinion, we treat the IJ's decision as the agency's final determination. See

Dominguez v. Ashcroft, 336 F.3d 678, 679 n.1 (8th Cir. 2003).1

In an oral decision, the IJ found that Chay-Velasquez was generally credible

but failed to establish that he was subject to past persecution. He observed that ChayVelasquez had never been arrested, detained, interrogated, or otherwise harmed by

the Guatemalan government. What Chay-Velasquez described as protest actions were

more like riots according to the IJ. The judge also found that Chay-Velasquez's group

had engaged in criminal activity; it had destroyed public property and placed "public

safety at risk when buses were burned and government buildings were attacked."2

Referencing INS v. Aguirre-Aguirre, 526 U.S. 415 (1999), the IJ found that the

criminal nature of Chay-Velasquez's acts outweighed the political because they were

"actions of exceptional destruction and violence." Although protests against high bus

fares and the failure to investigate disappearances touched on important political and

social issues in Guatemala, burning civilian buses was not a direct attack upon

government activities. The IJ found Chay-Velasquez had been involved in acts of

anarchy rather than in genuine political protest. Because he had committed serious

nonpolitical crimes prior to entering the United States, the IJ concluded that ChayVelasquez was not eligible for asylum or withholding of removal. 
-4-

The IJ concluded that there was insufficient evidence to show that the

Guatemalan government knew of Chay-Velasquez's involvement in protest

demonstrations and that even if it were to prosecute him for his activities, it would

not constitute torture under the Convention. The IJ granted him voluntary departure.

On his petition for review Chay-Velasquez argues that the IJ erred by failing

to consider all of the evidence, that he did not commit serious nonpolitical crimes,

and that he is eligible for relief under the Convention. In addition he contends that

the IJ abused his discretion by refusing to allow supplemental materials. The

Attorney General counters that there is substantial evidence to support the IJ's finding

that Chay-Velasquez had committed serious nonpolitical crimes prior to entering the

United States. He also argues that Chay-Velasquez waived any claim to relief under

the Convention and that the IJ did not abuse his discretion by refusing to admit ChayVelasquez's late filed documentary evidence. 

The IJ's determinations that Chay-Velasquez is ineligible for asylum,

withholding of removal, or relief under the Convention are legal conclusions subject

to de novo review. See Escudero-Corona v. INS, 244 F.3d 608, 613 (8th Cir. 2001).

The IJ's factual determinations are upheld if supported by substantial evidence in the

record. See Hernandez v. Reno, 258 F.3d 806, 812 (8th Cir. 2001). In order to

reverse the IJ's factual findings the evidence must not only support a contrary

conclusion, but compel it. See INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992).

To be eligible for a grant of asylum, Chay-Velasquez must demonstrate that he

is a "refugee." 8 U.S.C. § 1158(b)(1) (2003). That is, he must demonstrate that he

is unwilling or unable to return to Guatemala because of past persecution or a well

founded fear of future persecution on account of race, religion, nationality,

membership in a particular social group, or political opinion. See 8 U.S.C. §

1101(a)(42)(A) (2003). A well founded fear is one that is both subjectively genuine
-5-

and objectively reasonable. See Melecio-Saquil v. Ashcroft, 337 F.3d 983, 986 (8th

Cir. 2003) (citing Ghasemimehr v. INS, 7 F.3d 1389, 1390 (8th Cir. 1993)). 

To be eligible for withholding of removal, Chay-Velasquez must show a clear

probability of persecution in Guatemala, on account of race, religion, nationality,

membership in a particular social group, or political opinion. See 8 U.S.C. §

1231(b)(3) (2003). Because a greater degree of certainty must be shown by a

petitioner to qualify for mandatory withholding of removal than for asylum, failure

to carry the burden of proof for asylum necessarily precludes withholding of removal.

See Tawm v. Ashcroft, 2004 WL 769469, at *3 (8th Cir. Apr. 13, 2004) (citing

Habtemicael v. Ashcroft, 360 F.3d 820, 825 (8th Cir. 2004)); Wondmneh v. Ashcroft,

361 F.3d 1096, 1099 (8th Cir. 2004). 

Eligibility for asylum and withholding of removal is precluded if the Attorney

General decides that there "are serious reasons" to believe that Chay-Velasquez

committed "a serious nonpolitical crime" outside the United States before arrival.

See 8 U.S.C. §§ 1158(b)(2)(A)(iii) and 1231(b)(3)(B)(iii) (2003). Deference is due

the Attorney General's determinations of a political nature, for the determination of

what constitutes a serious nonpolitical crime in another country may affect our

relations with that country or its neighbors. Aguirre-Aguirre, 526 U.S. at 425. The

judiciary is not well positioned to take primary responsibility for such decisions. Id.

Chay-Velasquez has the burden of proving by a preponderance of the evidence that

this ground for exclusion is inapplicable. See id. at 432. 

The conditions which must be met for consideration of withholding of removal

under the Convention are identified in 8 C.F.R. §§ 208.16-.18 (2003), and ChayVelasquez bears the burden to establish that it is more likely than not that he would

be tortured if removed to Guatemala. See Perinpanathan v. INS, 310 F.3d 594, 599

(8th Cir. 2002). Torture is defined as any act by which severe pain or suffering is

intentionally inflicted for an impermissible purpose with the consent or acquiescence
-6-

of a public official. See 8 C.F.R. § 208.18(a) (2003). Torture does not include pain

or suffering arising from lawful sanctions that do not otherwise defeat the

Convention's purposes.

Chay-Velasquez challenges the IJ's finding that he committed serious

nonpolitical crimes and is therefore ineligible for both political asylum and

withholding of removal. Chay-Velasquez argues that his protest activities were

political in nature and that what constitutes a serious nonpolitical crime is not

susceptible of rigid definition, citing Aguirre-Aguirre, 526 U.S. at 429. He also

points out that he was a minor when he engaged in the protests and that he did not

engage in attacks on innocent civilians. See id. at 423.

The evidence in the record supports the IJ's findings that Chay-Velasquez had

endangered the public and committed violent acts out of proportion to any political

aspect of his conduct. See Aguirre-Aguirre, 526 U.S. at 422. This includes evidence

that he was involved in burning buses which served the civilian population, breaking

windows, and fighting with police. The fact that police officers were the target of his

bottle bombs rather than civilians does not convert his acts into political offenses.

See Efe v. Ashcroft, 293 F.3d 899, 905-06 (5th Cir. 2002) (demonstrator's attack and

killing of police officer at a political rally was disproportionate to his political

objectives). Chay-Velasquez did not carry his burden to prove that the serious

nonpolitical crime preclusion should not apply to his case. The IJ's conclusion that

Chay-Velasquez is ineligible for asylum or withholding of removal because of serious

nonpolitical crimes is supported by the law, as well as by substantial evidence in the

record.

Chay-Velasquez requests relief under the Convention Against Torture. The

government argues that he has waived this claim by not raising it in his opening brief.

See United States v. Brown, 108 F.3d 863, 867 (8th Cir. 1997) (argument first raised

in reply brief is not considered without reason shown for failure to raise earlier).
-7-

Since there was no meaningful argument on this claim in his opening brief, it is

waived. We also note that he would not prevail on this claim based on the evidence

in the record. Although he alleges he was in fear of death and claims that he was

sometimes followed by security personnel, Chay-Velasquez remained in Guatemala

until he graduated from high school in November 1998. There is no clear evidence

that the Guatemalan authorities even knew of Chay-Velasquez's involvement in

criminal activities because he was never detained, interrogated, or arrested. He has

not shown that prosecution and punishment for such actions would amount to torture

under the Convention. 

Chay-Velasquez argues that the IJ abused his discretion in refusing to admit

a supplemental filing to his asylum application. Approximately seven months after

the hearing, Chay-Velasquez offered a "Supplement to Political Asylum Package."

The Attorney General opposed the submission because the proceedings had been

closed and argued that Chay-Velasquez should not be allowed to rehabilitate his

testimony without cross examination. Without citing any authority, Chay-Velasquez

alleges that the IJ's refusal to admit this material was an abuse of process and led to

an outcome based on stale information. 

The IJ's refusal to admit evidence after the deadline and after the proceedings

were closed was consistent with immigration hearing regulations. An IJ may set and

extend time limits for filings, and "[i]f an application or document is not filed within

the time set by the Immigration Judge, the opportunity to file that application or

document shall be deemed waived." 8 C.F.R. § 1003.31(c) (2003). Chay-Velasquez

could have filed a motion to reopen, accompanied by material evidence not

previously available or evidence of changed country conditions, see 8 C.F.R. §§

1003.2 and .23 (2003), but he did not. The IJ's refusal did not prejudice ChayVelasquez because his supplemental materials would not have affected the basis for

denying him relief because of the serious nonpolitical crimes he committed prior to
-8-

entering the United States. The IJ's decision not to admit late filed information was

not an abuse of discretion. 

Accordingly, the Board's order is affirmed.

______________________________