* Of the District of New Hampshire, sitting by designation.

United States Court of Appeals

For the First Circuit

No. 01-1741

RICARDO F. VELÁSQUEZ,

SUSANA D. GRANADOS-URIZAR,

ELUVIA R. GRANADOS-URIZAR,

Petitioners,

v.

JOHN ASHCROFT, ATTORNEY GENERAL OF

THE UNITED STATES,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER 

OF THE BOARD OF IMMIGRATION APPEALS

Before

Torruella and Lipez, Circuit Judges,

and McAuliffe,* District Judge.

Randy Olen, for petitioners.

Anthony P. Nicastro, Attorney, Office of Immigration

Litigation, Civil Division, with whom Kurt B. Larson, Attorney,

Robert D. McCallum, Jr., Assistant Attorney General, Civil

Division, and David V. Bernal, Assistant Director, Office of the

Immigration Litigation, were on brief for respondent.

August 29, 2003
1 The three applications for asylum were consolidated, and on

June 18, 2001, this Court granted petitioners' request to similarly

consolidate their cases before us.

2 We review only the denial of asylum claim. Since the standard

for withholding deportation is more stringent than that for asylum,

"a petitioner unable to satisfy the asylum standard fails, a

fortiori, to satisfy the former." Álvarez-Flores v. INS, 909 F.2d

1, 4 (1st Cir. 1990); accord Aguilar-Solís v. INS, 168 F.3d 565,

569 n.3 (1st Cir. 1999) (noting that "withholding of deportation

requires a clear probability of persecution" (citations omitted)).

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TORRUELLA, Circuit Judge. Ricardo Velásquez, Susana D.

Granados-Urizar, and Eluvia Rosalina Granados-Urizar (collectively

"petitioners") seek review of a decision by the Board of

Immigration Appeals ("Board" or "BIA") denying their application

for asylum and withholding of deportation. We affirm the Board's

decision.

I.

Petitioners, a father and his two adult daughters, are

natives and citizens of Guatemala.1 All three entered the United

States without inspection in September 1989. The Immigration and

Naturalization Service ("INS") charged petitioners with being

removable as aliens present in the United States without being

admitted or paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). On

August 18, 1999, petitioners, represented by counsel, appeared

before an Immigration Judge ("IJ"), conceded removability, and

indicated that they would seek relief from removal in the form of

asylum and withholding of deportation.2 The IJ found petitioners

removable as charged and denied their applications for relief. The
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Board, noting the changed conditions in Guatemala and petitioners'

failure to prove persecution, affirmed the IJ's decision and

dismissed the appeal.

The evidence presented before the IJ and adopted by the

Board confirms that petitioners were witnesses to various acts of

guerrilla violence that plagued Guatemala in the early 1980s.

Specifically, Velásquez's sister and brother-in-law were killed by

guerrillas in September 1981, after refusing to give them money and

assistance. Following these murders, Velásquez, himself, received

two death threats, allegedly because his family was wealthier than

average Guatemalans. After receiving the threats, petitioners fled

to another part of Guatemala, and, subsequently, their home and

store were burned down.

Petitioners spent the next eight years in Guatemala

without incident. During this time, Velásquez served in the Army's

Civilian Defense Patrols for approximately three years, fighting

the guerrillas. Following his stint in the army, Velásquez moved

his family to another area of Guatemala where the guerrillas were

not as active. During these years, Velásquez worked in the fields

and sent his children to school without incident.

In 1989, petitioners came to the United States, leaving

several family members behind, including Velásquez's longtime

companion, two of his children, and Granados-Urizar's daughter.

Though petitioners eventually lost contact with these relatives,
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the record indicates that no harm has befallen them. In fact, it

appears that Velásquez's companion is gainfully and safely employed

in Guatemala.

The IJ denied the applications for asylum, concluding

that petitioners did not meet their burden of establishing either

past persecution or a well-founded fear of future persecution. The

IJ did, however, grant petitioners voluntary departure. The Board

dismissed petitioners' appeal, while re-instating the grant of

voluntary departure. This appeal followed.

II.

It is well settled that findings of fact by the Board are

to be reviewed under the deferential "substantial evidence"

standard. Álvarez-Flores, 909 F.2d at 3. The Board's

determination that petitioners were not eligible for asylum "must

be upheld if 'supported by reasonable, substantial and probative

evidence on the record considered as a whole.'" INS v. ElíasZacharias, 502 U.S. 478, 481 (1992) (quoting 8 U.S.C. § 1105(A)

(4)). We will not reverse simply because we disagree with the

Board's evaluation of the facts. Álvarez-Flores, 909 F.2d at 3.

Indeed, the Board's decision can be reversed only if the evidence

presented by petitioners was so conclusive that any reasonable

adjudicator would be compelled to conclude the contrary. 8 U.S.C.

§ 1252(b)(4) (B) (2000); see also Elías-Zacharias, 502 U.S. at 481.

The evidence presented by petitioners falls short of that mark.
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In the initial proceedings, the alien bears the burden of

establishing eligibility for asylum by proving either past

persecution or a well-founded fear of persecution. 8 C.F.R.

§ 208.13(b).

A. Past Persecution

The IJ determined that petitioners could not succeed in

their claim of past persecution. To prove past persecution, an

applicant must demonstrate that he or she has suffered persecution

on account of one of the five enumerated grounds: race, religion,

nationality, membership in a particular social group, or political

opinion. Id. § 208.13(b)(1). The IJ found, and the Board agreed,

that petitioners failed to provide conclusive evidence that they

were targeted by the guerrillas based on any of the protected

grounds.

Petitioners bear the burden of establishing that they

fall within one of five enumerated grounds. 8 C.F.R. § 208.13(a);

see also Álvarez-Flores, 909 F.2d at 3 ("Petitioner bears the

burden of proving eligibility for asylum. . . ."). In an attempt

to satisfy this burden, petitioners contend that their social

status and political beliefs "singled them out" as targets for the

guerrillas. The IJ rejected that position and, instead, relied

upon evidence showing that thousands of politically neutral

Guatemalans met with the same fate, concluding that petitioners

were not persecuted on an individual basis. Indeed, the record as
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a whole bespeaks of general harm attributable to the widespread

civil strife that plagued Guatemala during that time. Congress,

however, has not "generally opened the doors to those merely

fleeing from civil war." Velásquez-Valencia v. INS, 244 F.3d 48,

51 (1st Cir. 2001). Furthermore, the IJ looked at the fact that

petitioners spent eight years in Guatemala after the alleged

persecution. There is no indication that petitioners changed their

political opinion or their social class during that time; in fact,

petitioners were able to live and work without interference from

the guerrillas. The evidence clearly supports the IJ's finding

that petitioners suffered no more than thousands of other

Guatemalans during this period of civil unrest. Consequently, the

evidence does not compel us to reverse the Board's finding that

petitioners were not targeted on any individual basis, much less on

one of the five enumerated grounds.

B. Well-Founded Fear of Persecution

The IJ similarly found that petitioners failed to

establish a well-founded fear of persecution. Petitioners have two

routes by which they can establish a well-founded fear of

persecution: (1) they can offer specific proof, Álvarez-Flores, 909

F.2d at 5, or (2) they can claim the benefit of a regulatory

presumption based on proof of past persecution, 8 C.F.R. § 208.13

(b)(1). As discussed above, petitioners have failed to establish

past persecution. Therefore, because they are not entitled to a
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presumption, they must point to specific proof to justify a wellfounded fear of persecution. Nelson v. INS, 232 F.3d 258, 264 (1st

Cir. 2000).

To demonstrate a well-founded fear of future persecution

by direct evidence, a petitioner must satisfy both an objective and

subjective test. Álvarez-Flores, 909 F.2d at 5. Under the

subjective requirement, a petitioner must prove that his fear is

genuine, id., while the objective component requires showing by

"credible, direct and specific evidence" that this fear is

reasonable. Ravindran v. INS, 976 F.2d 754, 758 (1st Cir. 1992)

(internal quotations and citation omitted). Generally, "the BIA

requires that an applicant show that a reasonable person in his

circumstances would fear persecution." Álvarez-Flores, 909 F.2d at

3 (internal quotations and citation omitted).

Petitioners only point to evidence of past acts. The IJ

found that there was no evidence on the record to indicate that

petitioners would suffer any harm should they be returned to their

homeland. Rather, the evidence indicates that petitioners could

live peacefully and prosperously in Guatemala. As noted by the IJ

and the Board, numerous relatives of the petitioners have lived,

undisturbed, in Guatemala for the past twenty years. See AguilarSolís, 168 F.3d at 573 ("[T]he fact that close relatives continue

to live peacefully in the alien's homeland undercuts the alien's

claim that persecution awaits his return."). Furthermore,
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petitioners presented no evidence that the guerrillas sought

retribution against any of the remaining family members.

Therefore, it is clear that petitioners have not demonstrated by

"credible, direct and specific evidence" a reasonable fear of

persecution. As such, substantial evidence supports the IJ's

finding that petitioners will not be targets upon their return to

Guatemala.

In sum, we see no need to disturb the findings below.

The IJ and the Board, after carefully considering a great deal of

evidence, concluded that petitioners had not met their burden in

establishing past persecution or a well-founded fear of future

persecution. Since there exists no compelling evidence to the

contrary, we defer to this conclusion.

III.

Petitioners also ask that, in the alternative, we grant

them humanitarian asylum. However, because this Court lacks

jurisdiction to review claims raised for the first time in a

petition for review, we cannot decide whether they qualify for such

relief. Mendes v. INS, 197 F.3d 6, 12 (1st Cir. 1999); see also

Bernal v. Vallejo, 195 F.3d 56, 64 (1st Cir. 1999).

IV.

Finally, the government's argument that this court lacks

jurisdiction to reinstate voluntary departure fails. See Khalil v.

Ashcroft, 337 F.3d 50, 56 (1st Cir. 2003) (reinstating voluntary
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departure under permanent rules of the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996 ("IIRIRA")). We therefore

reinstate the voluntary departure period granted by the Board.

V.

For the reasons discussed above, we affirm the order of

the Board of Immigration Appeals, and the voluntary departure

period is reinstated.

"Concurrence and Dissenting follows"
4 See, e.g., Zazueta-Carrillo v. Ashcroft, 322 F.3d 1166 (9th Cir.

2003). See also 8 U.S.C. § 1229c(f) (providing that no court shall

have jurisdiction to "order a stay of an alien’s removal pending

consideration of any claim with respect to voluntary departure"

and, at least implicitly, suggesting that no court shall have

jurisdiction to reinstate a lapsed period of voluntary departure);

8 C.F.R. §§ 240.26(f) and (h) (discussing the authority to grant

extensions of time within which to voluntarily depart and the

authority to reinstate a lapsed period of voluntary departure).

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McAuliffe, District Judge (Concurring in part and

Dissenting in part). Except in one respect, I am in complete

agreement with the panel opinion. Because I believe an amendment

to the Immigration and Nationality Act made by the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996, and

codified at 8 U.S.C. § 1252(a)(2)(B)(i), probably eliminated this

court’s jurisdiction to reinstate a lapsed period of voluntary

departure in conjunction with our adjudication of a petition for

review,4 and because I do not believe we are bound by any contrary

panel precedent in this circuit, I would not simply reinstate the

lapsed period of voluntary departure.

Since we granted Respondent's petition for rehearing in

this case, and because what precedent exists in this circuit

neither addresses nor resolves the specific issue raised by

Respondent in that petition, I would address and resolve on its

merits the question of this court’s jurisdiction to reinstate a

lapsed period of voluntary departure.