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



# Un ited Sta tes C our t of A pp eals

For the First C ircuit 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. AnthonyP. 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 Direc tor, O ffice of the Immigration Litigation, were on brief for respondent.

August 29, 20031 The three applications for asy lum 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 (1s t Cir . 1990); accord Aguilar-Solís v. INS , 168 F.3d 565, 569 n.3 (1st Cir. 1999) (noting that "withholding o f depo rtation requires a clear probabilityof persecution" (citations omitted)). -2- 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 Appe als ("Board" or "BIA") denying their application for asylum and withholding of deportation. We affirm the Board's decision. I.

Pet itioners, a father and his two adult daughters, a r e natives and citizens of Guatem ala. 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 admittedor paroled. See 8 U.S.C. § 1182(a)(6)(A)(i). On Augu st 18, 1999, petitioners, represented by counsel, appear e d before an Immigration Judg e ("I J"), conceded removability, and indicated that they would seek relief from removal in the form of asylumand withholding of deportation. 2 The IJ foun d peti tioners removable as charged and denied their applications for relief. The-3-

Board, noting the changed conditions in Guatemala and petitioners' failure to prove persecution, affirmed the IJ's decisi on a nd 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 killedby 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, subseque ntl y, their home and store were burned down.

Petitioners spent the next eight ye ars in Guatemala without incident. During this time, Velásquez served in the Army's Civilian D efen se 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

comp anion, two of his children, and Granados-Urizar's daughter. Though petitioners eventually lost contact with these rela tive s,-4-

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 t he 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 IJdid, however, grant petitioners voluntarydeparture. The Board dismissedpetitioners' appeal, while re-instating the g rant 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 ev idence" standard. Álvarez-Flores , 9 09 F.2d at 3. The Board's determination that petitioners were not eligible for asylum "must be uph eld if 'supported by reasonable, substantial and probative evidence on the record considered as a w hole .'" INS v. ElíasZacharias , 502 U.S. 478, 481 (1992) (quoting 8 U.S.C. § 1105(A) (4)). We will not reverse simply beca use 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 onlyif the evidence presentedby petitioners was so conclusive that any reas onab le adjudicator would be compelledto 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.-5- In the initial proceedings, the alien bears the burden of establishingeligibility 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 sufferedpersecution 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 t h ey fall within one of five enumeratedgrounds. 8 C.F.R. § 208.13(a);

see also Álvarez-Flor es , 90 9 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 t hat position and, instead, relied upon e vid ence 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-6-

a whole bespeaks of gen eral harm attributable to the widespread civil strife that plag ued Gu atemala during that time. Congress, however, has not "generally ope ned 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 petitioner s sp ent eight years in Guatemala after the alleged persecution. There is no indication that petitioners changedtheir political opinion or their social class during that time; in fact, petitioners were able to live and work without i nterfe rence from the guerrillas. The evidence clearly supports the IJ's fin ding 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 similar ly found that petitioners failed to establish a well-founded fear of persecution. Petitioners have two routes by which the y can establish a well-founded fear of persecution: (1) they can offer specific proof, Álvarez-Flores , 909 F.2dat 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-7-

presumption, they must point to specific proof to justify a wellfoundedfear of persecution. Nelson v. INS , 232 F.3d 258, 264 (1st Cir. 2000).

To demonstrate a well-founded fear of future persecution bydirect evidence, a petitioner must satisfy both an objective and subjective test. Álvarez-Flores , 909 F.2d at 5. Under the subj ective requirement, a petitioner must prove that his fear is genuine, id. , while the objective component requires showing by "credible, direct and specific evi denc e" that this fear is

reason able. Ravindran v. INS , 976 F.2d 754, 758 (1st Cir. 1992) (internal quotations and cit atio n 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 foundthat there was no evi dence on the record to indicate that petitioners would suffer any harm should they be returned to their homeland. Rather, the evidence indicates that petitio ners could live peacefully and prosperously in Guatemala. As noted by the IJ andthe 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 ho melandundercuts the alien's claimthat persecution awaits his return."). Furthermore,-8-

petitioners presente d no e vidence that the guerrillas sought retribution against any of the remaini n g family members. Therefore, it is clear that petitioners have not d emonstrated 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 eviden ce, co ncluded that petitioners had not met their burden in establishi ng p ast 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 themhum anitarian 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 , 19 7 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 (1 st Cir. 2003) (reinstating voluntary-9-

departure under permanent rules of the Illegal Immigration Reform andImmigrant 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 implici tly, s uggesting that no court shall have jurisdiction to reinstate a lapsed periodof voluntary departure); 8 C.F.R. §§ 240.26(f) and (h) (discussing the authority to grant extensions of time within which to vo luntar ily depart and the authority to reinstate a lapsed period of voluntary departure). -10- McAuliffe, District Judge (Concurring in part and Dissentingin part) . Except in one respect, I a m in comp lete agreement with the panel opinion. Because I believe an amendment to the Immigration and Nationality A ct mad e by the Illegal Immigration Reform and Immigrant Responsibility Act of 1 996, and codified at 8 U.S.C. § 1252(a)(2)(B)(i), probably eliminated this court’s jurisdiction to reinstate a lapsed period of v oluntary departure in conjunction with our adjudication of a pe tition 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 preceden t e xists 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 jurisdict ion to reinstate a lapsed period of voluntary departure.