* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

** Honorable William F. Downes, District Judge, UnitedStates District Court for the District of Wyoming, sitting by designation

. 

## F I L E D United States Court of Appeals Tenth Circuit 

### AUG 7 1997 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

JOSE ROBERTO RAMIREZ,

Petitioner,

v. IMMIGRATION & NATURALIZATION SERVICE,

Respondent. No. 96-9542 (Petition for Review) (No. A73 711 538)

ORDER AND JUDGMENT *

Before KELLY and HENRY, Circuit Judges, and DOWNES, ** District Judge.
After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. Th e case is therefore ordered submitted without oral argument.1 The Illegal Immigration Reform and Immigrant Respon sibility Act of 1996

(IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009, alte rs the availability, scope, and nature of judicial review in INS cases. However, b ecause petitioner’s deportation proceedings commenced before April 1, 1997, and the final decision of the INS issued before October 31, 1996, neither IIRIRA’s pe rmanent “new rules,” nor its interim “transitional rules,” apply to this case. See id. §§ 306(c)(1), 309(a), (c)(1) & (4), as amended Pub. L. No. 104-302, § 2, 110 Stat. 3657, set out in notes to 8 U.S.C. §§ 1101, 1252. In contrast, provisions of t he Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104- 132, 110 Stat. 1214, may apply to INS cases commenced, like this one, before AEDPA’s enactment on April 24, 1996, see Fernandez v. INS , 113 F.3d 1151 (10th Cir. 1997), though none of these appear pertinent to this petition forreview, which does not involve deportation for criminal activity addressed by AEDP A. -2- Petitioner seeks review of a final order of the INS denying his application for asylum or withholding of deportation. 1 The Board of Immigration Appeals (BIA) concluded he had not shown the requisite “per secution or a well-founded fear of persecution on account of race, religion, n ationality, membership in a particular social group, or political opinion,” 8 U .S.C. § 1101(a)(42)(A) (defining “refugee” status), and denied relief accordingly, s ee Castaneda v. INS , 23 F.3d 1576, 1578 (10th Cir. 1994) (failure to satisfy def inition of refugee precludes asylum and, a fortiori, withholding of deportation) . Specifically, the BIA upheld the decision of the Immigration Judge (IJ), who had found petitioner’s evidence insufficient to establish either past/feared persec ution or a political basis for the persecution alleged. Petitioner is a native Guatemalan who entered the U nited States without inspection in October 1994. He promptly applied fo r political asylum, claiming-3-

his departure from Guatemala was prompted by death threats from two guerrilla groups, which had canvassed his community with inti midating flyers, letters, and door-to-door demands, seeking material assistance and young male recruits. The extent to which threats were directed personally to ward petitioner is somewhat unclear in light of certain discrepancies and ambig uities in the record. Although not a member of any opposing political or military group, petitioner eventually deemed it necessary to flee the country to avoid th e guerrilla groups’ coercive solicitations. As we agree with the IJ that petitioner failed to s how he was threatened because of his political opinions, we need not reso lve the matter of persecution per se. Indeed, there is some question whether pet itioner even preserved the fully dispositive political-nexus issue by challenging th is alternative rationale for the IJ’s decision in his appeal to the BIA. See Rivera-Zurita v. INS , 946 F.2d 118, 120 n.2 (10th Cir. 1991). The record has only peti tioner’s administrative notice of appeal, and the relevant objections raised in th is brief document, that the IJ “abused his discretion in denying asylum,” “did notfully consider death threats and past persecution of [petitioner] by rebel armed forces,” and “placed too much emphasis on minor inconsistencies in testimony,” ARat 17, do not appear to engage the issue.-4-

In any event, the Supreme Court has made it clear t hat harassment by guerrilla forces seeking to coerce enlistment does not establish persecution for political opinion. See INS v. Elias-Zacarias , 502 U.S. 478, 481-84 (1992). Petitioner contends that his refusal to join the gu errillas nevertheless reflected a political act--the deliberate decision to remain ne utral--thereby politicizing any adverse consequences imposed by the guerrillas. A similar argument was specifically addressed and rejected in Elias-Zacari as : [Petitioner] appears to argue that not taking sides with any political faction is itself the affirmative expression of a p olitical opinion. That seems to us not ordinarily so, . . . [as such a view would fail to] distinguish [political opinion] from such quite dif ferent concepts as indifference, indecisiveness, and risk averseness. But we need not decide whether the evidence compels the conclusion that [petitioner] held a political opinion. Even if it does, [petiti oner] still has to establish that . . . the guerrillas will persecute him because of that political opinion, rather than because of his refus al to fight with them. 502 U.S. at 483. Even if we assume petitioner’s ne utral stance was indeed ideological, he has not shown that the rebels perse cuted or would persecute him for this stance rather than simply for his refusal to join them, p articularly as his own testimony indicates he never voiced any politic al opposition expressly to the guerrillas. Compare Sotelo-Aquije v. Slattery , 17 F.3d 33, 36-37 (2d Cir. 1994) (finding political persecution because guerrilla or ganization threatened petitioner on account of his active, public opposition), with Bartesaghi-Lay v. INS , 9 F.3d 819, 822 (10th Cir. 1993) (holding government sympathizer did not establish-5-

political persecution by rebel group because threat“was prompted by the fact that he declined to become involved . . ., and not becau se of his political opinions”). “To reverse the BIA finding [that petitioner is nota refugee] we must find that the evidence not only supports [the contrary] conclusion, but compels it.” Elias-Zacarias , 502 U.S. at 481 n.1. For the reasons discussed a bove, reversal is clearly inappropriate here. The petition for review is DENIED.

Entered for the Court

William F. Downes District Judge