Not for Publication in West's Federal Reporter 

United States Court of Appeals

For the First Circuit 

No. 15-2018 

JOSE AMADO RODRIGUEZ, 

Petitioner, 

v. 

LORETTA E. LYNCH, ATTORNEY GENERAL, 

Respondent. 

PETITION FOR REVIEW OF AN ORDER OF 

THE BOARD OF IMMIGRATION APPEALS 

Before 

Howard, Chief Judge, 

Torruella and Stahl, Circuit Judges. 

Kevin MacMurray and MacMurray & Associates for petitioner. 

Thankful T. Vanderstar, Attorney, Office of Immigration 

Litigation, U.S. Department of Justice, Benjamin C. Mizer, 

Principal Deputy, Assistant Attorney General, and Linda S. 

Wernery, Assistant Director, for respondent. 

 

July 15, 2016 
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STAHL, Circuit Judge. The petitioner in this case is 

a Salvadoran citizen seeking asylum and withholding of removal 

based on his alleged past persecution and fear of future 

persecution. The immigration judge and Board of Immigration 

Appeals denied his application and ordered him removed to El 

Salvador. Because the record does not compel a contrary 

conclusion, we deny the petition for review. 

I. Facts & Background 

On February 20, 2010, Jose Amado Rodriguez entered the 

United States without a valid entry document. A native and 

citizen of El Salvador, Rodriguez was charged by the Department 

of Homeland Security with being a removable alien, which he 

conceded. Rodriguez applied for asylum, withholding of removal, 

and protection under the Convention Against Torture ("CAT"). 

Appearing before an immigration judge ("IJ"), 

Rodriguez testified that he first came to the United States in 

2001 and had Temporary Protected Status until 2007, when he 

returned to El Salvador to take care of his ill mother. Back in 

El Salvador, he joined the National Republican Alliance Party 

("ARENA") and worked as a driver and counselor. In this role, 

Rodriguez claims to have had two troubling encounters with 
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members of an opposing party, the Farabundo Martí National 

Liberation Front ("FMLN"). 

As to the first encounter, Rodriguez testified that he 

was driving some people to a meeting when seven or eight 

individuals wearing FMLN hats and t-shirts blocked his truck 

with their truck and "start[ed] throwing stones at [him] and 

threatening [him]." The FMLN members did not get out of their 

truck, but allegedly said if they saw him again they would push 

his truck "down one of the mountains" with him in it. According 

to Rodriguez, the stones thrown by the FMLN members hit his 

truck, but none of its occupants. 

In the second encounter, eight to ten months later, 

Rodriguez said that his truck was vandalized while it was parked 

in front of city hall and that the "30 to 40" people who did so 

said, "if we see you again, next time you [will] pay with your 

life." Rodriguez said he knew it was the FMLN because they left 

an FMLN flag. 

 After Rodriguez reported these incidents to the 

mayor, who was a member of the ARENA party, the mayor allegedly 

told Rodriguez that "it [would be] better if [Rodriguez] didn't 

do a thing . . . [and] went to another country, because [his] 

life was in danger." Rodriguez did not notify the police, 
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testifying that he did not think they would help him because 

they are "very corrupt[]." Rodriguez left El Salvador about 

three days later. He testified that he believed that his life 

would be in danger if he returned home. 

On December 4, 2013, the IJ issued an oral decision 

finding Rodriguez removable as charged; denying his request for 

asylum under section 208 of the Immigration and Nationality Act 

("the Act"), 8 U.S.C. § 1158, withholding of removal under 

section 241(b)(3) of the Act, 8 U.S.C. § 1231(b)(3), and 

protection under the CAT, 8 C.F.R. § 1208.16; and ordering him 

removed to El Salvador. Rodriguez appealed the decision to the 

Board of Immigration Appeals ("the Board"), which agreed with 

the IJ's determinations and dismissed the appeal. This petition 

for review followed. 

II. Analysis 

To qualify for asylum, an alien must establish that he 

is a "refugee." See 8 U.S.C. § 1158(b)(1); Guaman-Loja v. 

Holder, 707 F.3d 119, 122 (1st Cir. 2013). A "refugee" is an 

alien who is unwilling or unable 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." 8 U.S.C. 
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§ 1101(a)(42)(A). Thus, the alien bears the burden of proving 

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

See 8 C.F.R. § 1208.13(a).1

Where the Board agrees with the IJ's decision while 

adding its own reasons, we review both decisions. Sunarto Ang 

v. Holder, 723 F.3d 6, 10 (1st Cir. 2013). This Court reviews 

the IJ's findings of fact for substantial evidence and may 

reverse such findings "only if 'the evidence is such as would 

compel a reasonable factfinder to reach a contrary conclusion.'" 

McKenzie-Francisco v. Holder, 662 F.3d 584, 586 (1st Cir. 2011) 

(quoting Seng v. Holder, 584 F.3d 13, 17 (1st Cir. 2009)). 

A. Past Persecution 

Rodriguez first contends that the record compels the 

conclusion that he suffered harm rising to the level of 

persecution that the government was unable or unwilling to 

control. This contention fails twice over. 

First, past persecution must exceed "unpleasantness, 

harassment, and even basic suffering." Sinurat v. Mukasey, 537 

F.3d 59, 61 (1st Cir. 2008). To constitute persecution, the 

harm experienced "must have reached a fairly high threshold of 

                                                             1 Proving past persecution gives rise to a rebuttable 

presumption of future persecution. Guaman-Loja, 707 F.3d at 122. 
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seriousness, as well as some regularity and frequency." Alibeaj 

v. Gonzales, 469 F.3d 188, 191 (1st Cir. 2006). 

Rodriguez experienced two incidents, almost a year 

apart, falling far short of the severe, systematic type of harm 

that this Court has found to constitute persecution. See 

Anacassus v. Holder, 602 F.3d 14, 19-20 (1st Cir. 2010). While 

the alleged threats made on those two occasions are "indubitably 

unsettling, credible verbal death threats may fall within the 

meaning of persecution[] . . . only when the threats are so 

menacing as to cause significant actual suffering or harm." 

Lobo v. Holder, 684 F.3d 11, 18 (1st Cir. 2012) (internal 

quotation marks omitted). Rodriguez offered no testimony 

regarding the immediate impact, if any, that these threats had 

on him and provided little indication that those who made the 

threats had any intention or capability of carrying them out. 

Second, petitioners must demonstrate that past 

persecution is "the direct result of government action, 

government-supported action, or government . . . unwillingness 

or inability to control private conduct." Guaman-Loja, 707 F.3d 

at 123. A petitioner's mere speculation that the police will 

not provide protection if contacted is not sufficient. Sunarto 

Ang, 723 F.3d at 11. 
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Here, Rodriguez did not notify the police about his 

encounters with the FMLN, stating that he did not believe that 

they would help him. And while Rodriguez relies upon the 

mayor's alleged advice,2 his brief testimony on this issue does 

not compel the conclusion that the government of El Salvador 

would have been unable or unwilling to protect him. 

B. Future Persecution 

Rodriguez also argues that the record reflects his 

well-founded fear of future persecution. To make this showing 

independent of past persecution, he must prove that his fear is 

subjectively genuine and objectively reasonable. Silva v. 

Ashcroft, 394 F.3d 1, 4 (1st Cir. 2005). 

The IJ held that Rodriguez had not established an 

objectively reasonable fear of future persecution,3 basing her 

findings on a 2012 Department of State Country Report, which 

                                                             2 Rodriguez submitted a letter from the mayor to support his 

claim, but this letter curiously makes no mention of the alleged 

problems that Rodriguez experienced with the FMLN. Although the 

IJ "ha[d] some concerns regarding [Rodriguez's] credibility," 

she "assume[d] for the sake of th[e] decision that [he] was a 

credible witness," and so do we. 

3 When Rodriguez was interviewed shortly after entry, he 

stated that he had no fear of returning to El Salvador and had 

come to the United States to work and live in Texas. 

Nonetheless, the IJ and the Board accepted Rodriguez's claim of 

subjective fear, and, again, so do we. 
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stated that "independent observer groups reported [that] the 

elections [in March 2009 and March 2012] were free and clear 

with few irregularities . . . [and that] there were no 

politically motivated killings or disappearances." 

Rather than grounding his response in the record 

below, however, Rodriguez attempts to rely on evidence that was 

not before the IJ or the Board. We are limited in our review to 

the record upon which the appealed order of removal was based. 

See 8 U.S.C. § 1252(b)(4)(A); Shah v. Holder, 758 F.3d 32, 37 

(1st Cir. 2014). Thus, substantial evidence supports the 

agency's decision, and the record does not compel the conclusion 

that Rodriguez established an objectively reasonable fear of 

future persecution in El Salvador. 

III. Conclusion 

 Because Rodriguez failed to prove his eligibility for 

asylum, he also failed to meet the higher burden required to 

establish eligibility for withholding of removal. See GuamanLoja, 707 F.3d at 124. In addition, Rodriguez makes no argument 

on appeal regarding his claim for CAT protection, and therefore 

that issue is waived. See Vasili v. Holder, 732 F.3d 83, 92 

(1st Cir. 2013). For these reasons, the petition for review is 

DENIED.