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

### JUL 20 2004 

### PATRICK FISHER Clerk PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MARCO ANTONIO ESTRADA-ESCOBAR; ADA MARLENE ESTRADA; MARCO ANTONIO ESTRADA; JOHNNY CHRISTOPHER ESTRADA; ADA ROSA ESTRADA,

Petitioners,

v. JOHN ASHCROFT,

Respondent.

AMERICAN IMMIGRATION LAW FOUNDATION,

Amicus Curiae. No. 02-9568

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF

IMMIGRATION APPEALS (BIA Nos. A70 582 255, A70 582 256, A70 582 257,

A70 582 258, A70 582 259)

Submitted on the briefs: Shelley Wittevrongel, Boulder, Colorado, for Petiti oners. Peter D. Keisler, Assistant Attorney General, Civil Division, Terri J. Scadron, Assistant Director, Jennifer A. Parker, Trial Attorney, Office of Immigration-2-

Litigation, Civil Division, U.S. Department of Just ice, Washington, D.C., for Respondent. Mary A. Kenney, Beth Werlin, and Nadine K. Wettstei n, Washington, D.C., American Immigration Law Foundation, as Amicus Curi ae.

Before EBEL , BALDOCK , and LUCERO , Circuit Judges.

BALDOCK , Circuit Judge.

After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). T he case is therefore ordered submitted without oral argument. Petitioners are natives and citizens of Peru. Theyhave overstayed their visitors’ visas to this country and acknowledge the ir status as removable aliens. They assert, however, that they fear for their live s if returned to Peru because a terrorist group known as the Sendero Luminoso (“S hining Path”) has marked them for assassination. Petitioners seek review of an order of the Bureau of Immigration Appeals (BIA) summarily affirming the d ecision of an immigration judge (IJ) denying their applications for asylum an d withholding of removal.-3- FACTS The principal petitioner, Marco Antonio Estrada-Esc obar (Mr. Estrada), entered this country as a visitor on June 9, 1989. The other petitioners, his family members, had previously entered this country on Apr il 6, 1989, also on visitors’ visas. Mr. Estrada became a Peruvian police officer in 197 4. He rose through the ranks, eventually obtaining the rank of major in th e Peruvian National Police. From 1987 to 1989, he was chief of security for Peruvian judges who sat on terrorist cases. These so-called “faceless judges” sat behind a screen, invisible to the defendants. Mr. Estrada subsequently spent thr ee months as chief of a special police unit in Peru’s “emergency zone,” an area of the country governed by the military where terrorists are particularly active. The IJ found that terrorist guerillas are still very active in Peru. The Shining Path, a doctrinaire Maoist group, has engag ed in a campaign of politically-motivated attacks on persons and property, including assassinations of police, judges and public officials. He further fo und, however, that the number of guerillas has declined markedly in recent years bec ause the government has made large-scale arrests and has recently captured the h ead of the Shining Path organization.-4-

Mrs. Estrada, Mr. Estrada’s wife, testified that wh ile Mr. Estrada was in the emergency zone, she received a telephone call purpo rting to be from the Shining Path, threatening to kill her and her children. As the result of this threat, Mrs. Alzamora-Estrada and the children left the are a and went to live with her parents. When she returned briefly to the house to collect her belongings, she received a second call informing her that her child ren would be killed because of her husband’s work. Mr. Estrada asserts that when he returned from the emergency zone in March 1989, he received a telephone call stating th at he and his family would be killed. The caller alluded to the Shining Path. T he police force assigned security personnel to accompany Mr. Estrada’s wife to work and his son to school. In 1989, Mr. Estrada’s wife came to the United Stat es with their children, while Mr. Estrada remained in Peru. Eventually, attheir urging, he joined them in the United States, taking a vacation from the National Police. He subsequently obtained permission to extend his time away from th e force for a period of nine months, then for a period of two years, and finallyremained in this country. The police eventually granted him retirement from the f orce, in June 1994. After a hearing, the IJ provided four reasons why p etitioners should be denied asylum and withholding of deportation: (1) i t is not considered persecution when a police officer receives threats because of h is duties as a police officer-5-

(citing Matter of Fuentes , 19 I. & N. Dec. 658 (BIA 1988)); (2) petitioners failed to show that the government of Peru was unable or u nwilling to protect them; (3) petitioners could relocate to another part of the country, since the grievance of the Shining Path was generally a local one where th ey were living; and (4) other family members have continued on with their lives i n Peru without incidents affecting their safety. Petitioners raise the following issues on review: ( 1) the IJ improperly relied

on Matter of Fuentes because that case is distinguished from the facts of their case; (2) the IJ and the BIA failed to consider imp uted political opinion and Estrada’s status as a former police officer; (3) th e IJ improperly classified the threats against Estrada as purely local; (4) the IJ improperly relied on evidence about Estrada’s other family members; (5) the IJ fa iled to make a finding concerning well-founded fear of persecution; (6) th e BIA’s streamlined decision violates due process and its own regulation governi ng affirmance without opinion.
STANDARD OF REVIEW Since the BIA summarily affirmed the IJ’s decision, we review the IJ’s analysis as if it were the BIA’s. Wiransane v. Ashcroft , 366 F.3d 889, 897 (10th Cir. 2004). Petitioners argue, however, supp orted by the amicus, that the BIA’s use of the affirmance-without-opinion pro cedure violated their constitutional right to due process. We rejected that argument in Yuk v. Ashcroft ,-6-

355 F.3d 1222, 1232 (10th Cir. 2004) and therefore must also reject it here. They also argue that the BIA should not have used the af firmance-without-opinion procedure because the issues on appeal are substant ial, not controlled by BIA precedent, and present a novel fact situation. See 8 C.F.R. § 1003.1(e)(4). We reject those contentions as well, based on our anal ysis of the merits of petitioners’

case. To be eligible for asylum, an alien must first esta blish his status as a “refugee.” Wiransane , 366 F.3d at 893. To establish refugee status, th e applicant must demonstrate that he has suffered pas t persecution or has “a well-founded fear of [future] persecution on acc ount of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). “Persecution” under thi s section means not only persecution by the government but also by a non-gov ernmental group that the government is “unwilling or unable to control.” Batalova v. Ashcroft , 355 F.3d 1246, 1253 (10th Cir. 2004) (quotation omitted). “ Aliens basing their asylum claims upon a well-founded fear of future persecuti on must show both a genuine, subjective fear of persecution, and an objective ba sis by credible, direct, and specific evidence in the record, of facts that woul d support a reasonable fear of persecution.” Wiransane , 366 F.3d at 893 (quotation omitted).-7-

We review the IJ’s factual findings for substantial evidence in the record. Nguyen v. INS , 991 F.2d 621, 625 (10th Cir. 1993). The BIA’s fi ndings of fact are conclusive unless the record demonstrates that “any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B). We will not reverse the agency’s decision unless th e evidence compels the conclusion that petitioners have a well-founded fear of persecution because of one of the protected grounds. INS v. Elias-Zacarias , 502 U.S. 478, 481 n.1 (1992).
ANALYSIS
1. IJ’s reliance on Matter of Fuentes
In Fuentes , a former member of the national police in El Salv ador, who had also served as a guard at the United States Embassy , sought asylum based on allegations of a well-founded fear of persecution b y leftist guerillas. “The guerillas . . . knew him by name, knew he was a mem ber of the police, and had threatened him personally while he was a member of the national police.” Matter of Fuentes , 19 I. & N. Dec. at 659. The alien also presented testimony that the guerillas had killed people for “having been” in th e military, and that they knew of his past service and would punish or kill him if he returned to his home village. Id. (internal quotation omitted). The BIA found that the guerillas had not “persecuted” the alien during his past service as apoliceman on account of his-8-

political opinion; that the future danger he descri bed was not based on his political beliefs, but on the “danger that one with ties to a participant in a violent struggle might expect if he ventures into an area of open conflict,” id. at 662; and that the alien had failed to establish that he woul d be persecuted if he returned to another part of El Salvador, id. at 662-63. It stated that “the dangers faced by policemen as a result of that status alone are not ones faced on account of race, religion, nationality, membership in a particular s ocial group, or political opinion.” Id. at 661. Petitioners argue that their case should be distinguished from Matter of
Fuentes . They make several arguments, three of which esse ntially overlap. First, they claim, the threats against Estrada and his fam ily are terrorist threats, rather than the types of threats an alien typically may en counter due to combat or employment as a policeman. Second, Peru is not a c ountry at war, as El Salvador was, but a country faced by terrorism. Third, the danger they face is a political danger, not a combat danger. We reject each of the se arguments. The rationale in
Fuentes applies to terrorist activities, including those o f the Shining Path, because the key is not the type of threat encountered, but whether the threat was encountered because of one’s employment rather thanbecause of one’s political opinion. See Cruz-Navarro v. INS , 232 F.3d 1024, 1027-29 (9th Cir. 2000). We also reject petitioners’ argument that their cas e is distinguished because-9-

Estrada was marked for assassination by the Shining Path; we note that the same was true of the policeman in Matter of Fuentes . 19 I. & N. Dec. at 659. Finally, the fact that threats were made to Estrada’s familymembers, in addition to himself, does not undermine the reasoning in Matter of Fuentes , that the threats came because of Estrada’s status as a police office r, rather than because of his political opinion. 2. Imputed Political Opinion/Status as Former Poli ce Officer Petitioners next argue that the Shining Path impute d a political opinion to Estrada because of his service in protecting the “f aceless judges” and his police work in the emergency zone, and persecuted him or w ill persecute him because of this imputed opinion. Matter of Fuentes does not expressly address the issue of “imputed” political opinion, and petitioners conten d that the IJ erred by ignoring their argument on this point. Although the IJ did not use the words “imputed political opinion,” he stated that he had “read cou nsel’s argument stating that [ Matter of Fuentes ] was not controlling” and that he had concluded th at it was. Admin. R. at 81. Thus, he implicitly rejected thei r “imputed political opinion” argument. The evidence supports the IJ’s conclusion on this p oint. There is no compelling evidence that suggests the Shining Path persecuted Estrada on account of an imputed political opinion. In fact, he fails to link his persecution to-10-

anything other than his status as a police officer. See Cruz-Navarro , 232 F.3d at 1030. Petitioners cite Velarde v. INS , 140 F.3d 1305 (9th Cir. 1998), overruled on other grounds by Falcon Carriche v. Ashcroft , 335 F.3d 1009 (9th Cir.), opinion on rehearing , 350 F.3d 845 (9th Cir. 2003), for the propositionthat high-profile police duties (in that case, serving a s bodyguard to the daughters of Peru’s president) can result in a “politically-char ged” position to which political opinion might be imputed. Petitioners fail to make a compelling case, however, that Mr. Estrada’s duties, while significant in Peru’s war on terrorism, rose to the level of those described in Velarde

. Estrada also argues that the IJ failed to consider that if he is returned to Peru, the Shining Path may persecute him for his st atus as a “former police officer.” This argument was part of petitioners’ attempt to distinguish Matter of Fuentes , which the IJ implicitly rejected. Both Matter of Fuentes and
Cruz-Navarro acknowledge that “[p]ersons who are persecuted bec ause of their status as a former police or military officer . . . may constitute a cognizable social group under the INA,” Cruz-Navarro , 232 F.3d at 1029; see Matter of Fuentes , 19 I. & N. Dec. at 662, because status as a former police officer is an immutable characteristic that is beyond the power of the alien to change. Matter of Fuentes , 19 I. & N. Dec. at 662.-11-

Here, however, petitioners fail to carry their burd en of showing that Estrada has a well-founded fear of persecution as a former police officer. The IJ heard testimony that the Shining Path has targeted current political officials for assassination. Admin. R. at 110. Petitioners also presented information that the Shining Path had assassinated one former opponent, a high-profile political activist who left the country and then returned after two years. Id. at 454. Petitioners fail to provide compelling evidence, ho wever, that former policemen as a social group, even those who had engaged in anti-terrorist activities, face a well-founded fear of persecution from the Shining Path.
3. Other rationales in IJ’s decision We uphold the IJ’s decision that this case is governed by Matter of Fuentes

. Petitioners have failed to demonstrate past persecution or a well-founded fear of future persecution based on political opinion, imputed political opinion, or their membership in a class composed of former police off icers. Since they fail to meet the standard for asylum, they also have failed to e stablish the higher and more difficult standard for withholding of deportation, which requires that they establish “a clear probability of persecution on on e of the specified grounds.”
Krastev v. INS , 292 F.3d 1268, 1271 (10th Cir. 2002). Moreover, because of our holding on the Matter of Fuentes issue, we need not consider petitioners’ challenges to the other g rounds for the IJ’s decision,-12-

including his findings (or lack of same) concerning their ability to relocate. See Ustyan v. Ashcroft , 367 F.3d 1215, 1216 (10th Cir. 2004). The petition for review is DENIED.