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 Petitioners.

Peter D. Keisler, Assistant Attorney General, Civil Division, Terri J. Scadron,

Assistant Director, Jennifer A. Parker, Trial Attorney, Office of Immigration
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Litigation, Civil Division, U.S. Department of Justice, Washington, D.C.,

for Respondent.

Mary A. Kenney, Beth Werlin, and Nadine K. Wettstein, Washington, D.C.,

American Immigration Law Foundation, as Amicus Curiae.

Before EBEL , BALDOCK , and LUCERO , Circuit Judges.

BALDOCK , Circuit Judge.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

Petitioners are natives and citizens of Peru. They have overstayed their

visitors’ visas to this country and acknowledge their status as removable aliens. 

They assert, however, that they fear for their lives if returned to Peru because

a terrorist group known as the Sendero Luminoso (“Shining Path”) has marked

them for assassination. Petitioners seek review of an order of the Bureau of

Immigration Appeals (BIA) summarily affirming the decision of an immigration

judge (IJ) denying their applications for asylum and withholding of removal.
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FACTS

The principal petitioner, Marco Antonio Estrada-Escobar (Mr. Estrada),

entered this country as a visitor on June 9, 1989. The other petitioners, his family

members, had previously entered this country on April 6, 1989, also on visitors’

visas.

Mr. Estrada became a Peruvian police officer in 1974. He rose through the

ranks, eventually obtaining the rank of major in the 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 three 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 engaged in a campaign of

politically-motivated attacks on persons and property, including assassinations of

police, judges and public officials. He further found, however, that the number of

guerillas has declined markedly in recent years because the government has made

large-scale arrests and has recently captured the head of the Shining Path

organization.
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Mrs. Estrada, Mr. Estrada’s wife, testified that while Mr. Estrada was in the

emergency zone, she received a telephone call purporting 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 area 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 children 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 that he and his family would be

killed. The caller alluded to the Shining Path. The 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 States with their children,

while Mr. Estrada remained in Peru. Eventually, at their 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 the force for a period of nine

months, then for a period of two years, and finally remained in this country. The

police eventually granted him retirement from the force, in June 1994.

After a hearing, the IJ provided four reasons why petitioners should be

denied asylum and withholding of deportation: (1) it is not considered persecution

when a police officer receives threats because of his duties as a police officer
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(citing Matter of Fuentes , 19 I. & N. Dec. 658 (BIA 1988)); (2) petitioners failed

to show that the government of Peru was unable or unwilling 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 they were living; and (4) other

family members have continued on with their lives in 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 imputed political opinion and

Estrada’s status as a former police officer; (3) the 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 failed to make a finding

concerning well-founded fear of persecution; (6) the BIA’s streamlined decision

violates due process and its own regulation governing 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, supported by the amicus, that

the BIA’s use of the affirmance-without-opinion procedure violated their

constitutional right to due process. We rejected that argument in Yuk v. Ashcroft ,
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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 affirmance-without-opinion

procedure because the issues on appeal are substantial, 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 analysis of the merits of petitioners’

case.

To be eligible for asylum, an alien must first establish his status as

a “refugee.” Wiransane , 366 F.3d at 893. To establish refugee status, the

applicant must demonstrate that he has suffered past persecution or has

“a well-founded fear of [future] persecution on account of race, religion,

nationality, membership in a particular social group, or political opinion.” 

8 U.S.C. § 1101(a)(42)(A). “Persecution” under this section means not only

persecution by the government but also by a non-governmental 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 persecution must show both a genuine,

subjective fear of persecution, and an objective basis by credible, direct, and

specific evidence in the record, of facts that would support a reasonable fear of

persecution.” Wiransane , 366 F.3d at 893 (quotation omitted).
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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 findings 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 the 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 Salvador, who had

also served as a guard at the United States Embassy, sought asylum based on

allegations of a well-founded fear of persecution by leftist guerillas. “The

guerillas . . . knew him by name, knew he was a member 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 the 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 a policeman on account of his
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political opinion; that the future danger he described 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 would 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 social 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 essentially overlap. First,

they claim, the threats against Estrada and his family are terrorist threats, rather

than the types of threats an alien typically may encounter due to combat or

employment as a policeman. Second, Peru is not a country 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 these arguments. The rationale in

Fuentes applies to terrorist activities, including those of 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 than because 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 case is distinguished because
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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 family members, 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 officer, rather than because of his

political opinion.

2. Imputed Political Opinion/Status as Former Police Officer

Petitioners next argue that the Shining Path imputed a political opinion to

Estrada because of his service in protecting the “faceless judges” and his police

work in the emergency zone, and persecuted him or will persecute him because of

this imputed opinion. Matter of Fuentes does not expressly address the issue of

“imputed” political opinion, and petitioners contend 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 counsel’s argument stating that

[Matter of Fuentes ] was not controlling” and that he had concluded that it was. 

Admin. R. at 81. Thus, he implicitly rejected their “imputed political opinion”

argument.

The evidence supports the IJ’s conclusion on this point. 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
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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 proposition that

high-profile police duties (in that case, serving as bodyguard to the daughters of

Peru’s president) can result in a “politically-charged” 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 status 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 because 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.
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Here, however, petitioners fail to carry their burden 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, however, 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 officers. Since they fail to meet

the standard for asylum, they also have failed to establish the higher and more

difficult standard for withholding of deportation, which requires that they

establish “a clear probability of persecution on one 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 grounds for the IJ’s decision,
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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.