NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION File Na me: 12a0507n.06

No. 10-4590 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT BARTOLO ME NICHOLAS-BARTOL OME, et al., P etitioner s,

v. ERIC H. HOL DER JR., Att orney G eneral, Respondent. / ON P ETIT ION F OR REVIEW F R O M T H E B O A R D O F IMMIG RATION AP P EALS

BEFORE: SUHRHEINRICH, MOORE, an d CLAY, Circuit Judges. CLAY, Circ uit Jud ge. Petitioners Ba rtolome Nicolas-B artolome, his wife Ana Nicolas, and their daug hter Estela Nicolas Gaspa r (collec tively “Petitioners”) petition f or revie w a decision of the Boa

rd of I mmigra tion Appea ls (“B I A”) deny ing their application for asy lum and withholding of re moval. For

the re asons set for

th below, we DENY the petition. BACK GR OUND Petitioners are natives and citizens of Guatema la. Ba rtolome Nicolas-B artolome and Anna Nicolas are fathe r and m o t h er , respectively , to daug hter Estella Nicolas Gaspa r. Petitioners are members of the Quiche tribe, an indige nous ethnic g roup i n Guatema la, and Ba rtolome Nicolas Ba rtolome (“B artolome” ) worke d as a f arme r in the fields. Ba rtolome illega lly enter ed the United States on April 25, 1989 to esca pe the on-g oing civil

war in his native country of Guatema la. On Dec ember 1, 1993, Ba rtolome filed an application forNo. 10-4590

benef its under the Nicar ag uan and Central Americ an Relief Act (NACARA) as well as applications for asy lum and withholding of remova l on the basis of past perse cution and a well-founde d fea r of perse cution on acc ount of h i s p o l i tical opi nion and his family ’s m ember ship in a particular social g roup, the Quiche- speaking indige nous g roup. An immigra tion e x aminer interviewe d Ba rtolome 1 in 1994. Petitioners filed ap p lications for Special Rule Cance llation of Removal with the Depa rtment of Homela

nd Security

(“D HS”) on De cembe r 21, 2005. An Asy lum Offic er interviewe d Ba rtolome on September 6, 2006. The Asy lum Offic er 2 stated in his assessment that Ba rtolome reque sted as y l u m beca use he fea

red perse cution in Guatema la on acc o u nt of hi s membership in a particular social g roup. The Asy lum Offic er noted t h at Ba rt o l o me did not claim membership to a particula r social g roup nor did he alleg e an y mistreatment by the gu er rillas. Ba sed on this information, the Asy lum Offic er found Ba

rtolome ineligible for as y l u m and ref err ed the matter to the immigra tion judge (“I J ”). DHS denied Petitioners’ applications, and on September 20, 2006, initiated remova l proce eding s. At the Marc h 27, 2007 remova l hear ing, Petitioners admitted to the alleg ations in the Notice to Appea r, conce ded

remova l, and re newe d their applica tions for asy lum and withholding of r emoval.

The I J deter

mined that Ba

rtolome was ineligible for NACARA relief beca use he untimely 1 submitt ed his application. Acc ording to the I J , Ba rtolome neede d to submit his application on or befor e De cembe r 31, 1991. The rec ord is void of any explanation as to why the asy lum office did not i n t er v iew 2 Ba rtolome u p o n h i s i nitial application for asy lum but instead ref err ed his application to the immigra tion court in 2006. 2No. 10-4590

A. The IJ Decision The I J conducte d a hear ing on Marc h 27, 2008. The I J hear d testimony from Ba rtolome, his wife, and his friend Nicolas Ba rtolome. Ba

rtolome alleg ed that in 1985, during the Guatema lan civil

war , Quiche- speaking g uerr illas came to his family ’s house, attacke d him, his wife, and children, and attempt ed t o re cr u i t him to join the g uerr illas. The g uerr illas are members of the Hispanic ethnic g roup, that spoke many of Guatema la’s indige nous lang uag es, and attempted to usurp the country ’s g overnme nt. Ba

rtolome ref

used to join the g uerr illas stating that he “ did not want to take sides in the conflict betwee n the g uerr illas and the g overnme nt.” Acc ording to Ba rtolome, the g uerr illas made death threa ts and also threa tened to separ ate him from his family

. As a result of these threa ts, Ba rtolome stated that he joined the civil patrol to protec t himself and his village

. He estimated that approximately

50 men participated i n the civil patrol. Ba rtolome testified t hat t he ar my also tried to rec ruit him but he also declined b ec au s e h e wanted to stay neutra l in the conflict. Ba rtolome stated that he only rec alled one direc t incident with the g uerr illas but he claimed that they continued to hara ss his village

. Ba

rt olome further stated that he never saw any other violent attacks by the g uerr illas but d i d hear about the g uerillas killing at least one village r and another village r was alleg edly tortured a

nd hang ed by

the g uerr illas. Ba rtolome testified that he f led the countr

y in 1989 and ca

me to the United States bec ause he wanted to protec t himself from the g uerr illas. Hi s fa m i l y remained in Guatema la until 1997. Ba rtolome returne d to Guatema la in 1998 to attend his fathe r’s funer al and he rema ined in the country for two months. He stated that he di d n o t encounte r any problems with the g uerr illas

3No. 10-4590

beca use they no longe r exis ted, but he claimed that the g u er ri l las rema ined a threa t beca use they continued to assault and ha rass the indig enous population. I n their applications for asy lum and withholding of remova l, Petitioner s al s o s ubmitted country repor

ts and newspa

per article s that discussed the country ’s co n ditions with respe ct to its indige nous population. After the conclusion of the hear ing, the I J issued an oral decision and order deny ing Petiti oners’ applications. First, the I J found bot h Ba rtolome’s and his wife’ s perse cution claims not cre dible. The I J stated that he w as unable to determine “ who was injure d and wha t the extent of the injury might have been.” The I J also noted that Ba rt o l o m e p rovi ded inconsistent response s during his inter view with the Asy lum Of fice r, on his a sy lum a

pplication, and during the I J hear ing. These response s rang ed fro m Ba rt olome never experiencing mistreatment while in Guatema la to his testimony that the g uerr illas phy sically attacke d him and his family

. The I J stated that even if Petitioners wer e found cre dible, Petitioners failed to demonstrate elig ibilit y for asy lum or withholding of

remova l. Second, the I J found that Petitioners failed to mee t their burden of proof that they

suffe red past perse cution in Guatema la. I n particula r, the I J commented that Ba rtolome’s single incident with the g uerr illas did not constitute perse cution as no blood was draw n and Ba rtolome did not seek medical a ttention. Third, the I J found that Petitioners failed to establish a well-fo u n d ed fea r of perse cution should they return to Guatema la. The I J conclude d that “ther e is no reliable evidenc e in the rec ord that the g uerr illas, in the one time they encounte red responde nt in 1985 to attempt to rec ruit him, did

so on acc ount of one of the five protec ted g rounds.” Moreove r, the I J noted that the four- y ear lapse

4No. 10-4590

betwee n the time that the gu er ri l l as alleg edly attacke d Petitioners in 1985 and the time that Ba rtolome left Guatemala for the Unit ed S tates i n 1989 dem o n s t rate d a lack of i mmediacy in any perc eived threa t of perse cution. Fur thermore , Ba

rtolome’s two-month return to Guatema la in 1998, in which he was unharme d and not bothere d by the g uerr illas, substantially wea kened h is wellfounded fea

r of perse cution claim. The I J also found no evidenc e to support Ba rtolome’s claim that t h e Guatemalan g overnme nt attempted to rec ruit him into the army for any rea son oth er t h an defe nding the country

. The I J further

found unconvinc ing Petitioners’ claim t hat t hey are members in a particular social g roup. The I J stated that Petitioners’ social g roup—the Quiche ethnicity —“lac ks the requisite social visability

” bec ause the rec ord provides no evidenc e that this pa rticular social g roup exists

. Moreove r, the I J deter

mined that there is no evidenc e that the g uerr illas are c urre ntly targ eting the Quiche ethnic g roup beca use the g uerr illas are no longe r in exis tence

. The I J noted that Ba rtolome testified to this point when he stated that the g uerr illas have disbanded. The I J stated that Petitioners’ backg round materia ls did not provide reliable evidenc e to support their contention that the g uerr illas were or rema in a threa t to the Quiche ethnic g roup. Ba sed on these rea sons, the I J conclude d that Petitioners did not demonstrate elig ibilit y for asy lum or withholding of remova l. The I J , howeve r, g rante d Petitioners’ post-hea ring voluntary

depar ture re quest. B. The BIA Decision On appeal, t he BI A af

fi rm ed the I J ’s decision on October 28, 2009. The BI A agr eed with the I J ’s deter

mination that Ba

rtolome did not provide cre dible testimony

. I n addition, the BI A noted that the “sing le instance of mistreatment descr ibed by him does not rise to the level of perse cution.”

5No. 10-4590

Howeve r, the BI A vacated the I J ’s order g ranting Petitioners voluntary depar ture beca use Petitioners failed to provide proof of pay ment of the voluntary

depar ture bonds. Petit i o n ers filed a petition for revie w to the Six th Circuit on November 20, 2009, but the matter was rema

nded on J une 4, 2010 to allow the BI A to revie w Petitioners’ elig ibilit y for voluntary depar ture in light of its decision in Matter of Velasco , 25 I &N Dec

. 143 (B I A 2009). On November 22, 2010, the BI A issued an order vaca ting the I J ’s order g ranting Petitioners voluntary depar ture but reissued its prior decision aff irming the I J ’s judgme nt of Petitioners’ elig ibilit y for asy lum and withholding of r emoval. Petitioners now timely seek r eview of

the B I A dec ision. DISCUSSIO N I. Statutory F ram ework The Attorney Gene ral may use his discretion to g rant asy lum to any alien who demonstrates that he is a “re fug ee” under section 208(a) of the I NA, 8 U.S.C. § 1158(a)

. Acc ording to the statute,

a “re fug ee” is define d as an alien “who is unable or unwilling to return to.

. . [hi s] country [of nationality ] beca

use of perse cution or a well-founde d fea r of perse cution on acc ount of rac e, relig ion, nationality , membership in a p ar t i cu l ar social g roup, or political opinion.

. . . ” 8 U.S.C. § 1101(a) (42)( A). Be cause Petitioners filed their applications for asy lum and withholding of remova l prior to May 11, 2005, the provisions of the REAL I D Act do not apply

. See REAL I D Act of 2005, §§ 101(a) (3), 101(c) , 101(d), Div. B. of Pub. L

. No. 109–13 Stat. 302, 303 (2005); see also Amir v. Gonzales , 467 F.3d 921, 925 n.4 ( 6th Cir. 2006).

6No. 10-4590

II. Analysis A. Adverse Cre dib ility Dete rm ination Where, as here , the BI A does n o t s ummarily aff irm the I J ’s decision, but revie ws the I J ’s d ec i s i o n and issues a separ ate opinion, we revie w the BI A’s decision as the final agen cy deter mination. Khalil i v. Holder , 557 F.3d 429, 435 (6th Cir. 2009). Questions of law are revie wed de novo . Id

. The BI A’s conclusion that an alien failed to testify cre dibly is a fac tual deter mination revie wed under the substantial evidenc e standar d

. S ee 8 U.S.C. § 1252(b)( 4)(B ); INS v. Elias Zacarias , 502 U.S. 478, 481 (1992); Hamida v. Gonzales , 478 F.3d 734, 736 (6th Cir. 2007). “An adver se cre dibilit y finding must be based on issues that g o to the hear t of the applicant’ s claim. They cannot be based on an irrele vant inconsistency .” Liti v. Gonzales , 411 F.3d 631, 637 (6th Cir. 2005) (quoting Sylla v. INS , 388 F.3d 924, 926 ( 6th Cir. 2004)). Petitioners first arg ue that there is insufficient evidenc e t o s u pport the BI A’s adver se

cre dibilit y deter

mina t i o n . I n its order deny ing asy lum relief , the I J ref

err ed to a number of discrepa ncies be tween sta tements Ba rtolome made to the Asy lum Office r and his testimony at the I J hear ing. The I J noted that Ba rtolome disclosed to the Asy lum Offic er that his family suffe red no harm at the hands of the g uerr i l l as . Howeve r, during the I J hear ing, Ba rtolome and his wife provided inconsistent testimony as to whether the g uerr illas actua lly injured or threa tened to injure their family

. The I J found and the BI A ag ree d that Ba

rtolome provided “eva sive,” “discursive ,” and “non-r esponsive” testimony , even when answe ring questions posed t o h im by his own counsel reg arding the mistreatment the g uerilla forc es inflicted on him. The I J further stated that Ba rtolome “off ers a varie ty of formulations about what happene d to h i m an d h i s wi fe in Guatema la. Either

7No. 10-4590

[Bartolome] was injured by the g uerr illas or [Bartolome] and his wife wer e injured by the g uerr illas

or [Bartolome], his wife, and family members, including y oung children wer e injured by the g uerr illas.” (AR 108–09.) I n addition, the I J commented that his wife also appea red confuse d about what happene d and could not corr oborate Ba rtolome’s testimony

. The BI A further ela b orate d by stating that Ba rt o l o m e provided “conf licting testimony reg arding which, if any , family members

wer e bea ten by

the g uerr illas.” (B I A dec ision 2.) The BI A’s adver se cre dibilit y deter mination was supported b y s u b s tantial evidenc e. Ba rtolome provided inconsistent acc ounts of his story throug hout the application proce ss including in his asy lum application, at his asy lum interview, an d b efor e the immigra tion court. First, Ba rtolome indicated on his asy lum application that he was neither harme d nor mistreated by any one in Guatema la and that others si milarly situated to him also did not i ncur a ttacks by the guer rillas. Second, Ba

rtolome admitted in his assessment with the Asy lum Offic er that he did not belong to any particula r social g roup and that he never persona lly experience d mistreatment nor did any members of his family

. Moreove r, the assessment stated that Ba rtolome did no t m ak e an y cl aim s of past perse cution and his sol e re as o n for leaving Guatema la was due to fea rs of poverty and economic depriva tion. The Asy lum Of fice r noted that Ba

rtolome did not make any statements reg arding the attack by the g uerr illas or provide an explan at i o n as t o why the Quiche indige nous g roup was specific ally

targ eted by

the g uerr illas. Finally , the I J appropr iately noted that Ba rtolome and his wife g ave confusing testimony at the I J hear ing. During the hea ring , Ba rtolome initially

stated that the g

uerr illas came to his house and assaulted both him and his w ife. L ater , Ba rtolome clar ified his statement and claimed that the

8No. 10-4590

g uerr illas only threa tened him afte r he ref used to join their rebe llion ag ainst the g overnme nt. Ba rtolome’s wife could n o t corr oborate his testimony

. She stated during the I J hear ing that she

rec alled being hit by the g uerr illas at home but then she stated that she could not reme mber exactly what tra nspired with the g uerr illas. I n addition, Ba

rtolome’s tes t i m o n y at the I J hear ing contra dicts his prior statements. As previo u s l y discussed, Ba rtolome initially told the Asy lum Offic er that neither he nor his family suffe red mistreatment by the g uerr illas; howeve r, at the I J hear ing Ba rtolome claimed that his i n t erpr eter provided a faulty translation and he in fac t was attacked by the guer rillas. When ask ed b y t h e I J to explain the g aps in translation in the interview, Ba rtolome stated that the interpre ter conducte d the interview in Spanish while his nati v e l an gu age i s Quiche. But the attorney for the g overnme nt noted that Ba rtolome broug ht his own interpre ter t o t h e interview and there was no indication in the rec ord to sug g est that Ba rtolome had trouble understanding the questions posed by the interpre ter a

nd he neve r ra ised any

objections about the que stions. Acc ording ly , substantial evidenc e supports the BI A’s adver se cre dibilit y deter mination. Ba rtolome provided inconsistent acc ounts of his alleg ed mistreatment by the g uerr illas in his asy lum application, asy lum interview an d at t h e I J hear ing. I n addition, Ba rtolome’s wife also g ave conflicting testimony during the I J hear ing, wh i ch fa i led to corr oborate Ba rtolome’s fea

r of perse cution should the family return to Gua

temala. B. P erse cution We revie w rele vant administrative fac tual findi n g s under the defe rential “substantial evidenc e” standard. The BI A’s fac tual findin gs must be upheld if “supported by rea sonable,

9No. 10-4590

substantial, and probative evidenc e on the rec ord considere d as a whole.” Y u v. Ashcroft , 364 F.3d 700, 702 (6th Cir. 2 0 0 4 ) (quoting INS v. Elias-Zacarias , 502 U.S. 478, 481 (1992) (interna l quotation marks omitted)). Under this standard, find i n g s of fac t by the BI A and the I J “ar e conclusive unless any rea sonable adjudicator would be compelled to conclude t o the contrary .” 8 U.S.C. § 1252(b)(4)( B)

. To deter mine whether Petitioners qualify for asy lum, we conduct a two-step inquiry : (1) whether Petitione rs qualify as ref ug ees based on 8 U.S.C. § 1101(a) (42)( A), and (2) whether Petitioners merit a “f

avora ble exercise of

discretion by

the [I J ].” Y

u , 364 F.3d a t 702. P et i t i o ners’ elig ibilit y for asy lum depends on whether they can “establish either that [t h ey have] suffe red actua l past perse cution or that [t hey have] a well-founde d fea r of future perse cution,”

on acc ount of rac e, relig ion, nationality , membership in a p a r ti c u la r s o c ia l g r o u

p , or political opinion. Pilica v. Ashcroft , 388 F.3d 941, 950 ( 6th Cir. 2004); see also 8 U.S.C. § 1101(a)(42) (A). We define pe rsec ution as follows: Persec ution encompa sses more than thre ats to life or fr eedom; non-life threa tening violence and phy sical abuse also fall within this cate g ory . Howeve r, to sustain an asy lum application, the conduct must rise above mere hara ssment. Ty pes of actions that might cross the l ine f ro m h ar assment t o perse cution include: detention, arr est, interrog ation, prosec ution, imprisonment, illega l sear ches, confisca tion of proper

ty , surveillance , beating s, or torture. Gilaj v. Gonzales , 408 F.3d 275, 285 (6th Cir. 2005) (citations omitted). Persec ution require s “more than a few isolated incidents of verba l hara ssment or intimi dation, unacc ompanied by any phy sical punishment, infliction of harm, or signific ant depriva tion of liberty .” Almuhtaseb v. Gonzales , 453 F.3d 743, 750 ( 6th Cir. 2006) (quoting Mikhailev itch v. INS , 146 F.3d 384, 390 ( 6th Cir. 1998).

10No. 10-4590

Petitioners arg ue that they experience d past perse cution and maintained a well-founde d fea r of perse cution on acc ount of Ba rtolome’s political opinion and Petitioners’ membership in a particula r social g roup—the Quiche- speaking indige nou s p o p u l at i on. The I J found and the BI A ag ree d that Petit io n e r s f

a ile d to establish past perse cution and Petitioners could not car ry their burden of showing a well-founde d fea r of perse cution. I n making this deter mination, the I J considere d Petit ioners’ application for asy lum, Ba rtolome’s interview with the Asy lum Offic er, Petitioners’ testimony at the I J hear ing, a

nd country

condition reports. 1. P ast P erse cution Petitioners’ past perse cution claim rests on their belief that the g uerr illas targ eted Ba rtolome and his fam i l y b ec ause he expressed neutra lity in the conflict betwee n the g uerr illas and the g overnme nt. As a result, Petitioners claim that he and his family wer e t h reatened and beate n. Petitioners also arg ue that they are members of the Quiche- speaking indige nous population of Guatema la, which constitutes a particula r social g roup that is entitled to a sy lum unde r the statute. The BI A ag ree d with the I J ’s deter mination that Ba

rtolome “provide d insufficient evidenc e to establish the g uerr illas mistreated him on acc ount of his political opinion, Quiche ethnicity , or any other protec ted g round.” (B I A Dec ision 3.) The BI A further noted that the rec ord did not provide any evidenc e to establish that the “g uerr i l l as as cribe d to any specific political opinion to him or soug ht to overcome any

political beliefs they

perc eived that he held.” ( Id .) I n this case , substantial evidenc e supports t he B I A’s dete rmination that Petiti oners did not

s u ff er h ar m rising to the level of perse cution. Contrary to Ba rtolome’s position that his politi ca l

neu t ra l i t y in the conflict betwee n the g uerr illas and the Guatema lan g overnme nt constituted a

11No. 10-4590

political opinion, there is no evidenc e in t h e record to conclude that the g uerr illas specific ally targ eted him beca

use of this neutra lity o r beca use of his membership with the Quiche indige nous population. “I t is not enoug h to prese nt evidenc e that the applicant had a political opinion or was a member of that social g roup. Evidence must be prese nted whi ch s u gges t s that the applicant was perse cuted on account of or because of the political opinion.” Marku v. Ashcroft , 380 F.3d 982, 986 (6th Cir. 2004) (interna l citation omitted). Petitioners offe r no evidenc e that the g uerr illas knew of or targ eted Petitioners as a result of their political ne utrality or member ship in the Quiche g roup. Petitioners’ claim also fa ils because Ba rtolome testified only

to one incident whe re he and his family

wer e alleg edly

attacke d and beaten by

the guer rillas. Petitioners must show that “he or she was specific ally targ eted by the g overnme nt for abuse based on a statutorily protec ted g round.” Gilaj , 408 F.3d at 285. I n this case , Petitioners failed to provide any indication of the g uerr ill as’ motives in targ eting the Quiche ethnic g roup or those who expressed neutra lity in the civil war . For these rea sons, the rec ord does not compel the conclusion that Pe titioners established past perse cution

or a well-founde d fea

r of perse cution on acc ount of a protec ted g round. As the BI A corr ectly found, this incident falls short of the showing Petitioners wer e require d to make in order to meet their burden of proving past perse cution. See Lumaj v. Gonzales , 462 F.3d 574, 577–78 (6th Cir. 2006) (finding that a single incident wher e an applicant was forc ed into a car , beate n, and suffe red a bodily injury did not amount to perse cution beca use i t was not sever e in nature ); see also Japarkulov a v. Holder , 615 F.3d 696, 701 (noting that “[i] n the vast majority of case s, . . . mere threa ts will not, in and of themselves, compel a finding of past perse cution.”) (citation omitted). Petitioners ma ke no additional claims of perse cution bey ond the single incident and they fail to provide proof that the

12No. 10-4590

g uerr illas routinely perse cuted those who expressed political neutra lity or wer e members of the Quiche g roup. I n addition, Ba

rtolome could not specify whether the g uerr illas continued to mistreat not only him but other p eo ple in his village

. When asked on direc t examination whether any members of Ba rtolome’s village wer e harme d by the g uerr illas, Ba rtolome responde d that he was unsure whether the g uerr illas posed an actua l threa t to his village

. He stated that he did not actua lly see the g uerr illas harming any

one but “just hear d” about it. He then emphasized that he never obser ved any acts of violence or mistreatment by the g uerr illas. Despite this testi m o n y , Ba rt olome now claims that beca use he experi enced a rela tively non-violent attack by the g uerr illas, then hear d about the possibili ty of threa ts made to other village rs, and subsequently is a fra id that such possibili ties may happen to him and h i s family , alleg edly constitutes sufficie nt proof of past perse cution. But Petitioners’ arg uments of fea red trea tment are essentially based on hear say evidenc e and the rec ord does not compel a

reve rsal of the BI A’s conc lusion on the issue of past perse cution. 2. Well-F ound ed F ear of P erse cution Nex t , P eti tioners claim that the rec ord compels a finding of a well-founde d fea r of perse cution. Be cause Petitione rs d i d n o t suffe r past perse cution, they are not entitled to a presumption of future harm. See 8 C.F.R. § 1208.16(b)( 2). I nstead, Petitioners car ry the burden of showing a well-founde d fea r of perse cution on acc ount of a protec ted g round. Id

. Petitioners submit

as evidenc e United States De p ar t ment of State Country Reports and other article s, that mention “indig enous people ” as a

particula r social g roup within Guatema la.

13No. 10-4590

We ag ree with the BI A’s deter mination, which found that Petitioners provided insufficient evidenc e to meet their burden of proof o f es t ablishing a well-founde d fea r of perse cution. Specifica lly , the BI A not ed that Bartolome’ s documentar y evidenc e contradicts hi s statement t hat the g uerr illas “have formed g ang s and co ntinue to seek out and perse cute him on a protec ted g round.” ( BI A Dec ision 3.) The B I A found that B artolome’s e vidence shows that the Guatemalan civil w ar ended more than fiftee n y ear s ag o and the g uerr illas do not ma intain a strong prese nce in the country

. Ba

rtolome even conce ded this point during the I J hear ing when he stated, “ther e is no g uerr illas any

more. There are no g uerr illas. They said that there is peac e there .” (AR 202.) Moreove r, Ba

rtolome admitted during the I J hear ing that upon his return to the country in 1998, he did not experience any harm or threa ts by the g uerr illas. Ba rtolome’s two-month stay in Guatema la is inconsistent with Petitioner’s now stated fea r o f returning to his native country

. Ba rtolome’s admission that his return to Guatema l a wa s relatively safe and fre e from any interac tion with the g uerr illas further supports the BI A’s decision that there is no real t h re at of individualiz ed perse cution. Additional evidenc e further supports the BI A’s decision that a fea r of perse cution no longe r exis ts. We previously stated in Pascual v. Mukask ey that the conflict betwee n the g uerr illas and the Guatema lan g overnme nt ended in 1996 and furthe r stated that “as the war subsided, so did any objectively rea sonable fea r of perse cution.” 514 F.3d 483, 488 (6th Cir. 2007). The country repor ts that Petitioners submit are also unpersua sive. The U.S. D epar tment of State Report does not eve n identify the Quiche g roup as pa rt of its discussion in the indigenous people section. Fur thermore , the country repor

t does not mention that Guatema la’s indige nous population continues to experience

14No. 10-4590

perse cution by the g uerr illa s ; ra t h er, the repor t discusses their continued plight to rec eive equal trea tment in the country ’s political, economic, a nd social opportunities. I n sum, the BI A properly conclude d that Petitioner s fa i l ed t o demonstrate either past perse cution or a well-founde d fea r of perse cution on acc ount of a prote cted g round. III. Withhol din g of Rem oval An alien se eking withholding of removal mus t show a “clear probability ” that he w ill face perse cution on acc ount of a protec ted g round in t h e country to which he will be remove d. INS v. Stevic , 467 U.S. 407, 430 (1984). “Withholdi ng of remova l is mandatory if an alien establishes that his ‘life or fre edom would be threa tened in the proposed country of remova l o n acc ount of rac e, relig ion, nationality , membership in a particula r social g roup, or political opinion.” Pilica , 388 F.3d at 951 (quoting 8 C.F.R. § 208.16(b))

. Under this standard, an alien must show that it is “more likely than not” that he w ill be subj ect to perse cution on acc ount of a protec ted ground if returne d to his native countr

y . Pilica , 388 F.3d a t 951. To qualify for withholding of remova l, an alien must show a “cle ar probability ” of perse cution. Liti , 411 F.3d a t 640. I n addition, an alien must establish that “it is more li kely than not that [he]

. . . wo u l d be perse cuted on acc ount of [a protec ted g round] upon remova l to that country .” Haider v. H

older , 595 F.3d 276, 284 (6th Cir. 2010) (alterations i n orig inal) (quoting 8 C.F.R. § 208.16(b)( 2)). P etitioners contend that the BI A err ed in deny ing their application for withholding o f

remova l. Under 8 U.S.C. § 1231(b)( 3), “[a]n alien seeking with h o l ding of remova l must demonstrate that there is a clea r probability that he will be subject to perse cution if forc ed to return

15No. 10-4590

to the country of remova l.” Singh v. Ashcroft , 398 F.3d 396, 401 (6th Cir. 2005) (interna l quotation marks and citation omitted). “B eca use an alien must meet a highe r burden in establishing a rig ht to withholding of remova l th an i n demonstrating asy lum elig ibilit y , an alien who fails to qualify for asy lum nece ssarily does not qualify for withholding of remova l.” Id. The clea r probability standard is highe r than the “we ll-founded fea r” standard nece ssary to establish elig ibilit y for asy lum and require s Petitioners to show that it is “more likely than not” that they will be subject to perse cution

on acc ount of a protec ted g round if returne d to Guatema la. Be cause Petitioners failed to satisfy their burden f or asylum protection, Petitioners also failed to qua lify for withholding of re moval. CONCLUSION Substantial evidenc e supports t h e BI A’s adver se cre dibilit y deter mination as Petitioners provided inconsistent testimony d u ri n g t h e I J hear ing and there wer e sever al noted discrepa ncies within Petitioners’ appli cations for asy lum and withholding of remova l conce rning the perc eived threa t of t he guer

rillas. See El Moussa v. Holder , 569 F.3d 250, 257 (6th Cir. 2009). I n addition, Petitioners failed to establish past perse cution or a w ell-founde d fea r of pe rsec ution if removed to Guatema la that would entitle them to asy lum or withholding of remova l. For t h ese rea sons, we DENY the petition for re view.

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