E. Rivera-Campos v. John Ashcroft , 163 F. App'x 439 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-4173
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Eduardo Antonio Rivera-Campos, *
*
Petitioner, *
* Petition for Review of
v. * an Order of the Board of
* Immigration Appeals.
1
Alberto Gonzales, United States *
Attorney General, * [UNPUBLISHED]
*
Respondent. *
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Submitted: January 20, 2006
Filed: January 25, 2006
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Before ARNOLD, BYE, and SMITH, Circuit Judges.
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PER CURIAM.
Eduardo Antonio Rivera-Campos, a citizen of El Salvador, petitions for review
of an order of the Board of Immigration Appeals (BIA) affirming an Immigration
Judge’s (IJ’s) denial of his applications for asylum and withholding of removal. In
May 2001 Rivera-Campos entered the United States without inspection. In a January
2002 application, he sought asylum based on his past involvement in the Nationalist
1
Alberto Gonzales has been appointed to serve as United States Attorney
General, and is substituted as respondent pursuant to Federal Rule of Appellate
Procedure 43(c).
Republican Alliance (ARENA), a political party. Rivera-Campos thereafter testified
that he had received three threatening notes from members of the Farabudo Marti
National Liberation Front (FMLN), and that he had received an oral threat from two
FMLN members.
This court will uphold the denial of asylum and withholding of removal if the
denial is supported by substantial, reasonable, and probative evidence on the record
as a whole; the standard of review is deferential and requires upholding the denial
unless an alien demonstrates that his evidence was so compelling that no reasonable
fact finder could adopt the BIA’s position. See Eta-Ndu v. Gonzales, 411 F.3d 977,
982-83 (8th Cir. 2005). Where, as here, the BIA affirms without an opinion, the IJ’s
conclusions are treated as those of the BIA. See Kimumwe v. Gonzales, 431 F.3d
319, 321-22 (8th Cir. 2005).
We find that the record taken as a whole supports the IJ’s determination that
Rivera-Campos failed to establish past persecution. First, all but one of the threats
were vague and non-specific, and the threatening notes did not mention ARENA or
FMLN. Second, the notes were unsigned, and Rivera-Campos did not himself see
who left them. Third, none of the threats were carried out. Fourth, there was nothing
in the State Department reports indicating that ARENA members are targeted by
FMLN members or that the police support the FMLN. See Lorenzo-Gonzales v.
Gonzales, 419 F.3d 754, 755-56 (8th Cir. 2005) (per curiam) (unfulfilled threats alone
do not constitute past persecution, unless they are so menacing as to cause significant
actual suffering or harm; asylum claim properly rejected in part because there was no
clear evidence as to identity of attackers or motives for attacks).
We also find that Rivera-Campos failed to offer credible, specific evidence that
a reasonable person in his position would fear persecution if returned to El Salvador.
See Kondakova v. Ashcroft, 383 F.3d 792, 798 (8th Cir. 2004), cert. denied, 125 S.
Ct. 894 (2005). The State Department reports did not support the existence of a
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reasonable basis for his fear of death or kidnaping at the hands of the FMLN. See
Lorenzo-Gonzales, 419 F.3d at 756 (IJ may reasonably rely on State Department
reports on current country conditions as they relate to likelihood of future
persecutions). Further, numerous family members--also ARENA supporters,
according to Rivera-Campos--remained in El Salvador without being harmed; and
Rivera-Campos did not explain why he waited until May 2001 to leave El Salvador
after receiving the third threatening note in January 2000. See Alyas v. Gonzales, 419
F.3d 756, 761 & n.2 (8th Cir. 2005) (asylum applicant failed to establish well-founded
fear of persecution because he had continued to live unharmed in native country for
4 years following alleged incidents of persecution, and his family members remained
in native country unharmed).
Finally, because Rivera-Campos’s asylum claim fails, his claim for withholding
of removal necessarily fails as well. See Eta-Ndu, 411 F.3d at 986 (standard of proof
for withholding of removal is more stringent than standard for asylum).
Accordingly, we deny Rivera-Campos’s petition for review.
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