Orlando Chajon v. Alberto Gonzales , 138 F. App'x 888 ( 2005 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 04-2174
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Orlando Carillas Chajon, *
*
Petitioner, *
* Petition for Review of an
v. * Order of the Board of
* Immigration Appeals
Alberto Gonzales, Attorney General *
of the United States, * [UNPUBLISHED]
*
Respondent. *
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Submitted: February 22, 2005
Filed: July 14, 2005
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Before MELLOY, McMILLIAN, and GRUENDER, Circuit Judges.
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PER CURIAM.
Guatemalan citizen Orlando Carillas Chajon petitions for review of an order
of the Board of Immigration Appeals affirming an Immigration Judge’s (IJ’s) denial
of his application for asylum and withholding of removal.1 Having carefully
reviewed the record, see Menendez-Donis v. Ashcroft, 360 F.3d 915, 917-19 (8th Cir.
2004) (standard of review), we deny his petition.
1
Chajon is not challenging the IJ’s decisions to deny him voluntary departure
or relief under the Convention Against Torture. See Chay-Velasquez v. Ashcroft, 367
F.3d 751, 756 (8th Cir. 2004).
The IJ’s finding that there was no past persecution based on a protected
ground, i.e., political opinion, was based on substantial evidence. Chajon testified
that he and his family were not members of any political organization, the military,
or civil forces, and he offered no evidence to support his belief that guerillas were
involved in the 1996 shooting of his father, or to show that guerillas forced his
mother to flee to Guatemala City after his father’s death. See INS v. Elias-Zacarias,
502 U.S. 478, 482-84 (1992) (upholding denial of asylum to Guatemalan citizen who
claimed to have fled guerilla forces attempting to recruit him, as record did not show
guerillas sought to recruit him based on his political opinion; it is not sufficient that
guerillas were attempting to fill their ranks). While a prehearing sworn statement
indicates Chajon told the guerillas he wanted to remain neutral, and Chajon testified
that he refused to join the guerillas and had heard they came looking for him after he
left for Guatemala City, Chajon also testified that the guerillas targeted his family
because they were seeking information about people in the community who had
money. A reasonable factfinder could find such evidence insufficient to support an
asylum claim based on imputed political opinion or neutrality. See Elias-Zacarias,
502 U.S. 483 (applicant must provide some evidence of guerillas’ motive); cf. Lopez-
Zeron v. U.S. Dep’t of Justice, 8 F.3d 636, 637-38 (8th Cir. 1993) (per curiam)
(Honduran applicants, who had resisted recruitment by guerillas, did not show
persecution connected to or based on political neutrality: they had not made political
statements, taken political positions, or been involved in any organizations, and they
did not testify they were targeted because of political neutrality). Because the
evidence did not show that the incidents Chajon described were based on a protected
ground, it is unnecessary to consider whether the incidents constituted persecution.
Where, as here, an asylum applicant fails to establish past persecution, he is not
entitled to a presumption that his fear of future persecution is well founded, and he
must independently establish such a fear. See Kondakova v. Ashcroft, 383 F.3d 792,
798 (8th Cir. 2004) (applicant must generally fear persecution and offer credible,
specific evidence that reasonable person in his position would fear persecution if
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returned), cert. denied, 125 S. Ct. 894 (2005). We agree with the IJ that Chajon failed
to do so. Since his 1993 arrival in the United States, guerillas have disbanded; his
father’s shooting occurred in April 1996 after the guerillas ceased offensive
operations in March 1996; and Chajon and his mother had no further contact with the
guerillas once they moved to Guatemala City, which is consistent with a State
Department report indicating the guerillas have difficulty tracking people who
relocate. See Regalado-Garcia v. INS, 305 F.3d 784, 788 (8th Cir. 2002) (objective
reasonableness of petitioner’s fear of future persecution was undermined by changed
conditions in his home country). Contrary to Chajon’s assertion on appeal, the IJ did
not err by finding speculative his testimony about the reasons he feared returning to
Guatemala. Cf. Ghasemimehr v. INS, 7 F.3d at 1389, 1390-91 (8th Cir. 1993) (per
curiam) (reasonable factfinder could find that Iranian petitioner lacked well-founded
fear of political persecution: IJ relied in part on finding petitioner’s testimony--i.e.,
he believed that he had been photographed by Iranian he did not know during anti-
Iranian government demonstration in United States, and that photograph had been
sent to Iranian government--lacked credibility as it was too general and speculative).
Because Chajon’s asylum claim failed, his claim for withholding of removal
necessarily failed as well. See Lopez-Zeron, 8 F.3d at 638. Accordingly, we deny
his petition for review.
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