David A. Carcamo-Recinos v. John Ashcroft, United States Attorney General

*Of the District of New Hampshire, sitting by designation.
United States Court of Appeals
For the First Circuit
No. 03-2428
DAVID A. CARCAMO-RECINOS,
Petitioner,
v.
JOHN ASHCROFT, UNITED STATES ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Torruella and Howard, Circuit Judges,
DiClerico,* District Judge.
Rebecca O'Brien Radford with whom Goulston & Storrs was on
brief, for petitioner.
Jonathan F. Potter with whom Peter D. Keisler, Assistant
Attorney General, Civil Division, Michael P. Lindemann, Assistant
Director, Office of Immigration Litigation and Douglas E. Ginsburg,
Senior Litigation Counsel, Office of Immigration Litigation, Civil
Division, were on brief, for respondent.
November 23, 2004

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1 The relevant functions of the INS were transferred to the
Department of Homeland Security and reorganized into the Bureau of
Immigration and Customs Enforcement in March 2003. Because the
relevant events took place prior to the reorganization, we continue
to refer to the INS.
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HOWARD, Circuit Judge. David Carcamo-Recinos, a native
of Guatemala, petitions for review of an order of the Board of
Immigration Appeals ("BIA") affirming an immigration judge's
("IJ's") denial of his request for asylum and withholding of
removal. The pertinent background follows.
On May 22, 1998, the Immigration and Naturalization
Service1 ("INS") issued a Notice to Appear to Carcamo, alleging
that he was an alien removable for staying beyond the term of his
visitor's visa. See 8 U.S.C. § 1227(a)(1)(B). Carcamo admitted
that he was removable, but he sought asylum and withholding of
removal on the ground that he had been persecuted because of his
political views. At his hearing, Carcamo presented documentary
evidence, his own testimony, and the testimony of an expert
witness. We summarize this evidence, noting ambiguities or
inconsistencies where necessary and reserving detailed discussion
of some facts for our analysis.
Carcamo served as mayor of the town of Jalapa, Guatemala
from January 16, 1991 to January 16, 1996. He was elected as a
member of the Union de Centro National (National Center Union)
party ("UCN"), and he advanced a platform of tax reform (which
included collecting delinquent taxes), providing services to the
poor, and promoting greater financial autonomy for municipalities.

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2 Carcamo states that this deputy position is roughly
equivalent to a member of Congress or a senator in our system.
3 The Department of Jalapa is the large area around the city
of Jalapa that is roughly equivalent to a congressional district or
state in the United States.
-3-
In April 1993, Carcamo began a one-year term as president of the
National Association of Mayors (Spanish acronym "ANAM"), an
organization that represents the interests of Guatemalan mayors and
seeks increased municipal autonomy from the central government.
The presidency of ANAM provided Carcamo with greater notoriety and
media attention and enabled him to advance his reforms.
Carcamo maintained that his actions as a nationally
renowned crusader for controversial reforms brought him into
conflict with powerful economic interests, including businesses and
large landowners, that sought to preserve the status quo by
ruthlessly persecuting political enemies. Carcamo asserted that
these entities are so influential with the national government,
the army, and the national police that they operate outside the law
and government control. Carcamo noted that the previous mayor and
deputy2 for the Department of Jalapa3 had been murdered in 1990.
Carcamo testified that he received a written threat in
April 1991, which stated that he would be killed because he "was
pursuing things in politics that [he] should not do." He explained
that he destroyed the note because he was afraid; however, in his
asylum application, Carcamo stated that he destroyed it because he
did not take it seriously. Carcamo also testified to receiving
frequent telephonic death threats at his home and office.

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4 As mayor, Carcamo was assigned a bodyguard at government
expense.
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Generally, the threats stated that he would be killed because he
"was into things that [he] should not be in." The frequency of the
threats peaked during his tenure as ANAM president in 1993-94. In
his asylum application, Carcamo indicated that the threats were of
two types: (1) threats related to political activity; and (2)
threats based on the perception that he was wealthy and therefore
worth kidnaping.
During this same period, Carcamo's wife and bodyguard4
reported that armed men passed his home on approximately four
occasions. Carcamo also testified to another encounter with armed
men during a trip to Guatemala City with the town treasurer in
1994. On the return trip, the two (who had traveled in separate
vehicles) switched cars. While en route back to Jalapa, a red car
full of armed men pulled alongside the treasurer's car. One man
then pointed a machine gun out the window. No shots were fired,
and the red car sped away. Carcamo maintained that the individuals
aborted their attack when they realized that he was not in the car.
Carcamo did not recount this incident in his asylum application.
Carcamo never reported the threats to the national or
local police, because he believed that they were corrupt and
possibly in league with the individuals threatening him, and
because other politicians who had reported threats to the police
were killed anyway. He did, however, report the threats to

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5 The procurator is a human rights ombudsperson who can
investigate and report human rights abuses but lacks law
enforcement power.
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Guatemala's Human Rights Procurator, who investigated the case and
concluded that the danger to Carcamo was real.5
While mayor, Carcamo made approximately fifteen official
trips abroad, including several to the United States. He always
returned to Guatemala and his mayoral duties at the conclusion of
these trips.
In 1995, Carcamo sought national office as deputy for the
Department of Jalapa, but was defeated in the election. He left
the office of mayor on January 16, 1996. After leaving public
life, Carcamo moved to the southern coast of Guatemala and turned
to dairy farming. At first, he felt safe in his new location.
However, in August 1996 or February 1997, his cousin informed him
that he had heard that Carcamo was on a kidnaping/assassination
list. Carcamo testified that another individual on the same list
had been kidnaped. In his asylum application, Carcamo stated that
he believed kidnaping meant certain death for him because he did
not have enough money to satisfy a ransom demand.
After this incident, Carcamo decided to leave Guatemala
for the United States. He arrived in the United States on March
18, 1997. He maintains that because of his notoriety, there is no
place in Guatemala where he can live safely.
Professor Clark E. Taylor, Carcamo's expert on conditions
in Guatemala, testified that Carcamo would be a marked man if he
returned to Guatemala because of his efforts at political reform.

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He also testified that crusading politicians were at great risk
from various reactionary forces in Guatemalan society, including
large landowners, and that these forces act with impunity because
of their close ties to the central government and the corrupt
national police. Professor Taylor stated that the government and
police are unwilling or unable to protect individuals such as
Carcamo, many of whom continue to seek reform despite the risk to
themselves. Professor Taylor also testified to rampant lawlessness
in Guatemala and to the regularity of political assassinations
there.
The IJ denied relief, concluding that Carcamo had failed
to prove either that the threats that he endured constituted
persecution or that Carcamo harbored a reasonable fear of future
persecution. As to past persecution, the IJ was persuaded by the
facts that Carcamo was never harmed or directly confronted,
maintained an active political career, traveled abroad and returned
on numerous occasions, and did not establish a likely source of the
threats. As to a fear of future persecution, the IJ emphasized
Carcamo's travel abroad and that he and his family were never
harmed. The BIA summarily affirmed the IJ's decision.
This court reviews BIA decisions under the deferential
"substantial evidence" standard. Mihaylov v. Ashcroft, 379 F.3d
15, 17 (1st Cir. 2004). The BIA's decision will be upheld "if
supported by reasonable, substantial, and probative evidence on the
record considered as a whole." Khalil v. Ashcroft, 337 F.3d 50, 55
(1st Cir. 2003)(internal quote omitted). "To reverse the BIA

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finding we must find that the evidence not only supports that
conclusion, but compels it ...." INS v. Elias-Zacarias, 502 U.S.
478, 481 n. 1 (1992)(emphases in original); see also Albathani v.
INS, 318 F.3d 365, 372 (1st Cir. 2003)("Merely identifying
alternative findings that could be supported by substantial
evidence is insufficient to supplant the BIA's findings."). In
contrast, questions of law are reviewed de novo. Romilus v.
Ashcroft, 385 F.3d 1, 5 (1st Cir. 2004).
Where the BIA summarily affirms the IJ's decision, this
court reviews the IJ's decision. Id.; Samayoa Cabrera v. Ashcroft,
367 F.3d 10, 13 (1st Cir. 2004).
Carcamo argues that the IJ made the following errors: (1)
he improperly required Carcamo to show that the government was his
persecutor; (2) he improperly required Carcamo to specifically
identify his persecutors; (3) he improperly determined that
Carcamo's willingness to risk his life foreclosed a finding of a
well-founded fear of persecution; (4) he improperly disregarded
Carcamo's credible testimony that his fear was genuine; and (5) he
improperly disregarded corroborating evidence that Carcamo's fear
was objectively reasonable.
We begin our analysis by focusing on Carcamo's
entitlement to asylum, because Carcamo cannot establish an
entitlement to withholding of removal if he is ineligible for
asylum. See Nelson v. INS, 232 F.3d 258, 261 n.2 (1st Cir. 2000).
The alien bears the burden of establishing eligibility for asylum

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by showing that he qualifies as a "refugee." Afful v. Ashcroft,
380 F.3d 1,3 (1st Cir. 2004).
The term 'refugee' means (A) any person who is
outside any country of such person's
nationality...and who is unable or unwilling
to return to, and is unable or unwilling to
avail himself or herself of the protection of,
that country because of persecution or a well-
founded fear of persecution on account of
race, religion, nationality, membership in a
particular social group, or political opinion
....
8 U.S.C. §1101(a)(42)(A). A petitioner can show that he is a
refugee entitled to asylum in one of two ways: (1) demonstrating
past persecution, which creates a presumption of a well-founded
fear of persecution (which the government may rebut); or (2)
demonstrating a well-founded fear of future persecution. El
Moraghy v. Ashcroft, 331 F.3d 195, 202 (1st Cir. 2003).
"To prove past persecution, an applicant must provide
'conclusive evidence' that he has suffered persecution on one of
the five protected grounds: race, religion, nationality, membership
in a particular social group, or political opinion." Romilus, 385
F.3d at 6. To demonstrate a well-founded fear of future
persecution, the applicant must prove that his fear is both genuine
and objectively reasonable. See El Moraghy, 331 F.3d at 203. The
applicant's testimony may be sufficient to demonstrate the
objective reasonableness of his fear, "but [the testimony] must
constitute credible and specific evidence of a reasonable fear of
persecution." Afful, 380 F.3d at 3.
Carcamo's first two arguments seek to undermine the IJ's
determination that Carcamo did not suffer past persecution. But

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these arguments only address one aspect of the IJ's reasoning: that
the evidence did not establish the likely source of the threats and
thus failed to establish that they were motivated by one of the
five statutorily-protected grounds. See Romilus, 385 F.3d at 6.
In other words, Carcamo has failed to question the IJ's independent
determination that the harassment he suffered does not rise to the
level of "persecution" within the meaning of our asylum laws.
Accordingly, Carcamo cannot prevail in his effort to secure a
presumption of likely future persecution because he previously has
been persecuted. Cf. In re Public Serv. Co. of N.H., 879 F.2d 987,
989-90 (1st Cir. 1989) (per curiam) (affirming because appellant
failed to challenge one of two alternative bases for the lower
court's decision). We consequently confine our focus to Carcamo's
arguments in support of his claim that the IJ erred in concluding
that he lacked a well-founded fear of future persecution. But in
doing so, we note in passing that the IJ's unchallenged
determination that the threats Carcamo suffered did not amount to
persecution appears to us to have been within his wide discretion.
See Elias-Zacarias, 502 U.S. at 481 n.1 (emphasizing the high
degree of deference to be accorded administrative factual findings
in immigration cases); Nelson, 232 F.3d at 263 ("To qualify as
persecution, a person's experience must rise above unpleasantness,
harassment, and even basic suffering.").
Carcamo does not really argue that the administrative
record lacks substantial evidence to support the IJ's future-
persecution finding. Nor could he. After all, there is evidence

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6 True, Carcamo allegedly learned that he was on a kidnaping
list shortly before he left the country in 1997. But this evidence
does not compel a finding in Carcamo's favor. Carcamo's cousin,
who allegedly told Carcamo about the list, never saw it himself.
Moreover, Carcamo presented no evidence of who created the list,
when the list was created, or when his name was added to it.
Perhaps more importantly, Carcamo presented no evidence that he was
added to the list on account of his political opinions. Indeed,
Carcamo's conclusory testimony that he was on the list because of
his political opinions was undermined by his statement, in his
asylum application, that he feared being on the list because he
would be unable to pay a ransom if he were to be kidnaped. This
statement tends to suggest that the alleged would-be kidnapers were
motivated by the prospect of economic gain and not Carcamo's
political beliefs.
7 Carcamo's expert testified that a mayor who had angered
well-connected persecutors "would be in more jeopardy" than the
mayor's family, but he also admitted that "plenty . . . [of] family
members have been harmed" and that, in the case of a particularly
high profile politician, the family is a more likely target.
Carcamo has repeatedly argued that he was a high profile
politician, who was "nationally renowned" as "the face of tax
reforms." Pet. Br. at 4, 14.
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that Carcamo willingly returned to Guatemala on several occasions
during the time period when he was being threatened, see, e.g.,
Albathani, 318 F.3d at 373; Aguilar-Solis v. INS, 168 F.3d 565, 574
n.7 (1st Cir. 1999); that Carcamo remained in Guatemala for more
than two years after the alleged persecution peaked, see Ravindran
v. INS, 976 F.2d 754, 760 (1st Cir. 1992);6 and that Carcamo's
family has not suffered persecution since he left Guatemala, see
Romilus, 385 F.3d at 8; Aguilar-Solis, 168 F.3d at 573; Ravindran,
976 F.2d at 759-60.7 Rather, as we understand his argument,
Carcamo contends that the IJ's future-persecution finding is
tainted by two related errors of law: (1) an erroneous belief that
an individual who is brave enough to risk his life by returning to
his homeland in the face of prior persecution cannot establish a

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well-founded fear of future persecution; and (2) a failure to
recognize that the testimony of a "generally . . . credible
witness" (as the IJ found Carcamo to be) should be credited --
especially when it is corroborated. These errors, Carcamo states,
led the IJ to give conclusive weight to the evidence of his travel
while mayor and concomitantly to disregard Carcamo's testimony
about his fear of assassination were he to return to Guatemala.
We perceive no error of law. The IJ did not, as Carcamo
asserts, hold that "only cowards are worthy of asylum." Pet. Br.
at 33. As we read the record, the IJ merely considered Carcamo's
frequent departures from and returns to Guatemala as a factor in
his analysis, as he was permitted to do. See Albathani, 318 F.3d
at 373; Aguilar-Solis, 168 F.3d at 574 n.7. Moreover, the finding
that Carcamo was "generally . . . credible" does not seem to us to
be a finding that Carcamo was credible in all respects. The word
"generally" often connotes a significant limitation and, in light
of the IJ's other findings, should be so understood here. There is
nothing internally inconsistent in crediting Carcamo's testimony
about what happened when he was mayor and yet concluding, as the IJ
did, that these events did not ground a well-founded fear of future
persecution.
For the reasons stated, we deny Carcamo's petition for
review.
So ordered.

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