          United States Court of Appeals
                      For the First Circuit

No. 11-2253

                        MARIA GUAMAN-LOJA,

                           Petitioner,

                                v.

              ERIC H. HOLDER, JR., ATTORNEY GENERAL,

                           Respondent.



              PETITION FOR REVIEW OF AN ORDER OF THE
                   BOARD OF IMMIGRATION APPEALS



                              Before

                       Lynch, Chief Judge,
                Boudin* and Lipez, Circuit Judges.



     Brian Monahan and Ross & Associates on brief for petitioner.
     Tony West, Assistant Attorney General, Civil Division, Anthony
C. Payne and Tiffany L. Walters, Office of Immigration Litigation,
on brief for respondent.



                         February 7, 2013




     *
       Judge Boudin participated in the semble in this matter, but
he did not participate in the issuance of the panel's opinion. The
remaining two panelists therefore issued the opinion pursuant to 28
U.S.C. § 46(d).
           LIPEZ, Circuit Judge.          Maria Guaman-Loja, a native and

citizen   of    Ecuador,   entered    the   United   States       without   being

admitted or paroled.       She was placed into removal proceedings and

filed applications for asylum, withholding of removal, and relief

under the Convention Against Torture ("CAT"). An immigration judge

("IJ") denied Guaman-Loja's applications for relief, and the Board

of Immigration Appeals ("BIA") subsequently dismissed her appeal.

Guaman-Loja now petitions for review of the BIA's order. Under the

deferential     standard    of   review     we   accord      to    the    agency's

factfinding, we deny the petition.

                                      I.

           We    briefly   recount    the   facts    found    by    the    agency.

Guaman-Loja is an Ecuadorian woman of indigenous descent whose

primary language is Quechua.         After completing her education, she

became active in the organization of fellow indigenous people in

her local community during the 1980s.                These activities were

primarily literacy-related and she spent much of her time teaching

fellow indigenous people how to read and write.

           Due to Guaman-Loja's activities, she and her family

received a number of threats from individuals of Mestizo ancestry.1

On one occasion, one of these individuals slapped Guaman-Loja in

the face and warned her that she should cease her community and


     1
       Although the term "Mestizo" carries multiple definitions,
Guaman-Loja used the word to refer to individuals with Spanish
ancestry.

                                      -2-
educational activities.2       Guaman-Loja testified that her family

members were assaulted and also threatened.

            Guaman-Loja and her husband attempted to relocate within

Ecuador on several occasions to escape further threats.                     Her

alleged persecutors continued to seek her out and threaten her.

Fearing for her continued safety, she entered the United States

without inspection on or about April 10, 2003.

            When she was later placed into removal proceedings, she

applied for asylum, withholding of removal, and relief under CAT in

May 2006.    The IJ held a hearing on the matter, where Guaman-Loja

was the only witness.     At the hearing's end the IJ issued an oral

decision    denying   Guaman-Loja's     application     for   asylum   on   two

grounds.    First, the IJ held that her application had not been

filed within one year of her entry into the United States, as

required by statute, and that she had not demonstrated changed

circumstances justifying waiver of that requirement.             Second, the

IJ denied her application on the merits.           The IJ ruled that the

harms Guaman-Loja had suffered in Ecuador were not drastic enough

to rise to the level of persecution, and that she had failed to

demonstrate    a   fear   of   future     persecution    if   she   returned.

Additionally, nothing in the record indicated that the harassment


     2
       Although the IJ's decision discusses only one incident when
Guaman-Loja was physically struck, Guaman-Loja avers in an
affidavit that the same woman struck her while she was visiting her
family in 2002, a number of years after the incident mentioned in
the IJ's decision.

                                    -3-
she experienced had come about as a result of government action or

inaction.

            Guaman-Loja appealed to the BIA, which upheld the IJ's

decision.     As to the timely filing of her application, the BIA

ruled that Guaman-Loja had "not shown extraordinary circumstances

for the delay" in seeking asylum, a showing that could have avoided

application of the one-year bar.          As for the merits of Guaman-

Loja's claim, the BIA stated that she had not demonstrated that she

had suffered persecution, or that mistreatment of indigenous people

in Ecuador "is so systemic or pervasive as to amount to a pattern

or   practice   of   persecution"   on    the   part   of   the   Ecuadorian

government.     This timely appeal followed.

                                    II.

            We review on appeal "the BIA's decision as well as any

portions of the IJ's opinion adopted by the BIA."           Peña-Beltre v.

Holder, 622 F.3d 57, 61 (1st Cir. 2010).           We examine the BIA's

legal conclusions de novo and its factual findings under the

substantial evidence standard, Soeung v. Holder, 677 F.3d 484, 487

(1st Cir. 2012), accepting the agency's factfinding unless the

evidence "would compel a reasonable factfinder to reach a contrary

conclusion."     Seng v. Holder, 584 F.3d 13, 17 (1st Cir. 2009).




                                    -4-
A.   Guaman-Loja's Claims of Persecution

            Guaman-Loja contends that the agency erred in concluding

that she was ineligible for asylum.3      A noncitizen seeking asylum

"must establish his or her status as a refugee."      Soeung, 677 F.3d

at 487.   A refugee is defined as a noncitizen who is unwilling or

unable to return to her country of origin "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   showing   of    past

persecution gives rise to a rebuttable presumption of future

persecution."     Vanchurina v. Holder, 619 F.3d 95, 99 (1st Cir.

2010).    Absent evidence of past persecution, a petitioner must

provide "specific proof" that his or her fear of future persecution

"is both subjectively genuine and objectively reasonable."           Decky

v. Holder, 587 F.3d 104, 110 (1st Cir. 2009) (quoting Castillo-Diaz

v. Holder, 562 F.3d 23, 26 (1st Cir. 2009)) (internal quotation

marks omitted).


     3
       Guaman-Loja challenges the threshold determination that her
asylum application was untimely filed, citing the BIA's apparent
application of the "extraordinary circumstances" exception to the
one-year bar. See 8 C.F.R. § 1208.4(a)(5). The agency may have
mistakenly addressed a claim that Guaman-Loja did not actually
make; she in fact attempted to invoke the "changed circumstances"
exception, which requires a different showing.          See id. §
1208.4(a)(4). Because the agency denied her asylum claim on the
merits, however, we need not address the significance of this
possible error. See Beltrand-Alas v. Holder, 689 F.3d 90, 94 (1st
Cir. 2012) (upholding BIA's decision on one independent ground and
declining to address alternative ground of agency decision); Matos-
Santana v. Holder, 660 F.3d 91, 94 n.2 (1st Cir. 2011) (same).

                                    -5-
              We have stated that a noncitizen must have experienced

something      more    than    "ordinary     harassment,   mistreatment,    or

suffering" to demonstrate persecution.               Lopez de Hincapie v.

Gonzales, 494 F.3d 213, 217 (1st Cir. 2007).                  "The severity,

duration, and frequency of physical abuse are factors relevant to

this determination, as is whether harm is systematic rather than

reflective of a series of isolated incidents."             Barsoum v. Holder,

617 F.3d 73, 79 (1st Cir. 2010) (citations omitted) (internal

quotation marks omitted).

              Guaman-Loja bases her asylum claim on her activities on

behalf of the indigenous community of Ecuador. The agency examined

Guaman-Loja's evidence regarding the threats she had received from

individuals who wanted her to cease her educational activities, as

well as the physical assaults she had experienced.4             This evidence

does       indicate   that    she   personally    experienced   threats    and

harassment on multiple occasions. However, the record supports the

conclusion that these incidents, while no doubt burdensome and

troubling,        were not severe or frequent enough to amount to



       4
       Although the IJ is typically required to determine whether
an asylum applicant's testimony is credible, "[t]he lack of a
credibility determination is a cause for concern only when a claim
turns on the veracity of the alien."   Morgan v. Holder, 634 F.3d
53, 57 (1st Cir. 2011). Here, the IJ appears to have accepted all
of Guaman-Loja's testimony, but concluded that it was insufficient
to establish her status as a refugee.            "[A] credibility
determination is superfluous when the alien's testimony, even if
taken at face value, is insufficient to compel an entitlement to
relief." Id.

                                       -6-
persecution.      The record also includes evidence regarding assaults

on some of her family members, but it appears that the last of

these attacks occurred in 1991, about twelve years before she came

to the United States.            Even assuming that these attacks were

connected   to    her   family    members'    political   affiliations,    the

ability of petitioner and her family members to avoid harassment

for such a lengthy period of time undermines any inference of

persecution.      We therefore agree that "[t]he BIA was not compelled

to find that the harms [the petitioner] suffered, even viewed

collectively, rose to the level of persecution." Barsoum, 617 F.3d

at 80.

            Guaman-Loja asserts that the agency made an error of law

when it excluded evidence of psychological and emotional harm from

its calculus.      See Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir.

2004)    ("[W]e     acknowledge     that,     under    the   right   set    of

circumstances, a finding of past persecution might rest on a

showing of psychological harm.").           Nothing in the agency's opinion

supports the contention that it did so, however.             In fact, the BIA

explicitly addressed the threats made to Guaman-Loja and her family

members, concluding that they did not "amount to persecution."

Although the BIA's opinion was relatively brief, "we will not

require that it address specifically each claim the petitioner made

or each piece of evidence the petitioner presented."             Martinez v.

INS, 970 F.2d 973, 976 (1st Cir. 1992).               Without any indication


                                      -7-
that the agency erroneously refused to consider certain aspects of

her testimony, Guaman-Loja's argument reduces to a dispute with the

agency's factfinding.       As we have explained, we see no issue with

the agency's view of the facts.

            Without evidence of past persecution, Guaman-Loja is not

entitled to a presumption that she will face future persecution.

Anacassus v. Holder, 602 F.3d 14, 21 (1st Cir. 2010).                       Guaman-

Loja's     evidence    of   likely   future       persecution       is    similarly

insufficient.      She cites her brother, who purportedly left Ecuador

and came to the United States due to discrimination he had suffered

because of his indigenous background.               This brother subsequently

returned    to   Ecuador,   where    he    died    in   a   car   accident     under

mysterious circumstances in October 2008.                   Although Guaman-Loja

seeks to link his death to his political activity on behalf of

indigenous individuals, this theory of his death relies entirely on

speculation      and   inferences.        "Merely    identifying         alternative

findings    that   could    be   supported    by    substantial         evidence   is

insufficient to supplant the [IJ's] findings."                 Albathani v. INS,

318 F.3d 365, 372 (1st Cir. 2003).                Accordingly, we discern no

error in the agency's conclusion as to future persecution as well.

B.   State Involvement in Guaman-Loja's Persecution

            Although our analysis could end here, the BIA stated

another     independent     reason    why    Guaman-Loja          had    failed    to

demonstrate her status as a refugee.              Even assuming that she had


                                      -8-
suffered harms amounting to persecution, she adduced no evidence

connecting the harassment she had experienced with government

action or inaction.     In order to qualify as a refugee, Guaman-Loja

must have suffered "persecution that is the direct result of

government action, government-supported action, or government[]

unwillingness or inability to control private conduct."    Nikijuluw

v. Gonzales, 427 F.3d 115, 121 (1st Cir. 2005); see also Barsoum,

617 F.3d at 79 ("The state must also be implicated, whether by

participation      or   acquiescence,   for   harm   to   amount   to

persecution.").    Although a state may sanction persecution through

inaction, the petitioner must demonstrate that "the government . .

. would have been unwilling or unable to pursue these lines of

redress on [the petitioner's] behalf."    Castillo-Diaz, 562 F.3d at

28.

          Once again we locate no error in the agency's factfinding

on this subject.    The individuals who allegedly persecuted Guaman-

Loja were without an apparent connection to the government, and

Guaman-Loja never sought aid or protection from the police or local

authorities.    See id. at 27-28; see also Galicia v. Ashcroft, 396

F.3d 446, 448 (1st Cir. 2005) (affirming finding that petitioner

"did not show that the harassment he suffered was by the government

or a group the government could not control" where petitioner did

not inform authorities of his attack).




                                  -9-
           Although Guaman-Loja testified in conclusory fashion that

she believed the police would not protect her unless she bribed

them, she did not elaborate on this statement or explain it in any

detail.   Instead, she relies on a U.S. State Department country

conditions report indicating that indigenous people in Ecuador face

discrimination and that political violence of various kinds is a

consistent problem.   The BIA considered this report, but concluded

that it did not demonstrate that this discrimination rose to the

level of systemic persecution.    The BIA also noted that the report

failed to show that the "government is unable or unwilling to

control" the conduct of private actors.    Our review of the report

reveals a sound basis for these findings, as the discrimination

against indigenous individuals in Ecuador is offset at least in

part by the community's growing political strength and various

reforms designed to make the nation's society more open to people

of indigenous descent.    Consequently, the agency did not err in

concluding that she had failed to establish her eligibility for

asylum.

C.   Guaman-Loja's Remaining Claims

           Because Guaman-Loja has failed to demonstrate that she is

eligible for asylum, her claims for withholding of removal and

relief under CAT also fail.    See Singh v. Mukasey, 543 F.3d 1, 7

(1st Cir. 2008) (observing that claims for withholding and CAT

protection "place a higher burden of proof on the petitioner than


                                 -10-
a counterpart claim for asylum" and stating that petitioner's

failure to establish eligibility for asylum similarly doomed those

claims); Barsoum, 617 F.3d at 80-81 (same).

           For the reasons stated, the petition is denied.     So

ordered.




                              -11-
