                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                             AUG 7 1997
                              FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    JOSE ROBERTO RAMIREZ,

                Petitioner,

    v.                                                   No. 96-9542
                                                     (Petition for Review)
    IMMIGRATION &                                     (No. A73 711 538)
    NATURALIZATION SERVICE,

                Respondent.




                              ORDER AND JUDGMENT *



Before KELLY and HENRY, Circuit Judges, and DOWNES, ** District Judge.


         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f) and 10th Cir. R. 34.1.9. The case is

therefore ordered submitted without oral argument.


*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
       Honorable William F. Downes, District Judge, United States District Court
for the District of Wyoming, sitting by designation.
      Petitioner seeks review of a final order of the INS denying his application

for asylum or withholding of deportation. 1 The Board of Immigration Appeals

(BIA) concluded he had not shown the requisite “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) (defining

“refugee” status), and denied relief accordingly, see Castaneda v. INS, 23 F.3d

1576, 1578 (10th Cir. 1994) (failure to satisfy definition of refugee precludes

asylum and, a fortiori, withholding of deportation). Specifically, the BIA upheld

the decision of the Immigration Judge (IJ), who had found petitioner’s evidence

insufficient to establish either past/feared persecution or a political basis for the

persecution alleged.

      Petitioner is a native Guatemalan who entered the United States without

inspection in October 1994. He promptly applied for political asylum, claiming


1
       The Illegal Immigration Reform and Immigrant Responsibility Act of 1996
(IIRIRA), Pub. L. No. 104-208, 110 Stat. 3009, alters the availability, scope, and
nature of judicial review in INS cases. However, because petitioner’s deportation
proceedings commenced before April 1, 1997, and the final decision of the INS
issued before October 31, 1996, neither IIRIRA’s permanent “new rules,” nor its
interim “transitional rules,” apply to this case. See id. §§ 306(c)(1), 309(a), (c)(1)
& (4), as amended Pub. L. No. 104-302, § 2, 110 Stat. 3657, set out in notes to 8
U.S.C. §§ 1101, 1252. In contrast, provisions of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, may
apply to INS cases commenced, like this one, before AEDPA’s enactment on
April 24, 1996, see Fernandez v. INS, 113 F.3d 1151 (10th Cir. 1997), though
none of these appear pertinent to this petition for review, which does not involve
deportation for criminal activity addressed by AEDPA.

                                          -2-
his departure from Guatemala was prompted by death threats from two guerrilla

groups, which had canvassed his community with intimidating flyers, letters, and

door-to-door demands, seeking material assistance and young male recruits. The

extent to which threats were directed personally toward petitioner is somewhat

unclear in light of certain discrepancies and ambiguities in the record. Although

not a member of any opposing political or military group, petitioner eventually

deemed it necessary to flee the country to avoid the guerrilla groups’ coercive

solicitations.

      As we agree with the IJ that petitioner failed to show he was threatened

because of his political opinions, we need not resolve the matter of persecution

per se. Indeed, there is some question whether petitioner even preserved the fully

dispositive political-nexus issue by challenging this alternative rationale for the

IJ’s decision in his appeal to the BIA. See Rivera-Zurita v. INS, 946 F.2d 118,

120 n.2 (10th Cir. 1991). The record has only petitioner’s administrative notice

of appeal, and the relevant objections raised in this brief document, that the IJ

“abused his discretion in denying asylum,” “did not fully consider death threats

and past persecution of [petitioner] by rebel armed forces,” and “placed too much

emphasis on minor inconsistencies in testimony,” AR at 17, do not appear to

engage the issue.




                                          -3-
      In any event, the Supreme Court has made it clear that harassment by

guerrilla forces seeking to coerce enlistment does not establish persecution for

political opinion. See INS v. Elias-Zacarias, 502 U.S. 478, 481-84 (1992).

Petitioner contends that his refusal to join the guerrillas nevertheless reflected a

political act--the deliberate decision to remain neutral--thereby politicizing any

adverse consequences imposed by the guerrillas. A similar argument was

specifically addressed and rejected in Elias-Zacarias:

      [Petitioner] appears to argue that not taking sides with any political
      faction is itself the affirmative expression of a political opinion.
      That seems to us not ordinarily so, . . . [as such a view would fail to]
      distinguish [political opinion] from such quite different concepts as
      indifference, indecisiveness, and risk averseness. But we need not
      decide whether the evidence compels the conclusion that [petitioner]
      held a political opinion. Even if it does, [petitioner] still has to
      establish that . . . the guerrillas will persecute him because of that
      political opinion, rather than because of his refusal to fight with
      them.

502 U.S. at 483. Even if we assume petitioner’s neutral stance was indeed

ideological, he has not shown that the rebels persecuted or would persecute him

for this stance rather than simply for his refusal to join them, particularly as his

own testimony indicates he never voiced any political opposition expressly to the

guerrillas. Compare Sotelo-Aquije v. Slattery, 17 F.3d 33, 36-37 (2d Cir. 1994)

(finding political persecution because guerrilla organization threatened petitioner

on account of his active, public opposition), with Bartesaghi-Lay v. INS, 9 F.3d

819, 822 (10th Cir. 1993) (holding government sympathizer did not establish

                                          -4-
political persecution by rebel group because threat “was prompted by the fact that

he declined to become involved . . ., and not because of his political opinions”).

      “To reverse the BIA finding [that petitioner is not a refugee] we must find

that the evidence not only supports [the contrary] conclusion, but compels it.”

Elias-Zacarias, 502 U.S. at 481 n.1. For the reasons discussed above, reversal is

clearly inappropriate here.

      The petition for review is DENIED.




                                                    Entered for the Court



                                                    William F. Downes
                                                    District Judge




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