                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 04 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



ADRIAN HERNANDEZ-SANCHEZ,                        No. 07-73259

              Petitioner,                        Agency No. A70-919-484

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                                                           **
                            Submitted February 17, 2011
                               San Francisco, California

Before: SCHROEDER and THOMAS, Circuit Judges, and ADELMAN, District
Judge.***

       Petitioner Adrian Hernandez-Sanchez, a native and citizen of Guatemala,

petitions for review of an order of the Bureau of Immigration Appeals (BIA)



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Lynn S. Adelman, District Judge for the United States
District Court for the Eastern District of Wisconsin, sitting by designation.
reversing the decision of an immigration judge granting him humanitarian asylum

under 8 C.F.R. § 1208.13 (b)(1)(iii)(B). We affirm the BIA’s decision.

      Petitioner applied for asylum, withholding of removal and protection under

The Convention Against Torture, claiming past persecution by Guatemalan anti-

government guerrillas because of his ethnicity, religion and imputed political

opinion. The BIA found that there was no evidence that guerrillas persecuted him

on account of a statutorily protected ground or that he feared future persecution on

such a ground. The BIA also concluded that humanitarian asylum under 8 C.F.R. §

1208.13(b)(1)(iii)(B) is unavailable in the absence of past persecution based on a

protected ground.

      To establish eligibility for asylum, petitioner must demonstrate that he meets

the statutory definition of a “refugee.” 8 U.S.C. § 1158(b)(1)(B)(I); Barraza Rivera

v. INS, 913 F.2d 1443, 1449 (9th Cir.1990). A refugee is a person “unable or

unwilling to return to . . . [his] 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). An

applicant can demonstrate that he is a refugee by producing evidence of past

persecution or a well-founded fear of future persecution based on one of the

protected statutory grounds. Kazlauskas v. INS, 46 F.3d 902, 905 (9th Cir.1995).


                                          2
       Persecution based on resistance to forced conscription by a guerrilla

organization does not constitute persecution on a protected ground absent evidence

showing that the guerrilla’s actions were motivated by a protected ground.

Tecun-Florian v. INS, 207 F.3d 1107, 1109 (9th Cir. 2000) (citing INS v.

Elias-Zacarias, 502 U.S. 478, 483-84 (1992)). In the present case, the BIA’s

factual finding that petitioner was not persecuted based on a protected ground is

“supported by reasonable, substantial, and probative evidence on the record

considered as a whole” and thus must be upheld. The evidence does not compel

reversal. Elias-Zacarias, 502 U.S. 481 n.1. Substantial evidence supports the

BIA’s conclusion that petitioner failed to establish past persecution.

      Under 8 C.F.R. § 1208.13(b)(1)(iii)(B), a victim of past persecution on a

protected ground who no longer has a well-founded fear of future persecution may

be granted humanitarian asylum when there is a reasonable possibility that he will

suffer other serious harm upon removal. Belishta v. Ashcroft, 378 F.3d 1078, 1080

(9th Cir. 2004). However, humanitarian asylum is unavailable to an applicant,

such as petitioner, who has not been found to have been subjected to past

persecution based on a protected ground. Id.; Mohammed v. Gonzales, 400 F.3d

785, 801 (9th Cir. 2005). Thus, the BIA correctly determined that petitioner is

ineligible for humanitarian asylum.

      PETITION DENIED.

                                          3
