                                                                         F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                         MAY 26 2004
                                 TENTH CIRCUIT
                                                                     PATRICK FISHER
                                                                              Clerk

 SERGIO ALBERTO RANGEL
 QUINONEZ and ESTHER CRISTINA
 CAMACHO MIMENDY,                                       No. 03-9541
                                                    (Petition for Review)
               Petitioners,                       (Nos. A77-868-231/232)
          v.
 JOHN ASHCROFT,

               Respondent.


                              ORDER AND JUDGMENT        *




Before TACHA, Chief Judge, BRISCOE , and HARTZ , Circuit Judges.


      Petitioners Sergio Alberto Rangel Quinonez and Esther Cristina Camacho

Mimendy, appeal the March 6, 2003, decision by the Board of Immigration

Appeals (BIA), affirming the order of an immigration judge (IJ) ordering their

removal from the United States. We exercise jurisdiction under 8 U.S.C.


      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). 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not binding precedent, except under the doctrines of law of the case, res judicata,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.
§ 1252(a), see Tsevegmid v. Ashcroft, 336 F.3d 1231, 1235 (10th Cir. 2003), and

affirm.

I. BACKGROUND

      Petitioners are natives and citizens of Colombia who were admitted to the

United States as nonimmigrants on June 20, 1999. They were authorized to

remain in the country until September 19, 1999, but remained without

authorization beyond that date. At a hearing before the IJ on April 25, 2000,

Petitioners conceded removability, but applied for asylum and restriction on

removal under §§ 208 & 241(b)(3) of the Immigration and Nationality Act (INA),

and withholding of removal under the Convention against Torture. Ms. Camacho

Mimendy is married to Mr. Rangel Quinonez, and her claims are derivative of his.

      The IJ rejected Petitioners’ applications for asylum, restriction on removal,

and withholding of removal, and ordered their removal from the United States.

The BIA affirmed without opinion. On appeal Petitioners challenge the denial of

their claims for asylum and restriction on removal They do not contest the

rejection of their claim under the Convention against Torture.

      A. Applicable Law

      Asylum and restriction on removal are the two available means of relief

under the INA to an alien who fears persecution if returned from the

United States to a particular country. Wiransane v. Ashcroft, No. 02-9555, 2004


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U.S. App. LEXIS 8259 at *2 (10th Cir., Apr. 27, 2004). “A grant of asylum

permits the alien to remain in this country; a restriction on removal forbids

removal of the alien to the country where persecution may occur.” Id.

      In order to be eligible for asylum, an alien must first establish his status as

a refugee. 8 U.S.C. § 1158(b)(1). To do so, he must show that he “is unable or

unwilling to return to, and is unable or unwilling to avail himself . . . of the

protection of, [his 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). Aliens

who, like Petitioners, base their asylum claims upon a well-founded fear of future

persecution “must show both a genuine, subjective fear of persecution, and an

objective basis by credible, direct, and specific evidence in the record, of facts

that would support a reasonable fear [of] . . . persecution.” Wiransane, 2004 U.S.

App. LEXIS 8259 at *5 (internal quotation marks omitted).

      In order to obtain a restriction on removal, Mr. Rangel Quinonez must show

that his “life or freedom would be threatened in [Colombia] because of [his] race,

religion, nationality, membership in a particular social group, or political

opinion.” INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). “The Attorney General

may not remove an alien if the alien is able to establish a clear probability of

persecution in the country to which he would be returned.” Wiransane, 2004 U.S.


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App. LEXIS 8259 at *6 (internal quotation marks omitted). “The standard of

proof for restriction on removal is more demanding than the well-founded fear

standard applicable to an asylum claim. Thus, when an applicant fails to establish

the objective component of a well-founded fear of persecution, he necessarily

fails to establish entitlement to restriction on removal.” Id. at *6–*7 (internal

quotation marks and citations omitted).

      B. Facts and Proceedings Below

      Mr. Rangel Quinonez contends that he suffered political persecution giving

rise to a fear of future persecution in the course of events surrounding an

attempted abduction by unidentified anti-government guerillas on March 9, 1999.

At the time, he was a personnel manager at his father’s car dealership in

Bucaramanga, Colombia. He attributes the abduction attempt to his earlier refusal

to comply with a demand by a man who visited him at the dealership and

“identified himself as a member of a guerilla group.” R. at 110. The demand

was “to let one of their . . . people come in to work in the enterprise.” Id.

Mr. Rangel Quinonez testified that for about a week after the failed abduction he

hid at his father’s home in the hills above Bucaramanga, and then went with his

wife and daughter to Miami, Florida. He returned to Colombia a week and a half

later, thinking that he could live in the country if he had a security service.




                                          -4-
Threatening follow-up phone calls, however, convinced him otherwise, and he

returned to the United States on June 20, 1999.

      Although Mr. Rangel Quinonez testified that the first visitor identified

himself as a guerilla, he provided no evidence that the men involved in the

abduction attempt were guerillas—other than the assertion that in Colombia “the

common criminals [are] always asking to steal money or a car or something,”

whereas guerillas typically attempt abductions. Id. at 114. Further, the only link

Mr. Rangel Quinonez made between these two incidents and his political opinions

was the assertion that guerillas in Colombia “try to place people in a business to

convince the workers to come over to . . . the guerillas’ beliefs[,]” id. at 111–12,

and that when he refused the initial demand to hire an operative, he “told [the

guerillas] that [his] political views were not in accordance with their political

views.” Id. at 111. The IJ noted, however, that Mr. Rangel Quinonez “testified

that he has never belonged to a political party or donated any money to a political

organization,” and that “it does not appear that his father has been politically

active either.” Id. at 68.

      The IJ denied Petitioners’ asylum claim because he found that Mr. Rangel

Quinonez showed neither a subjective nor an objective fear of persecution in

Colombia on the basis of his political opinion. With respect to Mr. Rangel

Quinonez’s subjective fear, the IJ based his finding on Mr. Rangel-Quinonez’s


                                         -5-
return to Colombia only 10 days after his first entry into the United States, as well

as his testified-to knowledge that his parents and brothers were living safely in

Colombia.

      As for the objective element of the asylum claim, the IJ found that

Mr. Rangel Quinonez had not “establish[ed] the nexus between the harm which he

suffered and which he fears and any of the protected grounds.” Id. at 73–74.

First, the IJ found that Mr. Rangel Quinonez’s description of the visit by the

guerilla operative did not “show[] that [he] has been targeted for persecution”

because “[w]e do not know from [his] version of events who wanted him to hire

somebody or why they wanted [him] hired.” Id. at 74. The IJ also found that

Mr. Rangel Quinonez had failed to show that the attempted abduction was made

on account of his political beliefs, because he “did not have any expressed

political opinion” beyond his testimony in the hearing that he believed in

“liberty,” which amounted to a “political opinion . . . so vague that . . . [he] did

not have a meaningful political opinion which anyone would be interested in

changing.” Id. at 74–75. Finally, the IJ found that Mr. Rangel Quinonez’s

testimony as to the threatening phone calls after the attempted abduction was

“less than persuasive,” because, again, he did not identify the callers or provide

any details about the calls. Id. at 74.




                                           -6-
      With respect to Petitioners’ restriction-on-removal claim, the IJ said that

“[b]ecause [Mr. Rangel Quinonez] has failed to establish that he meets the

definition of refugee, he has failed to satisfy the higher burden of proof for

withholding of removal . . . .” Id. at 76.

      Petitioners challenge the IJ’s adverse asylum determination, contending that

he erred in finding no “nexus between the harm which [Mr. Rangel Quinonez]

suffered and which he fears and any of the protected grounds,” Aplt. Br. at 5,

because the IJ erroneously found that (1) Mr. Rangel Quinonez did not possess a

meaningful political opinion sufficient to attract political persecution; (2) his

kidnappers did not have a political motive in attempting to kidnap him; (3)

Mr. Rangel Quinonez failed to establish the identity of his would-be kidnappers

as guerillas; and (4) “security precautions are sufficient in Bucaramanga,

Colombia” to live free of harm . . . .” Id. They also assert that the IJ erred in

denying their restriction-on-removal claim.

II. DISCUSSION

      “Where . . . the BIA summarily affirms or adopts an immigration judge's

decision, this court reviews the judge's analysis as if it were the BIA’s.”

Tsevegmid, 336 F.3d at 1235. Our standard of review is highly deferential: “We

review the IJ’s resolution of the initial refugee status question under a substantial

evidence standard.” Yuk v. Ashcroft, 355 F.3d 1222, 1233 (10th Cir. 2004). This


                                             -7-
means that the IJ's adverse asylum decision “must be upheld if supported by

reasonable, substantial and probative evidence on the record as a whole.” Krastev

v. INS, 292 F.3d 1268, 1275 (10th Cir. 2002). We hold that the record supports

the IJ’s holding that Mr. Rangel Quinonez failed to make the requisite showings

to be eligible for asylum or restriction on removal under the INA.

      Guerilla targeting of an innocent civilian for non-political reasons does not

in itself amount to political persecution for the purposes of an asylum claim. See

INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992) (fact that “the guerillas seek to

fill their ranks in order to carry on their war against the government and pursue

their political goals . . . does not render . . . forced recruitment ‘persecution on

account of . . . political opinion.’” (internal citation omitted)); Ustyan v. Ashcroft,

No. 02-9596, U.S. App. LEXIS 6814, at *4 (10th Cir., April 8, 2004). Even

assuming that the men who visited, attempted to kidnap, and later called

Mr. Rangel Quinonez were guerillas, their use of force to place an operative in his

employ (or to kidnap him for ransom) does not amount to political persecution if

that attempt was made without regard to his political opinions. Although

Mr. Rangel Quinonez told the first alleged guerilla that he did not share the

guerillas’ views, this expression of opinion (probably held by most of his

compatriots) was not necessarily the reason for his persecution. Cf. Elias-

Zacarias, 502 U.S. at 483 (“[Petitioner] appears to argue that not taking sides


                                           -8-
with any political faction is itself the affirmative expression of a political opinion.

That seems to us not ordinarily so . . . .”). After all, Mr. Rangel Quinonez had

not distinguished himself from the general populace by participating in any

political activity. It was not unreasonable for the IJ to find that the guerillas’

interest in him was not his rather vague political views but something else, such

as his wealth or his position in the car dealership. Hence, we affirm the IJ’s

adverse asylum determination on the ground that Petitioners failed to show that

any persecution of Mr. Rangel Quinonez was based on his political opinions. It is

therefore irrelevant whether the IJ erred in finding that Mr. Rangel Quinonez had

failed to establish that his assailants were in fact anti-government guerillas.

Likewise, whether Mr. Rangel Quinonez could live safely in Colombia is

irrelevant.

      Because we affirm the IJ’s holding that Mr. Rangel Quinonez failed to

establish the objective component of a well-founded fear of persecution for the

purpose of his asylum claim, he necessarily failed to establish his (and his wife’s)

entitlement to restriction on removal. See Batalova v. Ashcroft, 355 F.3d 1246,

1255 (10th Cir. 2004); Yuk, 355 F.3d at 1236. Accordingly, we affirm the IJ’s

restriction-on-removal determination.




                                           -9-
III. CONCLUSION

    We AFFIRM the decision of the BIA.

                                ENTERED FOR THE COURT


                                Harris L Hartz
                                Circuit Judge




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