               Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit
 
 

No. 15-2018

                       JOSE AMADO RODRIGUEZ,

                              Petitioner,

                                    v.

              LORETTA E. LYNCH, ATTORNEY GENERAL,

                              Respondent.
 

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

 

                                 Before

                      Howard, Chief Judge,
              Torruella and Stahl, Circuit Judges.
                                       

     Kevin MacMurray and MacMurray & Associates for petitioner.
     Thankful T. Vanderstar, Attorney, Office of Immigration
Litigation, U.S. Department of Justice, Benjamin C. Mizer,
Principal Deputy, Assistant Attorney General, and Linda S.
Wernery, Assistant Director, for respondent.

                                       

                             July 15, 2016
                                       
             STAHL, Circuit Judge.          The petitioner in this case is

a Salvadoran citizen seeking asylum and withholding of removal

based   on   his   alleged      past   persecution     and    fear   of    future

persecution.       The immigration judge and Board of Immigration

Appeals denied his application and ordered him removed to El

Salvador.      Because     the     record    does   not   compel     a   contrary

conclusion, we deny the petition for review.

                           I.    Facts & Background

             On February 20, 2010, Jose Amado Rodriguez entered the

United States without a valid entry document.                   A native and

citizen of El Salvador, Rodriguez was charged by the Department

of Homeland Security with being a removable alien, which he

conceded.     Rodriguez applied for asylum, withholding of removal,

and protection under the Convention Against Torture ("CAT").

             Appearing     before      an      immigration     judge      ("IJ"),

Rodriguez testified that he first came to the United States in

2001 and had Temporary Protected Status until 2007, when he

returned to El Salvador to take care of his ill mother.                   Back in

El Salvador, he joined the National Republican Alliance Party

("ARENA") and worked as a driver and counselor.                 In this role,

Rodriguez    claims   to    have    had     two   troubling   encounters     with




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members      of    an     opposing    party,     the      Farabundo   Martí      National

Liberation Front ("FMLN").

              As to the first encounter, Rodriguez testified that he

was    driving      some     people    to    a   meeting      when    seven    or     eight

individuals wearing FMLN hats and t-shirts blocked his truck

with their truck and "start[ed] throwing stones at [him] and

threatening [him]."            The FMLN members did not get out of their

truck, but allegedly said if they saw him again they would push

his truck "down one of the mountains" with him in it.                          According

to Rodriguez, the stones thrown by the FMLN members hit his

truck, but none of its occupants.

              In the second encounter, eight to ten months later,

Rodriguez said that his truck was vandalized while it was parked

in front of city hall and that the "30 to 40" people who did so

said, "if we see you again, next time you [will] pay with your

life."    Rodriguez said he knew it was the FMLN because they left

an FMLN flag.

                  After    Rodriguez    reported          these    incidents     to     the

mayor, who was a member of the ARENA party, the mayor allegedly

told Rodriguez that "it [would be] better if [Rodriguez] didn't

do a thing . . . [and] went to another country, because [his]

life   was    in     danger."        Rodriguez      did    not    notify   the   police,

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testifying that he did not think they would help him because

they are "very corrupt[]."                 Rodriguez left El Salvador about

three days later.         He testified that he believed that his life

would be in danger if he returned home.

             On December 4, 2013, the IJ issued an oral decision

finding Rodriguez removable as charged; denying his request for

asylum under section 208 of the Immigration and Nationality Act

("the    Act"),    8   U.S.C.    §    1158,    withholding       of   removal   under

section    241(b)(3)      of    the    Act,    8   U.S.C.    §    1231(b)(3),        and

protection under the CAT, 8 C.F.R. § 1208.16; and ordering him

removed to El Salvador.             Rodriguez appealed the decision to the

Board of Immigration Appeals ("the Board"), which agreed with

the IJ's determinations and dismissed the appeal.                      This petition

for review followed.

                                    II.    Analysis

             To qualify for asylum, an alien must establish that he

is   a   "refugee."       See   8     U.S.C.   §   1158(b)(1);        Guaman-Loja    v.

Holder, 707 F.3d 119, 122 (1st Cir. 2013).                   A "refugee" is an

alien who is unwilling or unable to return to his home 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.

                                           - 4 -
§ 1101(a)(42)(A).                                         Thus, the alien bears the burden of proving

past persecution or a well-founded fear of future persecution.

See 8 C.F.R. § 1208.13(a).1

                             Where the Board agrees with the IJ's decision while

adding its own reasons, we review both decisions.                                                       Sunarto Ang

v. Holder, 723 F.3d 6, 10 (1st Cir. 2013).                                                      This Court reviews

the           IJ's             findings                    of    fact   for    substantial      evidence     and    may

reverse such findings "only if 'the evidence is such as would

compel a reasonable factfinder to reach a contrary conclusion.'"

McKenzie-Francisco v. Holder, 662 F.3d 584, 586 (1st Cir. 2011)

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

                                                                A.   Past Persecution

                             Rodriguez first contends that the record compels the

conclusion                         that              he        suffered   harm        rising    to    the   level   of

persecution                          that              the       government     was    unable    or    unwilling     to

control.                     This contention fails twice over.

                             First, past persecution must exceed "unpleasantness,

harassment, and even basic suffering."                                                  Sinurat v. Mukasey, 537

F.3d 59, 61 (1st Cir. 2008).                                                  To constitute persecution, the

harm experienced "must have reached a fairly high threshold of
                                                            
              1
        Proving past persecution gives rise to a rebuttable
presumption of future persecution. Guaman-Loja, 707 F.3d at 122.


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seriousness, as well as some regularity and frequency."                             Alibeaj

v. Gonzales, 469 F.3d 188, 191 (1st Cir. 2006).

              Rodriguez     experienced         two    incidents,      almost       a    year

apart, falling far short of the severe, systematic type of harm

that   this      Court    has    found     to    constitute      persecution.             See

Anacassus v. Holder, 602 F.3d 14, 19-20 (1st Cir. 2010).                                While

the alleged threats made on those two occasions are "indubitably

unsettling, credible verbal death threats may fall within the

meaning of persecution[] . . . only when the threats are so

menacing    as    to     cause   significant          actual    suffering      or    harm."

Lobo   v.   Holder,       684    F.3d    11,     18   (1st     Cir.   2012)    (internal

quotation      marks      omitted).         Rodriguez        offered    no     testimony

regarding the immediate impact, if any, that these threats had

on him and provided little indication that those who made the

threats had any intention or capability of carrying them out.

              Second,      petitioners          must     demonstrate          that       past

persecution       is     "the     direct        result    of     government         action,

government-supported action, or government . . . unwillingness

or inability to control private conduct."                      Guaman-Loja, 707 F.3d

at 123.       A petitioner's mere speculation that the police will

not provide protection if contacted is not sufficient.                              Sunarto

Ang, 723 F.3d at 11.

                                          - 6 -
                             Here, Rodriguez did not notify the police about his

encounters with the FMLN, stating that he did not believe that

they              would              help             him.             And   while   Rodriguez     relies   upon    the

mayor's alleged advice,2 his brief testimony on this issue does

not compel the conclusion that the government of El Salvador

would have been unable or unwilling to protect him.

                                                               B.     Future Persecution

                             Rodriguez                         also    argues    that    the   record   reflects    his

well-founded fear of future persecution.                                                       To make this showing

independent of past persecution, he must prove that his fear is

subjectively                             genuine                 and    objectively       reasonable.       Silva   v.

Ashcroft, 394 F.3d 1, 4 (1st Cir. 2005).

                             The           IJ         held          that     Rodriguez   had    not   established    an

objectively reasonable fear of future persecution,3 basing her

findings on a 2012 Department of State Country Report, which
                                                            
              2
       Rodriguez submitted a letter from the mayor to support his
claim, but this letter curiously makes no mention of the alleged
problems that Rodriguez experienced with the FMLN. Although the
IJ "ha[d] some concerns regarding [Rodriguez's] credibility,"
she "assume[d] for the sake of th[e] decision that [he] was a
credible witness," and so do we.
              3
       When Rodriguez was interviewed shortly after entry, he
stated that he had no fear of returning to El Salvador and had
come to the United States to work and live in Texas.
Nonetheless, the IJ and the Board accepted Rodriguez's claim of
subjective fear, and, again, so do we.


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stated    that     "independent       observer      groups   reported      [that]       the

elections [in March 2009 and March 2012] were free and clear

with     few     irregularities       .    .   .    [and   that]    there    were        no

politically motivated killings or disappearances."

                Rather    than   grounding         his   response     in   the    record

below, however, Rodriguez attempts to rely on evidence that was

not before the IJ or the Board.                We are limited in our review to

the record upon which the appealed order of removal was based.

See 8 U.S.C. § 1252(b)(4)(A); Shah v. Holder, 758 F.3d 32, 37

(1st     Cir.    2014).       Thus,       substantial      evidence    supports         the

agency's decision, and the record does not compel the conclusion

that   Rodriguez         established      an   objectively    reasonable         fear   of

future persecution in El Salvador.

                                 III.      Conclusion

                Because Rodriguez failed to prove his eligibility for

asylum, he also failed to meet the higher burden required to

establish eligibility for withholding of removal. See Guaman-

Loja, 707 F.3d at 124.           In addition, Rodriguez makes no argument

on appeal regarding his claim for CAT protection, and therefore

that issue is waived.             See Vasili v. Holder, 732 F.3d 83, 92

(1st Cir. 2013).           For these reasons, the petition for review is

DENIED.

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