                                                                              United States Court of Appeals
                                                                                       Fifth Circuit
                                                                                     F I L E D
                                                                                     October 30, 2003
                           UNITED STATES COURT OF APPEALS
                                                                                 Charles R. Fulbruge III
                                FOR THE FIFTH CIRCUIT                                    Clerk
                                    _________________________

                                          No. 02 – 60506
                                      SUMMARY CALENDAR
                                    _________________________

JOSE ALEJANDRO ORDONEZ TUMAX

                       Petitioner

   v.

JOHN ASHCROFT, U.S. ATTORNEY GENERAL

                       Respondent

______________________________________________________________________________

                        Petition for Review of an Order of the
                            Board of Immigration Appeals
                                BIA No. A70-687-319
______________________________________________________________________________

Before REYNALDO G. GARZA, DAVIS, and BARKSDALE, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:1

        In this appeal we review the Board of Immigration Appeals’ (hereinafter, “BIA”) decision

denying Petitioner, Jose Alejandro Ordonez Tumax (hereinafter, “Tumax”), asylum and

withholding of removal. For the following reasons, we affirm the BIA’s decision and deny the

petition for review.


        1
        Pursuant to 5th Cir. R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R.
47.5.4.

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                                                 I.

                       FACTUAL AND PROCEDURAL BACKGROUND

       Tumax is a native of Guatemala who entered the United States in September 1990. In

1997, the Immigration and Naturalization Service charged Tumax with being present in the

United States without having been admitted or paroled after inspection. Tumax conceded that he

was subject to removal, but applied for relief in the form of political asylum, withholding of

removal, and voluntary departure.

       At his hearing before the immigration judge, Tumax testified that he left Guatemala

because local guerilla soldiers were pressuring him to join their group, and that when Tumax

refused to join, he was followed and threatened. Tumax tried to avoid the guerillas by moving to

his uncle’s house in another city, but the guerillas found him and again threatened him with his life

if he refused to join their group. Tumax was never physically harmed though.

       Believing that the guerillas intended to harm him, Tumax decided to leave Guatemala for

the United States. He traveled through Mexico, but did not seek asylum in that country. Tumax

reached the United States and began working to support himself. He testified that he did not

apply for political asylum in the United States when he arrived because he did not feel it was

important.

       The immigration judge determined that Tumax had not proved past persecution and that

he did not have a reasonable fear of future persecution. Thus, the judge ruled that Tumax had not

established grounds for granting asylum, and Tumax had not met the higher burden required to

establish eligibility for withholding removal. The immigration judge did grant Tumax’s request

for voluntary departure. Tumax appealed the immigration judge’s decision to the BIA. The BIA


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upheld the judge’s decision, citing a change in the political climate of Guatemala. The BIA found

no evidence that Tumax would be threatened by the guerillas in the future. The BIA dismissed

Tumax’s appeal and gave Tumax thirty days to leave the United States. This appeal timely

followed.

                                                 II.

                                    STANDARD OF REVIEW

       We review the BIA’s legal conclusions de novo and their findings of fact are reviewed for

substantial evidence. Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001). The findings

of fact are accepted unless the evidence is so compelling that no reasonable fact finder could fail

to find otherwise. Id. While this court normally reviews only the BIA’s decision, we also consider

the immigration judge’s decision to the extent that it influenced the BIA. Mikhael v. I.N.S., 115

F.3d 299, 302 (5th Cir. 1997).

                                                III.

                       ASYLUM AND WITHHOLDING OF REMOVAL

       Refugees are granted asylum if they can establish past persecution or a reasonable fear of

future persecution based upon race, religion, nationality, membership in a particular social group,

or political opinion. Lopez-Gomez, 263 F.3d at 444-45. While Tumax concedes that he did not

suffer past persecution, he contends that the BIA erred in finding that he had no reasonable fear of

future persecution. To establish a reasonable fear of persecution, Tumax had to show that a

reasonable person in the same circumstances would fear persecution if removed to his country of

origin. Mikhael, 115 F.3d at 304.

       The immigration judge found that the government of Guatemala has entered into a peace


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accord with the local guerillas. The guerilla movement has disbanded and thus, there is no

reasonable possibility that Tumax would be pressured into joining the group. The BIA’s

determination that Tumax did not face a reasonable fear of future persecution is supported by

substantial evidence.

          Tumax also argues that the immigration judge erred by failing to address Tumax’s

membership in an ethnic group of Guatemalan Indians who face persecution by the army. Tumax

contends that this error was a result of the court translator replacing the word “indigenous” with

the word “indigents.” However, this error is immaterial because Tumax has not claimed that he

was threatened by the army or that the guerillas harassed him because of his ethnicity.

          Finally, Tumax argues that there is substantial evidence supporting his request for

withholding of removal. However, the standard for withholding of removal is more stringent than

the standard for granting asylum. Mikhael, 115 F.3d at 306. Tumax must show that a clear

probability exists that he will be persecuted if he is removed. Id. Tumax failed to make the

required showing for asylum, thus he is not eligible for withholding of removal. Id.

                                                   IV.

                                            CONCLUSION

          For the foregoing reasons, we affirm the BIA’s decision and deny Tumax’s petition for

review.




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