          United States Court of Appeals
                      For the First Circuit

No. 10-2286

           JULIO FAUSTINO GUERRERO; ANA VILMA ACEVEDO;
                     JORGE GUERRERO-ACEVEDO,

                           Petitioners,

                                v.

              ERIC H. HOLDER, JR., Attorney General,

                           Respondent.


               PETITION FOR REVIEW OF A FINAL ORDER
                OF THE BOARD OF IMMIGRATION APPEALS


                              Before

                   Torruella, Lipez and Howard,
                          Circuit Judges.


     Julio A. Vázquez and Vázquez and Shin, LLP, on brief for
petitioners.
     Tony West, Assistant Attorney General, Civil Division, Melissa
Neiman-Kelting, Senior Litigation Counsel, Office of Immigration
Litigation and Anthony J. Messuri, Trial Attorney, on brief for
respondent.



                         January 31, 2012
               HOWARD,        Circuit   Judge.          Petitioner     Julio     Faustino

Guerrero is a Salvadoran national.                    He seeks review of an order of

the Board of Immigration Appeals ("BIA") approving the denial of

his applications for asylum and withholding of removal. Discerning

no error, we deny the petition.

               Guerrero entered the United States in February 1992

without being admitted or paroled.                     Later that year, he filed an

affirmative          asylum     application,          asserting     that    he   had   been

persecuted and had a well-founded fear of future persecution on

account of his political beliefs.                     Following a long, unexplained

hiatus, federal authorities initiated removal proceedings against

him in March 2007.            Guerrero conceded removability but renewed his

request for asylum and withholding of removal.1

               The gravamen of the petitioner's claim for relief is

mistreatment suffered at the hands of the Farabundo Martí National

Liberation Front ("FMLN") guerillas, who occupied a base in his

home       village     throughout       much     of    the   more    than    decade-long

Salvadoran civil war. On approximately three occasions during that




       1
        The government simultaneously sought removal of the
petitioner's spouse Ana Vilma Acevedo, and his son Jorge
Guerrero-Acevedo, who entered the United States illegally in 2002
and 2006, respectively.      Both wife and child are named as
derivative beneficiaries on the petitioner's application. Because
their rights are dependent on those of the petitioner, we discuss
the case as if it involved Guerrero alone. Our decision applies,
of course, to all parties.

                                               -2-
period,2 guerilla members forced him at gunpoint to carry wounded

guerillas to safety; on one of those occasions, the injuries of the

wounded guerilla were such that his intestines hung over Guerrero's

shoulder. The guerillas also thrice conscripted Guerrero to assist

in barricading roads and detonating bombs to ambush government

troops, and occasionally forced him to work in the fields as a

decoy.   Additional assistance was often demanded in the form of

food, and Guerrero and his family were forced to go hungry in order

to comply.    The guerillas also rounded up Guerrero and the other

villagers at gunpoint and obliged them to attend FMLN political

rallies on roughly ten occasions.

          Guerrero opposed the guerillas, who he believed would

"turn El Salvador into another Cuba."         Although he never openly

resisted the guerillas for fear of harm, he asserted that it was

well known in his village of only approximately three thousand

inhabitants who supported the guerillas and who did not.

          After    reviewing     the     petitioner's     testimony       and

documentary   evidence,   the   immigration   judge     ("IJ")   found    the

petitioner    credible    but   concluded   that   he    had     failed    to

substantiate a cognizable claim of past or future persecution.

Although the IJ accepted Guerrero's testimony that his political

     2
       There exist minor discrepancies between the petitioner's
asylum application and hearing testimony regarding the exact dates
and the number of occasions on which these and the other incidents
described herein occurred. In light of the immigration judge's
favorable credibility determination, however, these discrepancies
are immaterial to our analysis.

                                   -3-
opinion   was   either    known    or   presumed   by   the   guerillas,     she

determined that Guerrero had failed to demonstrate a nexus between

that opinion and the mistreatment that he suffered. The IJ further

found that while the events described were "positively frightening

and at times utterly gruesome," they were not sufficiently severe

to rise to the level of persecution.            Finally, the IJ concluded

that Guerrero's fear of future persecution, though genuine, was not

objectively reasonable in light of the peace accords signed between

the guerillas and the Salvadoran government in 1991 and the absence

of evidence that any remaining guerillas would continue to harbor

an interest in the petitioner sixteen years after he left El

Salvador.     Consequently, the IJ denied petitioner's requests for

asylum and withholding of removal.

            On appeal, the BIA affirmed.        The agency agreed that the

petitioner had established neither a nexus between the allegedly

persecutory     acts   and   a    statutorily   protected     ground   nor   an

objectively reasonable fear of future persecution.               This timely

petition for judicial review followed.

            Where, as here, the BIA adopts and affirms a portion of

the IJ's decision while also providing additional analysis, we

review the adopted portions of the IJ's decision as well as the

BIA's additions.       Acevedo-Aguilar v. Mukasey, 517 F.3d 8, 9 (1st

Cir. 2008) (citing Stroni v. Gonzales, 454 F.3d 82, 87 (1st Cir.

2006); Sulaiman v. Gonzales, 429 F.3d 347, 350 (1st Cir. 2005)).

Our review proceeds according to the substantial evidence standard,

                                        -4-
which demands    deference     to   agency   findings      of    fact    that are

"supported by reasonable, substantial, and probative evidence on

the record considered as a whole." INS v. Elias-Zacarias, 502 U.S.

478, 481 (1992) (quotation marks omitted).                 Thus, rejecting a

factual determination is inappropriate unless the record evidence

compels a conclusion to the contrary.             Id. at 481 n.1; see also

Albathani v. INS, 318 F.3d 365, 372 (1st Cir. 2003) ("Merely

identifying    alternative     findings    that    could    be    supported     by

substantial    evidence   is    insufficient      to   supplant         the   BIA's

findings.").

            To be eligible for asylum, an alien must establish that

he is unwilling or unable to return to his home country due to 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); see id. § 1158 (b)(1)(B). An

applicant may carry this burden by demonstrating past persecution,

which creates a rebuttable presumption that a well-founded fear of

future persecution endures.         8 C.F.R. § 1208.13(b)(1).             A well-

founded fear may be established regardless of whether there was

past persecution, id. § 1208.13(b)(2), but the petitioner here

makes no effort to argue that he has established fear of future

persecution independent from his claim of past persecution.3                   See

     3
       This argument was absent from the petitioner's brief to the
BIA, as well. The government asserts that any potential challenge
to the IJ's finding that he did not have an objectively reasonable
fear of future prosecution was therefore abandoned long before

                                     -5-
Makhoul v. Ashcroft, 387 F.3d 75, 82 (1st Cir. 2004). Accordingly,

proof of past persecution is his only remaining avenue to potential

relief.

            To demonstrate past persecution, Guerrero must produce

"convincing evidence of a causal connection" between the harm that

he endured and a statutorily protected ground - in this case, his

political belief.      Amouri v. Holder, 572 F.3d 29, 33 (1st Cir.

2009). The Supreme Court long ago cautioned that in the context of

alleged persecution at the hands of guerilla groups, "the mere

existence   of   a   generalized   'political'   motive   underlying   the

guerillas' [mistreatment] is inadequate to establish . . . the

proposition that [a petitioner] [suffered] persecution on account

of political opinion . . . ."       Elias-Zacarias, 502 U.S. at 482.

Rather, the petitioner must provide evidence, whether direct or

circumstantial, that the persecutor was motivated at least in part

by the victim's political opinion.        Id. at 817; see also Sompotan

v. Mukasey, 533 F.3d 63, 69, 69 n.3 (1st Cir. 2008) (elucidating

the standard for assessing mixed-motives in applications that, like

Guerrero's, were filed prior to the May 11, 2005 effective date of

the REAL ID Act, 8 U.S.C. § 1158(b)(1)(B)(I)).               Absent such

evidence, we have consistently held that "the classic pattern of


arrival at our door. See Silva v. Gonzales, 463 F.3d 68, 72 (1st
Cir. 2006) ("Under the exhaustion of remedies doctrine, theories
insufficiently developed before the BIA may not be raised before
this court." (citation omitted)); see also 8 U.S.C. § 1252(d)(1).
Because the claim has in any event been waived in the petition for
judicial review, we need not address this contention.

                                    -6-
forced recruitment is far and away the more plausible explanation"

for     compelled     assistance        in     the     guerillas'        cause.

Velasquez-Valencia v. INS, 244 F.3d 48, 50 (1st Cir. 2001); accord

Tobon-Marin     v.   Mukasey,   512     F.3d     28,    32     (1st   Cir.   2008);

Bartolo-Diego v. Gonzales, 490 F.3d 1024, 1028 (1st Cir. 2007).

             The petitioner challenges the agency's determination that

the mistreatment that he suffered was "more in the nature of []

forced conscription than of persecut[ion]."                  He emphasizes that

unlike in Elias-Zacarias and related cases, the guerillas knew his

political view and even attempted to change it by forcing him to

attend political meetings.         On the basis of this evidence, he

asserts that whatever the guerillas' other reasons for targeting

him    for   mistreatment,   one   of    their       motives    was   clearly     his

political opinion.      For the reasons discussed below, we do not

believe the evidence mandates a finding to that effect.

             We begin with the evidence, credited by the IJ and BIA,

that   the   petitioner's    political       opinion     was    either   known     or

presumed by the guerillas.            While such evidence is certainly

necessary to the petitioner's claim, see, e.g., Elias-Zacarias, 502

U.S. at 482 (denying petition in light of lack of evidence that

petitioner ever expressed any political support for or opposition

to either side of conflict or that the guerillas ever attributed to

him a political motive for refusal to join ranks); Tobon-Marin, 512

F.3d at 31-32 (same); Bartolo-Diego, 490 F.3d at 1027 (same);

Velasquez-Valencia, 244 F.3d at 50 (same), it is not sufficient.

                                      -7-
It is not enough to point to the guerillas' presumed knowledge of

Guerrero's opposition to their cause, or even to argue, as the

petitioner does, that the guerillas had "very little regard for his

safety and well-being" because of it.             To demonstrate persecution

"on account of" his political belief, the petitioner must also

provide specific evidence that the FMLN targeted him as a means to

punish him for the pro-government, anti-guerilla view that they

attributed to him.        See Tobon-Marin, 512 F.3d at 31 (citations

omitted).

            That   the   guerillas      forced    the     petitioner   to   attend

political   rallies      along   with    his     fellow    villagers   does   not

unarguably demonstrate such politically-motivated punitive intent.

While the Board might have inferred that the guerillas forced the

petitioner to attend these rallies in order to punish him for and

to overcome his opposition to their cause, it could also have

reasonably concluded that the events had less to do with the

petitioner's   political     beliefs      than     with    the   guerillas'   own

political and military strategy.          Cf. Elias-Zacarias, 502 U.S. at

482 ("[P]ersecution on account of . . . political opinion . . . is

persecution on account of the victim's political opinion, not the

persecutor's.").     It is plausible, for example, that the guerillas

rounded up the petitioner and his fellow villagers in order to

create an illusion of greater popular support for what was, after

all, alleged to be a popular cause.            They may also have sought, in

a classic tactic of guerilla warfare, to blur the lines between

                                        -8-
their forces and the civilian population.               "Where, as here, the

constellation of facts and circumstances alleged by the asylum

applicant . . . support two or more competing inferences, the

[agency's]     choice   among     those    inferences     cannot     be   deemed

erroneous."     Aguilar-Solis v. INS, 168 F.3d 565, 571 (1st Cir.

1999) (citation omitted). A fortiori, the record evidence does not

compel the conclusion that the petitioner's forced attendance at

political rallies - much less any of the other incidents that

comprise his claim - bore a nexus to a protected ground.4

          Having determined that the petitioner has failed to

surmount the standard of review with respect to his claim of past

persecution,    we   need   not   linger   over   his    remaining    claims.

Inasmuch as he has failed to establish past persecution, his

arguments with respect to the possibility of relief under the

humanitarian exception are moot.5          Moreover, his unsuccessful bid


     4
      The IJ also found that the events described by Guerrero were
not sufficiently severe to rise to the level of persecution, but
the BIA did not reach that issue.
     5
       In an apparent acknowledgment of the difficulty that he
would face in maintaining a presumption of a well-founded fear of
persecution arising out of past persecution, cf. Aguilar-Solis, 168
F.3d at 572 (holding that the Salvadoran peace accords constituted
changed country conditions supporting the agency's finding that the
petitioner's fear of the FMLN was not objectively reasonable), the
petitioner notes that even in the event of a government rebuttal he
may still be granted asylum under the so-called "humanitarian
exception," see 8 C.F.R. § 1208.13(b)(1)(iii).      The petitioner
recognizes, however, that relief under the humanitarian exception
is available only to applicants who successfully establish past
persecution.   See id.    As the petitioner has not made such a
showing, we do not reach his claim that the IJ should have made a
finding regarding eligibility for relief under this exception.

                                     -9-
for   asylum     necessarily    precludes   his   counterpart   claim    for

withholding of removal.        See Morgan v. Holder, 634 F.3d 53, 60 (1st

Cir. 2011) (citing Amouri, 572 F.3d at 35).

           For    the   reasons   elucidated   above,   the   petition   for

judicial review must be denied.6




      6
       Notwithstanding our disposition of the petition, Guerrero is
not without reprieve, at least temporarily.      Guerrero has been
granted Temporary Protected Status ("TPS") pursuant to 8 U.S.C. §
1254a. See also U.S. Citizenship and Immigration Serv., Dep't of
Homeland Sec., DHS Docket No. USCIS 2007-0028, Extension of the
Designation of El Salvador for Temporary Protected Status and
Automatic Extension of Employment Documentation for Salvadoran TPS
Beneficiaries (extending El Salvador's TPS designation, previously
set to expire on March 9, 2012, through September 9, 2013).
Although TPS does not preclude the initiation of deportation
proceedings or the entry of an order of removal, it does prohibit
such an order from being executed during the pendency of the
designation. 8 U.S.C. § 1254a(a)(1)(A) ("[T]he Attorney General .
. . shall not remove the alien from the United States during the
period in which [TPS] status is in effect . . . ."); see also In re
Sosa Ventura, 25 I&N Dec. 391 (BIA 2010) ("[T]he respondent is
protected from execution of a removal order during the time her TPS
status is valid . . . ."); cf. Yao v. INS, 2 F.3d 317, 319 (9th
Cir. 1993) (concluding that alien's pending application for
legalization of immigration status as Special Agricultural Worker
did not preclude initiation of deportation proceedings or entry of
deportation order, but did prohibit execution of the order).
Consequently, Guerrero should not be ordered to depart from the
United States unless and until his TPS status expires or is
otherwise forfeited.

                                     -10-
