                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                   July 29, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 03-60866
                           Summary Calendar


JOSE VINICIO GUTIERREZ ANTONIO,

                                      Petitioner,
versus

JOHN ASHCROFT, U.S. ATTORNEY GENERAL,

                                      Respondent.

                         --------------------
                Petition for Review of an Order of the
                     Board of Immigration Appeals
                          BIA No. A78 126 943
                         --------------------

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

     Jose Vinicio Gutierrez Antonio (“Gutierrez”) has petitioned

for review of the decision of the Board of Immigration Appeals

(“BIA”) dismissing his administrative appeal and affirming the

decision of the immigration judge (“IJ”) denying his application

for asylum and for withholding of deportation.       The BIA found,

and Gutierrez does not dispute, that the asylum application was

not timely filed and that Gutierrez had “failed to prove that

extraordinary circumstances caused the failure to meet the 1-year

deadline.”     See 8 U.S.C. § 1158(a)(2)(B) & (D).    This court does


     *
       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this opinion should not be published and is not precedent except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.
                             No. 03-60866
                                  -2-

not have jurisdiction to review these determinations.      See

8 U.S.C. § 1158(a)(3); Fesshaye v. Ashcroft, No. 03-60393, 2003

WL 23021863 (5th Cir. Dec. 24, 2003) (unpublished).

       Asylum and withholding of removal are distinct remedies.

Mikhael v. INS, 115 F.3d 299, 306 (5th Cir. 1997).     To establish

eligibility for withholding of removal, an alien must show that

his “life or freedom would be threatened in that country because

of the alien’s race, religion, nationality, membership in a

particular social group, or political opinion.”    8 U.S.C.

§ 1231(b)(3)(A).     The alien must “show a ‘clear probability’ that

he or she will be persecuted if deported.”     Mikhael, 115 F.3d at

306.

       Gutierrez contends that he has shown that he will be

persecuted if he is removed to Guatemala because he was compelled

previously to aid a guerilla group.    He fears retribution by

people in his home town and by the guerillas.    We review the

BIA’s factual findings “to determine if they are supported by

substantial evidence in the record.”     Id. at 302.   We defer to

the BIA’s decision unless the evidence compels a contrary

conclusion.    Id.   “The substantial evidence standard requires

only that the [BIA’s] conclusion be based upon the evidence

presented and that it be substantially reasonable.”

Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir. 1996)

(internal quotation marks omitted).
                           No. 03-60866
                                -3-

     Because this is a forced-conscription case, Gutierrez had to

show that there is a clear probability that he will be persecuted

because of his political beliefs if he is removed to Guatemala.

See INS v. Elias-Zacarias, 502 U.S. 478, 482 (1992).   The

persecution must be “on account of the victim’s political

opinion, not the persecutor’s.”   Id.   Apart from Gutierrez’s

statements that he had resisted conscription by the guerillas

because he did not want to be a “communist assassin” and that the

army was the “good side,” there is no evidence showing that

Gutierrez had a political opinion, much less that he was or will

be persecuted because of a political opinion.    See id. at 483.

     The facts in this case are similar to those in Elias-

Zacharias, which was an asylum case.    See id. at 478–84; see

also Girma v. INS, 283 F.3d 664, 666–67 (5th Cir. 2002) (the

burden of persuasion is less stringent in an asylum case).    In

Elias-Zacharias, the Court held that the alien had not carried

his burden of persuasion by showing that he adopted a neutral

position with regard to the guerilla conflict in Guatemala.      502

U.S. at 482–84.   Because the evidence in the instant case does

not compel a contrary conclusion, we uphold the BIA’s decision.

See Mikhael, 115 F.3d at 302.

     PETITION DENIED.
