                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 20 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                           FOR THE NINTH CIRCUIT


CARLOS SANTOS-CANAS;                   )      No. 08-71600
MARIA ELENA RAMOS,                     )
                                       )      Agency Nos. A072-399-491
      Petitioners,                     )                  A075-582-693
                                       )
      v.                               )      MEMORANDUM *
                                       )
ERIC H. HOLDER Jr., Attorney           )
General,                               )
                                       )
      Respondent.                      )
                                       )

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                           Submitted November 7, 2012 **
                             San Francisco, California

Before:      FERNANDEZ and BERZON, Circuit Judges, and SMITH,***
             District Judge.




      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      **
      The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
      ***
         The Honorable William E. Smith, United States District Judge for the
District of Rhode Island, sitting by designation.
      Carlos Santos-Canas and his spouse, Maria Elena Ramos,1 natives and

citizens of Guatemala, petition for review of the Board of Immigration Appeals’

denial of their applications for asylum.2 We deny the petition.

      The BIA’s determination that an alien is not eligible for asylum must be

upheld if “‘supported by reasonable, substantial, and probative evidence on the

record considered as a whole.’” INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.

Ct. 812, 815, 117 L. Ed. 2d 38 (1992). “It can be reversed only if the evidence

presented . . . was such that a reasonable factfinder would have to conclude that the

requisite fear of persecution existed.” Id.; see also Farah v. Ashcroft, 348 F.3d

1153, 1156 (9th Cir. 2003). When an alien seeks to overturn the BIA’s adverse

determination, “he must show that the evidence he presented was so compelling

that no reasonable factfinder could fail to find the requisite fear of persecution.”

Elias-Zacarias, 502 U.S. at 483–84, 112 S. Ct. at 817. When an asylum claim is



      1
       Ramos’s application for asylum was derivative of Santos’s and rises or falls
with the latter’s. See 8 U.S.C. § 1153(d). Thus, we will not refer to her separately
hereafter.
      2
        8 U.S.C. § 1158. We note that Santos also applied for withholding of
removal and for relief under the Convention Against Torture. See 8 U.S.C.
§1231(b)(3) (withholding); United Nations Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment, adopted Dec. 10, 1984, S.
Treaty Doc. No. 100-20 (1988), 1465 U.N.T.S. 85, implemented at 8 C.F.R.
§ 1208.18. However, Santos does not appeal the denial of those forms of relief.

                                           2
involved, an alien must show either past persecution or a well-founded fear of

future persecution that is “subjectively genuine and objectively reasonable.”

Fisher v. INS, 79 F.3d 955, 960 (9th Cir. 1996) (en banc); see also Gu v. Gonzales,

454 F.3d 1014, 1019 (9th Cir. 2006).

      Santos cannot meet his heavy burden. All of his claims on appeal are

premised on his assertion that he was subjected to past persecution. However, we

have reviewed the record and are satisfied that the BIA’s decision was supported

by substantial evidence.3 For example, while guerrillas did seek Santos and did

make some threats, he was never personally confronted by them, and the threats

themselves were vague. See Canales-Vargas v. Gonzales, 441 F.3d 739, 744 (9th

Cir. 2006); Nahrvani, 399 F.3d at 1153–54; Lim v. INS, 224 F.3d 929, 936 (9th

Cir. 2000). Moreover, the activities of the guerrillas may simply have been

attempts to recruit him into their ranks. See Elias-Zacarias, 502 U.S. at 482–83,

112 S. Ct. at 816. In short, the evidence does not compel a determination that he

was persecuted by the guerrillas on political grounds or otherwise.

      Petition DENIED.




      3
       In fact, the Immigration Judge’s decision was the final agency decision.
See 8 C.F.R. § 1003.1; Zara v. Ashcroft, 383 F.3d 927, 930–31 (9th Cir. 2004); see
also Nahrvani v. Gonzales, 399 F.3d 1148, 1151 (9th Cir. 2005); Falcon Carriche
v. Ashcroft, 350 F.3d 845, 855 (9th Cir. 2003).

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