                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 11a0455n.06
                                                                                                                FILED
                                                  Case No. 09-4388
                                                                                                           Jul 06, 2011
                                 UNITED STATES COURT OF APPEALS                                    LEONARD GREEN, Clerk
                                      FOR THE SIXTH CIRCUIT

 RAUL CASTELLANOS-SALAZAR,                                         )
                                                                   )
             Petitioner,                                           )       PETITION FOR REVIEW OF
                                                                   )       AN ORDER OF THE BOARD
                    v.                                             )       OF IMMIGRATION APPEALS
                                                                   )
 ERIC H. HOLDER, Jr.,U.S. Attorney                                 )
 General,                                                          )
                                                                   )
       Respondent.                                                 )
 _______________________________________

Before: BATCHELDER, Chief Judge; CLAY and SUTTON, Circuit Judges.

         ALICE M. BATCHELDER, Chief Judge. Raul Castellanos-Salazar, a native and citizen

of Guatemala, seeks review of the decision by the Board of Immigration Appeals (BIA) affirming

an immigration judge’s (IJ’s) denial of his application for asylum.1 We DENY the petition.

         From June 2000 until late 2004, Castellanos-Salazar was a member of a national labor

federation in Guatemala, the “Trade Workers Union of Guatemala” (“UNSITRAGUA” or “Union

Sindical de Trabajadores de Guatemala”), for which he wrote and distributed fliers advocating

workers’ rights. Shortly after beginning this job, he began to receive telephone calls at the office —

all from the same, unknown person — threatening to harm or kill him if he did not stop distributing



         1
          In his initial filings with the immigration court, Castellanos-Salazar moved for relief from removal on the bases
of asylum, withholding of removal under the INA, and protection under the Convention Against Torture. The
immigration court denied all three bases, Castellanos-Salazar appealed all three denials to the Board, and the Board
affirmed the denial of all three. On appeal to this court, Castellanos-Salazar challenges only the denial of his application
for asylum. See Reply Brief for the Petitioner at 1 (“Mr. Castellanos concedes [that he] has not raised as issues on appeal
past persecution or that he is eligible for withholding or protection under the Convention Against Torture.”).
No. 09-4388, Castellanos-Salazar v. Holder




the fliers/pamphlets. Castellanos-Salazar claims multiple such calls each day for the duration of his

employment.

          Castellanos-Salazar testified that he did not know who made the calls or where the calls were

coming from, but suspected that the calls came from someone in the army because the caller used

a “command voice.” Castellanos-Salazar informed the public ministry and the archbishop’s office

about these calls but does not believe that they investigated. No threat was ever carried out against

Castellanos-Salazar; he was never confronted in person or harmed in any way. But, due to the fear

instilled by the threatening telephone calls, Castellanos-Salazar fled to the United States in early

2005. He testified that he does not believe he could now be safe anywhere in Guatemala.

          Following his removal hearing, the IJ found Castellanos-Salazar “not to be a fully credible

witness.” The IJ cited three reasons for this finding: (1) Castellanos-Salazar told the Border Patrol

Agent at the time of his arrest that he had come to the United States to work and had no fear of

returning to Guatemala; (2) Castellanos-Salazar testified at the hearing that he received two or three

threatening calls per day, but in his earlier written statement he asserted eight to ten calls per day;

and (3) Castellanos-Salazar testified at the hearing that he reported the threats “every so often,” but

in his earlier written statement he said he reported them about “twice a month.” The IJ concluded

that these discrepancies and inconsistencies “go to the heart of his claim” because they “concern the

very reason he said he came to the United States.”

          The IJ also determined that Castellanos-Salazar could not prove past persecution because he

had suffered no physical harm. In fact, it appeared that no attempt was ever made to carry out any

of the threats. The IJ determined that Castellanos-Salazar could not prove an objectively reasonable

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No. 09-4388, Castellanos-Salazar v. Holder




fear of future persecution because he was never actually harmed or even faced with harm despite

receiving two to ten threatening calls per day for a period of four or five years. The IJ classified

these threatening phone calls as “systematic harassment but not persecution.”

          When the IJ denied his application, Castellanos-Salazar appealed to the BIA. The BIA found

that “the principal shortcomings and inconsistencies cited by the Immigration Judge are present in

the record, are substantial and go to the heart of the respondent’s claim, and have not been

adequately explained by the respondent.” Moreover, the BIA agreed that Castellanos-Salazar could

not show past persecution or that the threatening calls were “from persons the government of

Guatemala is unwilling or unable to control.” Therefore, even if Castellanos-Salazar were credible,

the BIA concluded that he could not satisfy the burden of proving himself eligible for asylum.

          Castellanos-Salazar appealed to this court, arguing that the IJ and BIA erred by finding him

not credible and by holding that he had failed to prove a well-founded fear of future persecution.

Castellanos-Salazar argues that the discrepancies and inconsistencies in his testimony were

immaterial, attributable to nervousness or misunderstanding of the questions, or possibly due to the

interpreter. He contends that his hearing testimony was credible and, when coupled with the

testimony of his expert witness (an expert on current conditions in Guatemala), establishes an

objectively reasonable, well-founded fear of future persecution sufficient to warrant asylum.

          When the BIA issues its own opinion, we review the BIA’s decision as the final agency

determination. Morgan v. Keisler, 507 F.3d 1053, 1057 (6th Cir. 2007). We review questions of

law de novo, granting substantial deference the BIA’s interpretation of the statute and applicable

regulations; we review findings of fact to ensure that they are “supported by reasonable, substantial,

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No. 09-4388, Castellanos-Salazar v. Holder




and probative evidence on the record considered as a whole.” INS v. Elias-Zacarias, 502 U.S. 478,

481 (1992). Under the substantial-evidence standard, we may not reverse simply because we would

have decided differently. Gishta v. Gonzales, 404 F.3d 972, 978 (6th Cir. 2005). Rather,

“administrative findings of fact are conclusive unless any reasonable adjudicator would be compelled

to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B) (emphasis added).

          “The disposition of an application for asylum involves a two-step inquiry: (1) whether the

applicant qualifies as a refugee as defined in 8 U.S.C. § 1101(a)(42)(A), and (2) whether the

applicant merits a favorable exercise of discretion by the Attorney General.” Kouljinski v. Keisler,

505 F.3d 534, 541 (6th Cir. 2007) (quotation marks omitted). “[T]o qualify as a refugee,” the

applicant must establish “that he or she has suffered past persecution on the basis of race, religion,

nationality, social group, or political opinion; or . . . show[] that he or she has a well-founded fear

of [future] persecution on one of those same bases.” Id.; see also 8 C.F.R. § 1208.13(b). If eligible,

the applicant still bears the “burden of establishing that the favorable exercise of discretion is

warranted.” Kouljinski, 505 F.3d at 542 (quotation marks omitted).

          “Persecution entails punishment or the infliction of suffering or harm, but harassment or

discrimination without more does not rise to the level of persecution.” Sako v. Gonzales, 434 F.3d

857, 862 (6th Cir. 2006) (quotation marks omitted). “[A]n applicant cannot rely on speculative

conclusions or mere assertions of fear of possible persecution, but instead must offer reasonably

specific information showing a real threat of individual persecution.” Mapouya v. Gonzales, 487

F.3d 396, 412 (6th Cir. 2007) (quotation marks omitted). Fear of future persecution must be both

subjectively genuine and objectively reasonable. Id.; see also 8 C.F.R. § 1208.13(b)(1)(i).

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No. 09-4388, Castellanos-Salazar v. Holder




          In the present case, Castellanos-Salazar describes circumstances in which a caller threatened

him numerous times a day for a period of four to five years, but during all that time never took any

action in fulfillment of those threats. We find no error in the IJ’s and BIA’s decisions that the

harassment does not demonstrate a real threat of persecution and, therefore, Castellanos-Salazar

cannot establish an objectively reasonable, well-founded fear of future persecution.

          We DENY the petition for review.




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