                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                             File Name: 07a0494p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                  X
                                      Petitioner, -
 HECTOR PASCUAL,
                                                   -
                                                   -
                                                   -
                                                                          No. 06-4327
            v.
                                                   ,
                                                    >
 MICHAEL B. MUKASEY, Attorney General of the       -
                                                   -
                                    Respondent. -
 United States,

                                                   -
                                                  N

                                    On Petition for Review of an Order
                                   of the Board of Immigration Appeals.
                                             No. A70 937 959.
                                        Argued: November 30, 2007
                                 Decided and Filed: December 19, 2007
        Before: ROGERS and SUTTON, Circuit Judges; BERTELSMAN, District Judge.*
                                             _________________
                                                   COUNSEL
ARGUED: John S. Richbourg, Memphis, Tennessee, for Petitioner. Gary A. Vanasek,
ASSISTANT UNITED STATES ATTORNEY, Memphis, Tennessee, for Respondent. ON BRIEF:
John S. Richbourg, Memphis, Tennessee, for Petitioner. Gary A. Vanasek, ASSISTANT UNITED
STATES ATTORNEY, Memphis, Tennessee, for Respondent.
                                             _________________
                                                 OPINION
                                             _________________
        SUTTON, Circuit Judge. Hector Francisco-Pascual claims that he is eligible for asylum and
contends that the Board of Immigration Appeals (BIA) erred in ruling to the contrary. Because
Pascual has not established past persecution on account of his political beliefs and because at any
rate he has no reasonable fear of future persecution based on changed country conditions, we affirm.




        *
          The Honorable William O. Bertelsman, Senior District Judge for the Eastern District of Kentucky, sitting by
designation.


                                                         1
No. 06-4327           Pascual v. Mukasey                                                      Page 2


                                                  I.
        Hector Francisco-Pascual is a native and citizen of Guatemala and a member of the Mayan
Kanjobal race, one of the country’s indigenous minority populations. For much of the second half
of the 20th century, a civil war raged in Guatemala, pitting mostly indigenous, leftist guerrilla
revolutionaries against the government and right-wing paramilitary organizations.
        In responding to the guerrilla forces, the Guatemalan government created a civilian patrol
to quell the insurrection. In 1989, when Pascual was 17 or 18, the government drafted him into
service. In May 1990, after several months of civil-patrol duty, Pascual developed a fever and
missed his patrol duties for four or five days. Because he had “not serv[ed] [his] term,” patrol
members sought him out, removed him from his home and repeatedly beat him with a rope. JA 43.
The patrol members made him stand in a hole in the ground for two days, where “[y]ou can’t even
stoop down.” Id. Although Pascual claimed he “was honestly sick,” the patrol members accused
him of joining the guerrilla forces, alleging that he had skipped his duties due to his allegiance to
the revolutionaries. Id. The mayor of Pascual’s municipality eventually questioned the patrol
leaders about Pascual’s detainment and sought his release. Although the civil patrol then released
Pascual, its members continued to threaten him, telling him that he “was going to die, and that they
were going to do things” to him. JA 44.
        Pascual continued his service in the civil patrol for seven more months, until February 1991,
when “five or six of the guerrilla grabbed” him on his way to patrol duty and said, “you will come
with us, you are going to join us because you’re [serving] with the government.” JA 44–45. The
guerrillas threatened Pascual and his family and forced him to steal chicken and corn for the
guerrilla band’s sustenance. For four and a half months, the guerrillas allowed Pascual to change
his clothes once every fifteen days and to eat every three. One day, however, when the government
engaged the guerrilla forces in battle, Pascual slipped away in the confusion and walked home.
        Upon Pascual’s return, his family told him that the civil patrol had threatened them, beaten
his wife and demanded to know whether he had joined the guerrilla forces. Pascual’s father testified
that his family “was in fear of both the civil patrol and the guerrillas at that point.” JA 72. Hoping
to escape the turmoil, Pascual left Guatemala and traveled with his wife through Mexico and into
the United States in 1991, where they have resided ever since and where they have raised four
children. The Guatemalan civil war ended in 1996, and the civil patrol disbanded soon after that.
        When Pascual left Guatemala, the rest of his family “picked up and moved to another part
of the country, about seven or eight hours away in the mountains.” JA 73. They moved to a “very
quiet” mountainous region called Barrias, where there is little civilization. JA 52. While most of
Pascual’s family eventually joined him in the United States legally—including a naturalized sister,
two other sisters, one brother and his parents—he still has a brother and a sister in Barrias. When
asked whether “it would be safe . . . to go back and live in this place,” Pascual responded, “I have
children. I am the main support of my children [who] would suffer damages . . . if we have to go.”
JA 52–53. The Guatemalan government, Pascual said, has never provided anything for Mayans:
“[T]hey never provided for school or anything that we wanted to do.” JA 51. Pascual’s father
echoed the point, noting that the Guatemalan government is “uncaring” towards Mayans. JA 73.
        The Immigration and Naturalization Service discovered Pascual’s illegal presence and in
1997 charged him with entering the country without inspection and with thus being deportable under
former INA § 241(a)(1)(B). At a hearing in 1997, Pascual conceded his deportability but renewed
a previously filed application for asylum relief. Pending a final decision on the asylum application,
the Immigration Judge (IJ) ordered Pascual to have his fingerprints taken by June 29, 1998, but
Pascual failed to comply with the order. On January 28, 1999, the IJ determined that Pascual had
No. 06-4327           Pascual v. Mukasey                                                       Page 3


thereby abandoned his application for asylum, and Pascual appealed to the BIA. Four years later,
the BIA summarily reversed the IJ’s decision and remanded his case.
        In 2005, at a third hearing, Pascual testified about his mistreatment at the hands of the
Guatemalan civil patrol and his abduction by the guerrillas. The IJ found Pascual credible but held
that he had not met his burden of proving a well-founded fear of persecution. Neither Pascual’s
recruitment by the guerrillas nor his punishment for missing his civil-patrol duty, the IJ determined,
constituted past persecution on account of his political opinion. In reaching this conclusion, the IJ
acknowledged the U.S. State Department’s Country Report on Guatemala, which catalogued extant
“rampant violence in Guatemala” and the economic hardship facing Mayan minorities, JA 250, but
found that “this is not tantamount to [proving] a well-founded fear of persecution on account of any
of the established grounds,” JA 251. Even if there had been persecution, the IJ added, there were
safe places in the country to which Pascual could return, undermining his claim of country-wide
persecution. The BIA affirmed without opinion.
                                                  II.
        The Attorney General may grant asylum to a “refugee,” 8 U.S.C. § 1158(b), defined as an
alien unwilling to return home “because of persecution or a well-founded fear of persecution on
account of race, religion, nationality, membership in a particular social group, or political opinion,”
id. § 1101(a)(42)(A). Applicants who establish past persecution are entitled to a presumption that
they cannot return home based upon a well-founded fear of future persecution, but the government
can rebut this presumption if it establishes (by a preponderance of the evidence) that a “fundamental
change in circumstances” in the country has undermined any such “well-founded fear.” 8 C.F.R.
§ 1208.13(b)(1)(i)(A); see also Singh v. Ashcroft, 398 F.3d 396, 401 (6th Cir. 2005).
        Where, as here, the BIA adopts the IJ’s reasoning, we review the IJ’s decision directly,
Singh, 398 F.3d at 401, and we may reverse his determination that Pascual was ineligible for asylum
only if “no reasonable factfinder could fail to find the requisite fear of persecution,” INS v. Elias-
Zacarias, 502 U.S. 478, 484 (1992); see also 8 U.S.C. § 1252(b)(4)(B). In view of the IJ’s
unchallenged credibility determination, we accept the substance of Pascual’s testimony.
                                                  A.
         In Elias-Zacarias, the Supreme Court rejected a similar asylum claim. 502 U.S. at 479–80.
Elias-Zacarias, like Pascual, lived in Guatemala during the civil war. And Elias-Zacarias likewise
was caught between the demands of the government and the guerrillas, prompting him ultimately
to resist the guerrilla’s conscription efforts out of fear of governmental retribution and eventually
to flee the country. Id. The Court rejected Elias-Zacarias’s claim on the ground that a fear of
retaliation from a guerrilla group’s conscription efforts did not establish that the retaliation would
rise to the level of “persecution on account of political opinion.” Id. at 482. As the Court explained,
one might reasonably refuse conscription for any number of apolitical reasons—“fear of combat,
a desire to remain with one’s family and friends, a desire to earn a better living in civilian life, to
mention only a few.” Id. Even if Elias-Zacarias’s decision to remain neutral was “itself the
affirmative expression of a political opinion,” the Court said, the record did not compel the
conclusion that he reasonably feared the guerrillas would “persecute him because of that political
opinion, rather than because of his refusal to fight.” Id. at 483. To prevail, the Supreme Court made
clear, the alien must establish that the alleged persecution turned on the “victim’s political opinion,
not the persecutor’s.” Id. at 482.
       Pascual’s claim does not meet this standard. Pascual does not claim that he advocated, or
indeed held, any particular political view when he lived in Guatemala. He instead seeks asylum
based on persecution due to political opinions imputed to him by the guerrillas and the government.
No. 06-4327           Pascual v. Mukasey                                                        Page 4


The Supreme Court has not decided whether imputed political opinions may form the basis of an
asylum claim. See id. (assuming “arguendo” that an erroneously imputed political opinion “would
suffice”). Several circuit courts have held that they may. See, e.g., Morales v. I.N.S., 208 F.3d 323,
331 (1st Cir. 2000); Delgado v. Mukasey, No. 05-4393-ag, __ F.3d ___, 2007 WL 4180134, at *4
(2d Cir. Nov. 28, 2007); Balasubramanrim v. I.N.S., 143 F.3d 157, 164 n.10 (3d Cir. 1998); Abdel-
Rahman v. Gonzales, 493 F.3d 444, 450 (4th Cir. 2007); Mema v. Gonzales, 474 F.3d 412, 416–17
(7th Cir. 2007); De Brenner v. Ashcroft, 388 F.3d 629, 635–36 (8th Cir. 2004); Canas-Segovia v.
I.N.S., 970 F.2d 599, 601–02 (9th Cir. 1992); Najjar v. Ashcroft, 257 F.3d 1262, 1289 (11th Cir.
2001). And we seem to have agreed with this approach in one unpublished opinion. See Abdulnoor
v. Ashcroft, 107 F. App’x 594, 595 (6th Cir. Aug. 19, 2004). Because it is the persecutor’s motive,
not his or her mind-reading capacity, that the statute “makes . . . critical,” Elias-Zacarias, 502 U.S.
at 483, there is much to be said for this point of view. We need not resolve the point, however,
because Pascual has not established that either of his alleged persecutors acted on account of his
opinion, imputed or otherwise.
         It takes little imagination to envision the plight of a Mayan caught between the forces of the
Guatemalan government and the guerrillas during the civil war. And in this case no imagination is
needed, because we have a record replete with credible testimony from Pascual about the ruthless
treatment he received at the hands of each side to the dispute. Still, the record supports the IJ’s
determination that the actions of the government and the guerrillas furthered the groups’ political
aims, not that they were designed to persecute Pascual on account of his political beliefs. Start with
the civil patrol. No one contends that the government conscripted just one ethnic group and forced
its members, and its members alone, to bear the brunt of military service. That forces Pascual to
complain about a general requirement of conscription. Yet it is hardly unusual, much less a form
of persecution, for governments to conscript their citizens into military service, then to punish those
who do not fulfill their duty. Such conduct does not by itself ordinarily rise to the level of
persecution on the basis of political opinion. See Bradvica v. I.N.S., 128 F.3d 1009, 1013 (7th Cir.
1997); Gojcevic v. Gonzales, 142 F. App’x 257, 261 (6th Cir. July 28, 2005) (“Refusal to perform
military service in one’s native country is not ordinarily a valid basis for establishing asylum
eligibility.”) (internal quotation marks and alterations omitted); cf. Elias-Zacarias, 502 U.S. at 482
(holding that “forced recruitment” is not necessarily political persecution). Pascual’s own testimony
confirms that the civil patrol beat him because he “was not serving [his] term” of mandatory duty.
JA 43. True, the patrolmen accused him of “being part of the guerrilla,” id., and threatened his
family on that account while he was in captivity. These statements, however, do not compel a
factfinder to conclude that he was being persecuted on account of his political opinion. It is just as
plausible that they show only why the civil patrol might have been skeptical of Pascual’s
explanation for missing several days of service—that he was sick—and thus continued to punish him
because he was a deserter. Confirming the plausibility of this explanation, Pascual served seven
more months in the civil patrol after his beating without any apparent incident, allowing the
conclusion that the civil patrol’s actions stemmed from an unfortunate and inhumane form of
military discipline, not political persecution.
        A similar conclusion applies to the guerrillas’ abduction of Pascual. That action, too, could
fairly be characterized as motivated by the guerrillas’ own military, political and welfare needs, not
a desire to make Pascual pay for his political opinions. According to Pascual’s own testimony, the
guerrillas used him to support their revolutionary cause by making him steal food for them. “[T]he
mere existence of a generalized ‘political’ motive underlying the guerrillas’ forced recruitment is
inadequate to establish (and, indeed, goes far to refute) the proposition” that their actions were taken
because of anything Pascual believed. Elias-Zacarias, 502 U.S. at 482. Even if the guerrillas
abducted Pascual for what he was “doing with the government,” JA 45, that does not establish
political persecution. The obligatory nature of service in the civil patrol precludes the guerrilla
forces (or for that matter anyone else) from crediting Pascual with any political opinion based solely
on his service in the patrol. And the guerrilla force’s abduction of members of the civil patrol is as
No. 06-4327           Pascual v. Mukasey                                                       Page 5


apt to be motivated by a desire to incapacitate its adversaries as by a desire to retaliate against a
political opponent—making it impossible to say that the record compelled the IJ to find political
persecution.
        One final thought on this point: even if persecution on account of an imputed political
opinion could warrant an asylum grant in some circumstances, imputed-opinion applicants may have
more difficulty proving that they cannot return because of that persecution. See 8 U.S.C.
§ 1101(a)(42)(A) (requiring the alien to be “unable or unwilling to return . . . because of persecution
or a well-founded fear”) (emphasis added). Imputed-opinion persecution, it is well to remember,
is premised on a persecutor’s “mistaken belief about the victim’s views,” Canas-Segovia v. I.N.S.,
970 F.2d 599, 602 (9th Cir. 1992), meaning that finding a well-founded fear of future persecution
would require an inquiry into whether the prospective persecutor would make the same mistake
again if the alien returned. That seems quite unlikely in this case. Why would anyone today ascribe
a mistaken anti-government or anti-guerrilla opinion to Pascual—given that the war ended over ten
years ago and the government has since disbanded the civil patrol? Pascual offers no explanation
why or how that could happen. Even if Pascual had been subjected to past political persecution
based on an imputed political view, in other words, we nonetheless would be compelled to affirm.
                                                  B.
        Pascual’s claim also fails on an independent ground: changed conditions in Guatemala.
Although the U.S. State Department’s Country Report on Guatemala notes ongoing violence and
other problems, it says that “[t]here were no substantiated reports of politically motivated killings”
and the current Guatemalan government “generally respect[s] the human rights of its citizens.” JA
193.
        That presents a problem for Pascual’s claim. In his asylum application, he complained about
two sources of abuse—the civil war, which ended in 1996, and the civil patrol, which the
government has disbanded. In this sense, Pascual’s claim is significantly easier than that addressed
by the Court in Elias-Zacarias, as that case was decided while the Guatemalan civil war was still
ongoing. 502 U.S. at 483. Moreover, Pascual has not established a “pattern or practice” of
persecution against Mayans or any other group to which he belongs. See 8 C.F.R
§ 1208.13(b)(2)(iii)(A). Accordingly, as the war subsided, so did any objectively reasonable fear
of persecution.
        Resisting this conclusion, Pascual testified that the Guatemalan government has never
“provided for school or anything” for Mayans, JA 51, testimony that his father bolstered in noting
that the Guatemalan government is “uncaring” toward indigenous peoples, JA 73. The State
Department’s report on Guatemala provides some support for these conclusions, noting that
indigenous peoples are “outside the country’s political, economic, social, and cultural mainstream,”
JA 209, and have “limited educational opportunities and fewer employment opportunities,” JA 210.
Yet economic stratification and deficient government support, regrettable though they are, do not
establish a cognizable case of persecution. See Daneshvar v. Ashcroft, 355 F.3d 615, 624 (6th Cir.
2004) (rejecting an asylum claim based on general claims of human rights violations and economic
disadvantages).
        Making matters more difficult, Pascual has failed to show that, even if he had a reasonable
fear of persecution in certain portions of the country, he could not “avoid persecution by relocating
to another part of [his] country,” something that “it would be reasonable to expect [him] to do.”
8 C.F.R § 1208.13(b)(2)(ii); see also In re Acosta, 19 I. & N. Dec. 211, 235 (BIA 1985), modified
on other grounds by In re Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987). The record indicates that
Pascual could reasonably and safely return to live in Barrias, the “very quiet” mountainous region
where members of his family have lived since 1991. JA 52. Although Pascual states that “[t]here
No. 06-4327           Pascual v. Mukasey                                                       Page 6


is nothing there,” JA 52, the fact that members of his family reside in Barrias makes it reasonable
to expect him to be able to do so as well. When Pascual was asked whether he could safely return
to Barrias, he evaded the question by responding that he is the “main support of [his] children [who]
would suffer damages.” JA 52–53. His answer implies that it would be safe to return there and,
more significantly, makes it clear that Pascual’s fear of returning to Guatemala is not borne of a risk
of political persecution but of economic and familial harm. While we have considerable sympathy
for Pascual’s plight, it does not suffice to establish eligibility for asylum.
                                              *****
        At oral argument, the helpful counsel for each party acknowledged that Pascual’s parents and
employer have independently filed visa petitions on Pascual’s behalf, both of which the government
has approved subject to the relevant waiting lists. At some point in the relatively near term, in other
words, Pascual and his wife are quite likely to obtain permission to reside in the United States
legally. Pascual has now lived here for over 16 years, raised four children in this country and by all
accounts conducted himself as a productive member of society. As federal judges, it is of course
not our province to do anything but deny the petition for review when that is what the law and our
standard of review require. At the same time, however, we see no harm in pointing out the
obvious—that, if Pascual and his wife are apt to receive permission to stay in this country soon, it
may not make sense for the government to deport them immediately, whether the law permits it to
do so or not, in view of the harm deportation will cause their children and family.
                                                 III.
       For these reasons, we deny the petition for review.
