               NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                          File Name: 09a0744n.06

                                          No. 09-3138                               FILED
                                                                                 Nov 18, 2009
                         UNITED STATES COURT OF APPEALS                    LEONARD GREEN, Clerk
                              FOR THE SIXTH CIRCUIT


BLANCA ESTELA MORAN-QUINTEROS,                          )
                                                        )       ON PETITION FOR REVIEW
       Petitioner,                                      )       OF A DECISION OF THE
                                                        )       BOARD OF IMMIGRATION
v.                                                      )       APPEALS
                                                        )
ERIC H. HOLDER, JR., Attorney General                   )                         OPINION
                                                        )
       Respondent.                                      )




BEFORE:       DAUGHTREY, COLE, and GIBBONS, Circuit Judges.

       COLE, Circuit Judge. Blanca Estela Moran-Quinteros, a fifty-year-old native and citizen

of Guatemala, petitions for review of a decision by the Board of Immigration Appeals affirming an

immigration judge’s denial of her application for asylum and request for withholding of removal.

Moran sought asylum based on threats that her family received from guerillas in Guatemala in the

early 1990s. The Immigration Judge determined that, while credible, Moran did not establish past

persecution or a well-founded fear of future persecution. For the following reasons, we AFFIRM

the Board of Immigration Appeal’s decision and DENY Moran’s petition for review.

                                      I. BACKGROUND

A.     Factual Background

       From 1960 until 1996, Guatemala experienced internal armed conflict, and guerillas
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terrorized many Guatemalans. Moran’s1 family was no exception. Guerillas demanded provisions,

including food and water, from her family and threatened her father. On one occasion, the guerillas

told Moran’s father “that if he didn’t leave his home, they were going to kill him.” (Petitioner’s

Appendix (“Pet. App.”) 25.) Due to these threats, Moran’s father and her six siblings moved to

another village in Guatemala.

       Instead of accompanying her family to another part of Guatemala, Moran fled to the United

States and entered this country without inspection in 1990. On October 14, 1993, Moran filed an

asylum application with the former Immigration and Naturalization Service (“INS”). While her

application was pending, she was paroled into the United States under 8 U.S.C. § 1182(d)(5)(A),

which permits aliens to be granted temporary stay. Moran was most recently paroled on September

14, 2003, but after her application was referred to an Immigration Judge (“IJ”), her parole status was

terminated. On April 10, 2007, the Department of Homeland Security (“DHS”) served Moran with

a notice to appear, charging her as an alien failing to possess a valid entry document and thus as

inadmissible to the United States under 8 U.S.C. § 1182(a)(7)(A)(i)(1). Moran appeared with

counsel before the IJ on May 10, 2007, admitted the truth of all the factual allegations contained in

the notice to appear, and conceded removability as charged. Moran sought relief from removal based

on several theories: (1) asylum and the Convention Against Torture (“CAT”); (2) withholding of

removal; (3) cancellation of removal; (4) cancellation of removal for certain non-permanent

residents; and (5) in the alternative, voluntary departure.



       1
           We will refer to Blanca Estela Moran-Quinteros as “Moran,” as did her briefs.

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        While Moran lived in the United States, her father and siblings remained in Guatemala.

Moran testified that after her family moved to the new village, the guerillas “didn’t do anything to

[her father].” (Pet. App. 25). Moran’s father still resides in Guatemala, and, of her six siblings, five

live safely in Guatemala. However, in 1997, one of Moran’s brothers returned to their former village

and was killed. Moran testified that she does not know if the guerillas killed her brother for a

statutorily protected reason or if he was killed in connection with a robbery.

        Moran is the mother of two sons and three daughters. Two of her daughters, Gladys Gesenis

Sanctus Moran and Mary Lou Sanctus, live in the United States. She also claims to have six

grandchildren who are United States citizens but offered no evidence to support this assertion.

B.      Immigration Court Decision

        On March 14, 2008, the IJ denied Moran’s applications for cancellation of removal, asylum,

withholding of removal, and protection under the CAT. The IJ found Moran ineligible for

cancellation of removal because she lacked a qualifying permanent resident or United States citizen

spouse, parent, or child. The IJ explained that, although one of Moran’s daughters, Gesenia, might

be a permanent resident, she is thirty-six years old and thus not a child. The IJ further concluded that

a grandchild is not a qualifying resident under the Immigration and Nationality Act.

        As to Moran’s asylum application, the IJ found Moran credible but concluded that Moran

failed to establish that she either suffered past persecution or has a well-founded fear of future

persecution. The IJ observed that although Moran “does seem to be somewhat traumatized by

having to leave her home and country, nothing actually happened to her, physically, other than the

threat to her family.” (Pet. App. 11.) Thus, the IJ concluded, she suffered no past persecution.

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Because of this conclusion, the IJ also rejected Moran’s plea for humanitarian asylum, which

likewise requires a showing of past persecution.

       The IJ further rejected Moran’s claim that she has a well-founded fear of future persecution.

“[A]ny threat to [Moran] at this time would be a threat of criminal gangs and not a threat on account

of any of the factors for which refugee status can be granted under Section 101(a)(42) of the Act.”

(Pet. App. 8.) The IJ came to this conclusion because Moran did not present evidence that she would

be targeted because of her race, religion, nationality, membership in a particular social group, or any

political opinion. Because Moran failed to establish eligibility for asylum, the IJ found that she

necessarily failed to meet the higher burden of proof required for withholding of removal.

       Next, the IJ decided that Moran did not state a claim under the CAT because any harm that

she suffered was not “done by the [Guatemalan] government or by any perpetrator that the

government consents, acquiesces, or turns a willfully blind eye to.” (Pet. App. 12.) While Moran’s

fear of criminals is certainly not unreasonable, explained the IJ, it is not considered persecution

under the Act. Finally, the IJ noted that Moran’s fear is undermined by the fact that her family still

lives in Guatemala, and Moran is unable to show that any threat to her would be countrywide. (Pet.

App. 12.) Therefore, the IJ rejected her claims.

C.     Board of Immigration Appeals Decision

       Moran timely appealed the IJ’s decision to the Board of Immigration Appeals (“BIA”),

arguing that the IJ erred in finding that she was not persecuted on account of membership in a

particular social group––her family. Although Moran’s brief referred to only her claim for

withholding of removal, the BIA construed her appeal as including her asylum claim. The BIA also

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noted that Moran did not contest the denial of cancellation of removal and protection under the CAT.

The BIA found no reversible error in the IJ’s decision, agreeing with the IJ that, while credible,

Moran’s account is insufficient to establish past or future persecution on a protected ground.

Further, the BIA recognized that, under Sixth Circuit precedent, kinship ties may serve as the shared

characteristic of a particular social group, but the “bare assertion” that guerillas killed Moran’s

brother in 1997 is inadequate to justify Moran’s fears of future persecution.

                                          II. ANALYSIS

       Although Moran sought CAT protection from the immigration court, she has abandoned the

claim on appeal. In addition, she has not challenged the IJ’s ruling that a grandchild does not satisfy

the statutory definition of “child” under the Immigration and Nationality Act. Thus, we consider

only her claims for asylum and withholding of removal.

A.     Standard of Review

       In a case in which the BIA both sets forth its own reasoning and adopts portions of the IJ’s

decision, we review both the BIA’s decision and the adopted portions of the IJ’s decision. See Zhao

v. Holder, 569 F.3d 238, 246 (6th Cir. 2009). In other words, this Court “‘directly reviews the

decision of the IJ while considering the additional comment made by the BIA.’” Id. (quoting

Mapouya v. Gonzales, 487 F.3d 396, 405 (6th Cir. 2007)). This Court reviews the BIA’s legal

conclusions de novo, although it must defer to the BIA’s reasonable interpretations of the

Immigration and Nationality Act. Id. at 247 (citing Koulibaly v. Mukasey, 541 F.3d 613, 619 (6th

Cir. 2008)). We review factual findings under a substantial-evidence standard, upholding such

findings as long as they are supported by “reasonable, substantial, and probative evidence on the

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record considered as a whole.” Id. (quotation omitted). “Under this deferential standard, the court

may not reverse the Board’s determination simply because we would have decided the matter

differently.” Koulibaly, 541 F.3d at 619 (quotation omitted). 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).

B.     Asylum Claim

       The Attorney General has the discretion to grant asylum to a “refugee,” which is defined as

a person “who is unable or unwilling to return to” her country “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.” 8 U.S.C. § 1101(a)(42)(A). An applicant may establish her status

as a refugee by showing either that she suffered persecution in her country in the past or that she has

a well-founded fear of persecution upon returning to her country. 8 C.F.R. § 1208.13(b). The

applicant bears the burden of qualifying as a refugee. Sako v. Gonzales, 434 F.3d 857, 862 (6th Cir.

2006). “Persecution entails punishment or the infliction of suffering or harm, but harassment or

discrimination without more does not rise to the level of persecution.” Id. (quotations 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, 487 F.3d at 412 (internal quotation marks omitted). An alien’s

fear of future persecution must be both subjectively genuine and objectively reasonable, and a

showing of past persecution creates a rebuttable presumption that the alien has a well-founded fear

of future persecution. Id.; 8 C.F.R.§ 1208.13(b)(1)(i).

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       Moran claims that she is entitled to asylum because she suffered past persecution and she has

a well-founded fear of future persecution.

       1. Past Persecution

       Three reasons support the BIA’s conclusion that Moran did not suffer past persecution. First,

Moran identified only one threat against her family and recounted no incidents of physical harm.

The Immigration and Nationality Act does not define persecution, but in Mikhailevitch v. INS, this

Court held that persecution “requires more than a few isolated incidents of verbal harassment or

intimidation, unaccompanied by any physical punishment, infliction of harm, or significant

deprivation of liberty.” 146 F.3d 384, 390 (6th Cir. 1998); see also Sako, 434 F.3d at 862. Thus,

even if guerillas verbally threatened to kill Moran’s father and demanded food and water, these

threats arguably do not rise to the level of persecution because, in general, unfulfilled

threats––without physical harm––do not constitute persecution. See Canales-Vargas v. Gonzales,

441 F.3d 739, 744 (9th Cir. 2006).

       Second, Moran admits that she suffered no harm in Guatemala. In Gilaj v. Gonzales, this

Court explained that to demonstrate past persecution, “the applicant must establish that he or she was

specifically targeted by the government for abuse based on a statutorily protected ground and was

not merely a victim of indiscriminate mistreatment.” 408 F.3d 275, 285 (6th Cir. 2005) (per curiam).

Here, Moran has offered no evidence that she personally experienced harm that qualifies as past

persecution. She testified that she was afraid to return to Guatemala because of “what [she] went

through,” but when the IJ asked her to clarify, she could not identify specific harm that she suffered.

(Pet. App. 30-31.) In addition, it is not clear from the record that her family was targeted for any

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statutorily protected reason. Without more, Moran has not shown past persecution.

       Third, Moran’s family, including her father, moved to another village in Guatemala and has

lived there safely since 1990. In Pilica v. Ashcroft, this Court held that “isolated occurrences” of

mistreatment, which included two arrests and a beating by policemen, did not constitute past

persecution. 388 F.3d 941, 954 (6th Cir. 2004). Because Moran’s family has lived safely in

Guatemala for nearly two decades, the incidents with guerillas in 1990 were arguably “isolated

occurrences” and, therefore, do not establish past persecution sufficient to reverse the BIA’s

decision.

       2. Future Persecution

       An applicant can establish that she has a well-founded fear of future persecution by showing

that her fear is genuine, and that a reasonable person in her circumstances would fear persecution

on account of a statutorily protected ground if returned to her country of origin. See Mikhailevitch,

146 F.3d at 389. Moran’s claim that she has a well-founded fear of future persecution overlaps with

her claim of past persecution. But again, the record is insufficient to support her claim.

       Moran relies on the threats against her father to establish her fear of future prosecution. In

Akhtar v. Gonzales, this Court stated: “Although acts of violence against an alien’s family members

may demonstrate a well-founded fear of persecution, absent a pattern of persecution tied to the

asylum applicant himself or herself, acts of violence against family members do not necessarily

demonstrate a well-founded fear of persecution.” 406 F.3d 399, 405 (6th Cir. 2005) (citing

Gebremaria v. Ashcroft, 378 F.3d 734, 739 (8th Cir. 2004)). As explained above, the evidence that

Moran offered falls short of demonstrating a pattern of persecution.

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          Moran also relies on her brother’s murder as a basis for asylum. She admitted, however, that

she does not know whether guerillas killed her brother or whether he was murdered in connection

with a robbery. Thus, she offered no conclusive evidence that her brother was specifically targeted

by guerillas as opposed to being a victim of a random act of violence in a violent country. And,

while her fear of general crime may be genuine and reasonable, it is insufficient to warrant asylum.

See Akhtar, 406 F.3d at 405 (“Congress did not intend to confer eligibility for asylum on all persons

who suffer harm from civil disturbances . . . .”) (internal quotation marks omitted).

          Finally, Moran’s fear of future persecution is undermined because she has not demonstrated

that the cause of her fear is countrywide. See 8 C.F.R. § 1208.13(b)(2)(ii) (“An applicant does not

have a well-founded fear of persecution if the applicant could avoid persecution by relocating to

another part of the applicant’s country . . . .”). In Pascual v. Mukasey, this Court concluded that

where the record indicated that members of the petitioner’s family had lived unharmed for nearly

sixteen years, it was “reasonable to expect [the petitioner] to do so as well.” 514 F.3d 483, 489 (6th

Cir. 2007). The Court further observed that where the petitioner evaded the question of whether he

could safely return to the area where his family resided, his answer implied that it would be safe to

return. Id. Here, Moran’s family has remained unharmed in Guatemala since the early 1990s.

Moreover, like the petitioner in Pascual, Moran refused to answer when asked whether she could

safely live in the village where her family resides. Thus, we must assume that it would be safe for

Moran to return to Guatemala and live in the village where her family resides. See Pascual, 514 F.3d

at 489.



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       3. Humanitarian Asylum

       Moran also argues that she is eligible for humanitarian asylum under Matter of Chen, 20 I.

& N. Dec. 16 (BIA 1989). As an initial matter, the Government argues that this Court lacks

jurisdiction to consider this claim. We agree. The Immigration and Nationality Act provides that

“[a] court may review a final order of removal only if . . . the alien has exhausted all administrative

remedies available to the alien as of right[.]” 8 U.S.C. § 1252(d)(1). This requirement is

jurisdictional and precludes the petitioner from raising new issues in a petition for review. Liti v.

Gonzales, 411 F.3d 631, 641 (6th Cir. 2005) (“Because the [petitioner] failed to raise this issue

before the BIA below, we are without jurisdiction to consider [the] petition for review on

[humanitarian] ground[s].”) (citing 8 U.S.C. § 1252(d)(1)). Although Moran raised a humanitarian

asylum claim before the IJ, she failed to challenge the IJ’s determination on appeal to the BIA.

Therefore, this Court is without jurisdiction to consider the claim.

       Even if Moran’s humanitarian claim was properly before this Court, the claim fails on the

merits. Under 8 C.F.R. § 1208.13(b)(1)(iii), asylum may be granted where the severity of the

petitioner’s past persecution demonstrates a compelling reason for the applicant’s unwillingness to

return to her country. As explained above, Moran has not suffered past persecution. Therefore, she

necessarily fails the requirements for humanitarian asylum. Cf. Mullai v. Ashcroft, 385 F.3d 635,

638–39 (6th Cir. 2004) (upholding IJ’s decision that petitioner “failed to demonstrate past

persecution severe enough to merit a grant of asylum on humanitarian grounds” because the Court

found no evidence compelling reversal of the IJ’s conclusion that petitioner did not suffer past

persecution).

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C.        Withholding of Removal

          Finally, Moran seeks review of the IJ’s denial of withholding of removal. To obtain such

relief, Moran must show by a “clear probability” that her life or freedom would be threatened on

account of her race, religion, nationality, membership in a particular social group, or political

opinion. Mullai, 385 F.3d at 639. “[A] greater quantum of proof is required as to the likelihood of

persecution in the country of risk in order to establish eligibility for withholding” than is required

to show eligibility for asylum. Castellano-Chacon v. INS, 341 F.3d 533, 545 (6th Cir. 2003).

Because Moran fails to meet the standard for asylum, she necessarily fails the standard for

withholding of removal. See Mullai, 385 F.3d at 639 (“Because the lesser standard for establishing

asylum eludes [petitioner], we conclude that she cannot meet the more stringent requirements for

withholding of removal.”).

                                       III. CONCLUSION

          For the foregoing reasons, we AFFIRM the BIA’s decision and DENY the petition for

review.




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