                     United States Court of Appeals
                           FOR THE EIGHTH CIRCUIT
                                    ___________

                                    No. 03-1493
                                    ___________

Manuel Admin Chay-Velasquez,         *
                                     *
             Petitioner,             *
                                     *      Petition for Review of an
       v.                            *      Order of the Board of
                                     *      Immigration Appeals.
John Ashcroft, Attorney General      *
of the United States,                *
                                     *
             Respondent.             *
                                ___________

                              Submitted: March 11, 2004

                                   Filed: May 6, 2004
                                    ___________

Before MURPHY, SMITH, and COLLOTON, Circuit Judges.
                           ___________

MURPHY, Circuit Judge.

       Petitioner Chay-Velasquez, a native of Guatemala, seeks political asylum,
withholding of removal, and relief under the Convention Against Torture
(Convention). The Immigration Judge (IJ) denied relief on the grounds that Chay-
Velasquez had committed serious nonpolitical crimes in Guatemala prior to his illegal
entry into the United States and that he was ineligible for relief under the Convention.
The Board of Immigration Appeals (Board) affirmed the IJ's order without opinion.
Chay-Velasquez petitions for review.
       Chay-Velasquez is a young man of Mayan descent. His mother was killed in
September 1980 when he was eight months old, and he was placed in an orphanage
in Guatemala City where he remained until he turned twelve. His father is believed
to be dead. In 1992 he went to live with relatives in the coastal city of San Lucas
Toliman where he attended school. His father's brothers, Felix and Martin Gomez,
had received asylum in the United States in 1989, and they provided financial support
to him. In 1994 he returned to Guatemala City, where he worked as a carpenter's
apprentice and later in a garment factory while attending high school. During this
time he had sporadic contact with his relatives and lived with friends under a bridge.

       In 1995 Chay-Velasquez became active in a student group that participated in
actions against the government. It protested privatization and supported indigenous
rights, but had no name or formal organization. The group never elected officers,
published or distributed leaflets, made demands on the government, or affiliated with
any political party, but it frequently took part in demonstrations. The group marched
in protest, burned buses, and broke windows on government buildings. It also fought
with the police, and Chay-Velasquez made bottle bombs to throw at them. Although
he claims he was followed by security officers for two years, he was never detained
or interrogated by the authorities in Guatemala. His involvement in protest activities
ended in the spring of 1998, and he received his high school diploma in November
1998.

      Chay-Velasquez attempted to enter the United States near Douglas, Arizona on
March 19, 1999. He was apprehended and placed in detention, served with a notice
to appear, and then released to his uncles in St. Paul, Minnesota. At a hearing on
August 4, 1999 he conceded removability, but sought asylum, withholding of
removal, protection under the Convention, or voluntary departure. The record was
closed on December 5, and an individual hearing was held on December 15, 1999 at
which Chay-Velasquez and his uncles testified. The IJ denied the application for
asylum, withholding of removal, and protection under the Convention, but Chay-

                                         -2-
Velasquez was granted voluntary departure. Since the Board affirmed without
opinion, we treat the IJ's decision as the agency's final determination. See
Dominguez v. Ashcroft, 336 F.3d 678, 679 n.1 (8th Cir. 2003).1

       In an oral decision, the IJ found that Chay-Velasquez was generally credible
but failed to establish that he was subject to past persecution. He observed that Chay-
Velasquez had never been arrested, detained, interrogated, or otherwise harmed by
the Guatemalan government. What Chay-Velasquez described as protest actions were
more like riots according to the IJ. The judge also found that Chay-Velasquez's group
had engaged in criminal activity; it had destroyed public property and placed "public
safety at risk when buses were burned and government buildings were attacked."2
Referencing INS v. Aguirre-Aguirre, 526 U.S. 415 (1999), the IJ found that the
criminal nature of Chay-Velasquez's acts outweighed the political because they were
"actions of exceptional destruction and violence." Although protests against high bus
fares and the failure to investigate disappearances touched on important political and
social issues in Guatemala, burning civilian buses was not a direct attack upon
government activities. The IJ found Chay-Velasquez had been involved in acts of
anarchy rather than in genuine political protest. Because he had committed serious
nonpolitical crimes prior to entering the United States, the IJ concluded that Chay-
Velasquez was not eligible for asylum or withholding of removal.



      1
        Chay-Velasquez also claims error in the Board's failure to provide review by
a three member panel and its summary affirmance without opinion. A streamlined
review process for immigration cases is not unconstitutional, see Nyama v. Ashcroft,
357 F.3d 812, 817 (8th Cir. 2004) (citing Loulou v. Ashcroft, 354 F.3d 706, 708-09
(8th Cir. 2003) (no constitutional or statutory right to an administrative appeal)), and
the Board's decision to streamline was not error.
      2
       At his hearing, Chay-Velasquez testified: "The thing is that the strikes were
not done peacefully. They were very brutal, so I would say, come on, let's go, let's
burn buses, and we would burn buses and [pickup] trucks."

                                          -3-
      The IJ concluded that there was insufficient evidence to show that the
Guatemalan government knew of Chay-Velasquez's involvement in protest
demonstrations and that even if it were to prosecute him for his activities, it would
not constitute torture under the Convention. The IJ granted him voluntary departure.

      On his petition for review Chay-Velasquez argues that the IJ erred by failing
to consider all of the evidence, that he did not commit serious nonpolitical crimes,
and that he is eligible for relief under the Convention. In addition he contends that
the IJ abused his discretion by refusing to allow supplemental materials. The
Attorney General counters that there is substantial evidence to support the IJ's finding
that Chay-Velasquez had committed serious nonpolitical crimes prior to entering the
United States. He also argues that Chay-Velasquez waived any claim to relief under
the Convention and that the IJ did not abuse his discretion by refusing to admit Chay-
Velasquez's late filed documentary evidence.

       The IJ's determinations that Chay-Velasquez is ineligible for asylum,
withholding of removal, or relief under the Convention are legal conclusions subject
to de novo review. See Escudero-Corona v. INS, 244 F.3d 608, 613 (8th Cir. 2001).
The IJ's factual determinations are upheld if supported by substantial evidence in the
record. See Hernandez v. Reno, 258 F.3d 806, 812 (8th Cir. 2001). In order to
reverse the IJ's factual findings the evidence must not only support a contrary
conclusion, but compel it. See INS v. Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992).

       To be eligible for a grant of asylum, Chay-Velasquez must demonstrate that he
is a "refugee." 8 U.S.C. § 1158(b)(1) (2003). That is, he must demonstrate that he
is unwilling or unable to return to Guatemala because of past persecution or a well
founded fear of future persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion. See 8 U.S.C. §
1101(a)(42)(A) (2003). A well founded fear is one that is both subjectively genuine



                                          -4-
and objectively reasonable. See Melecio-Saquil v. Ashcroft, 337 F.3d 983, 986 (8th
Cir. 2003) (citing Ghasemimehr v. INS, 7 F.3d 1389, 1390 (8th Cir. 1993)).

       To be eligible for withholding of removal, Chay-Velasquez must show a clear
probability of persecution in Guatemala, on account of race, religion, nationality,
membership in a particular social group, or political opinion. See 8 U.S.C. §
1231(b)(3) (2003). Because a greater degree of certainty must be shown by a
petitioner to qualify for mandatory withholding of removal than for asylum, failure
to carry the burden of proof for asylum necessarily precludes withholding of removal.
See Tawm v. Ashcroft, 2004 WL 769469, at *3 (8th Cir. Apr. 13, 2004) (citing
Habtemicael v. Ashcroft, 360 F.3d 820, 825 (8th Cir. 2004)); Wondmneh v. Ashcroft,
361 F.3d 1096, 1099 (8th Cir. 2004).

       Eligibility for asylum and withholding of removal is precluded if the Attorney
General decides that there "are serious reasons" to believe that Chay-Velasquez
committed "a serious nonpolitical crime" outside the United States before arrival.
See 8 U.S.C. §§ 1158(b)(2)(A)(iii) and 1231(b)(3)(B)(iii) (2003). Deference is due
the Attorney General's determinations of a political nature, for the determination of
what constitutes a serious nonpolitical crime in another country may affect our
relations with that country or its neighbors. Aguirre-Aguirre, 526 U.S. at 425. The
judiciary is not well positioned to take primary responsibility for such decisions. Id.
Chay-Velasquez has the burden of proving by a preponderance of the evidence that
this ground for exclusion is inapplicable. See id. at 432.

       The conditions which must be met for consideration of withholding of removal
under the Convention are identified in 8 C.F.R. §§ 208.16-.18 (2003), and Chay-
Velasquez bears the burden to establish that it is more likely than not that he would
be tortured if removed to Guatemala. See Perinpanathan v. INS, 310 F.3d 594, 599
(8th Cir. 2002). Torture is defined as any act by which severe pain or suffering is
intentionally inflicted for an impermissible purpose with the consent or acquiescence

                                         -5-
of a public official. See 8 C.F.R. § 208.18(a) (2003). Torture does not include pain
or suffering arising from lawful sanctions that do not otherwise defeat the
Convention's purposes.

       Chay-Velasquez challenges the IJ's finding that he committed serious
nonpolitical crimes and is therefore ineligible for both political asylum and
withholding of removal. Chay-Velasquez argues that his protest activities were
political in nature and that what constitutes a serious nonpolitical crime is not
susceptible of rigid definition, citing Aguirre-Aguirre, 526 U.S. at 429. He also
points out that he was a minor when he engaged in the protests and that he did not
engage in attacks on innocent civilians. See id. at 423.

       The evidence in the record supports the IJ's findings that Chay-Velasquez had
endangered the public and committed violent acts out of proportion to any political
aspect of his conduct. See Aguirre-Aguirre, 526 U.S. at 422. This includes evidence
that he was involved in burning buses which served the civilian population, breaking
windows, and fighting with police. The fact that police officers were the target of his
bottle bombs rather than civilians does not convert his acts into political offenses.
See Efe v. Ashcroft, 293 F.3d 899, 905-06 (5th Cir. 2002) (demonstrator's attack and
killing of police officer at a political rally was disproportionate to his political
objectives). Chay-Velasquez did not carry his burden to prove that the serious
nonpolitical crime preclusion should not apply to his case. The IJ's conclusion that
Chay-Velasquez is ineligible for asylum or withholding of removal because of serious
nonpolitical crimes is supported by the law, as well as by substantial evidence in the
record.

       Chay-Velasquez requests relief under the Convention Against Torture. The
government argues that he has waived this claim by not raising it in his opening brief.
See United States v. Brown, 108 F.3d 863, 867 (8th Cir. 1997) (argument first raised
in reply brief is not considered without reason shown for failure to raise earlier).

                                         -6-
Since there was no meaningful argument on this claim in his opening brief, it is
waived. We also note that he would not prevail on this claim based on the evidence
in the record. Although he alleges he was in fear of death and claims that he was
sometimes followed by security personnel, Chay-Velasquez remained in Guatemala
until he graduated from high school in November 1998. There is no clear evidence
that the Guatemalan authorities even knew of Chay-Velasquez's involvement in
criminal activities because he was never detained, interrogated, or arrested. He has
not shown that prosecution and punishment for such actions would amount to torture
under the Convention.

      Chay-Velasquez argues that the IJ abused his discretion in refusing to admit
a supplemental filing to his asylum application. Approximately seven months after
the hearing, Chay-Velasquez offered a "Supplement to Political Asylum Package."
The Attorney General opposed the submission because the proceedings had been
closed and argued that Chay-Velasquez should not be allowed to rehabilitate his
testimony without cross examination. Without citing any authority, Chay-Velasquez
alleges that the IJ's refusal to admit this material was an abuse of process and led to
an outcome based on stale information.

       The IJ's refusal to admit evidence after the deadline and after the proceedings
were closed was consistent with immigration hearing regulations. An IJ may set and
extend time limits for filings, and "[i]f an application or document is not filed within
the time set by the Immigration Judge, the opportunity to file that application or
document shall be deemed waived." 8 C.F.R. § 1003.31(c) (2003). Chay-Velasquez
could have filed a motion to reopen, accompanied by material evidence not
previously available or evidence of changed country conditions, see 8 C.F.R. §§
1003.2 and .23 (2003), but he did not. The IJ's refusal did not prejudice Chay-
Velasquez because his supplemental materials would not have affected the basis for
denying him relief because of the serious nonpolitical crimes he committed prior to



                                          -7-
entering the United States. The IJ's decision not to admit late filed information was
not an abuse of discretion.

      Accordingly, the Board's order is affirmed.
                      ______________________________




                                         -8-
