                  Not for Publication in West's Federal Reporter
                 Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

             United States Court of Appeals
                          For the First Circuit

No. 04-2229

               ELIDIO MARIO DE LEON; INGRID K. DE LEON,
                             Petitioners,

                                        v.

   ALBERTO R. GONZALES, ATTORNEY GENERAL OF THE UNITED STATES,
                           Respondent.


                  PETITION FOR REVIEW OF AN ORDER OF
                    THE BOARD OF IMMIGRATION APPEALS


                                     Before

                          Boudin, Chief Judge,
                     Siler,* Senior Circuit Judge,
                      and Saris,** District Judge.


     Illana Etkin Greenstein, with whom Harvey Kaplan, Maureen
O’Sullivan, and Jeremiah Friedman, Kaplan, O’Sullivan & Friedman,
were on brief for petitioners.

     Peter D. Keisler, Assistant Attorney General, Civil Division,
with whom Terri J. Scadron, Assistant Director, Office of
Immigration Litigation, and Anthony W. Norwood, Counsel to the
Assistant Attorney General, were on brief for respondent.


                              November 3, 2005



     *
      Of the      Sixth    Circuit       Court     of    Appeals,     sitting   by
designation.
     **
         Of the District of Massachusetts, sitting by designation.
     SILER, Senior Circuit Judge.           Petitioners Elidio De Leon (“De

Leon”) and his wife, Ingrid De Leon, seek review of a final order

of the Board of Immigration Appeals (“BIA”) which affirmed, without

opinion,   the   immigration    judge’s      (“IJ”)   denial   of   De    Leon’s

applications for asylum, withholding of removal, and protection

under the United Nations Convention Against Torture (“CAT”).1                 We

AFFIRM.

                               I.   BACKGROUND

     De Leon filed his first asylum application in 1991 and a

second one in 1994. Although De Leon acknowledged that the account

in his 1991 application was different from his testimony before the

IJ, he did not explain why the stories were different.2                  In June

2000, the Immigration and Naturalization Service’s3 (“INS”) asylum

office contacted De Leon for an interview in connection with his

1994 asylum application.       During the interview, De Leon recounted

that he was drafted into the Guatemalan army in 1989 and trained to

fight and kill guerillas.           In his 1994 application, De Leon

declared that he was drafted before he turned sixteen years old

     1
     Ingrid De Leon is a derivative asylum applicant based on the
claim of her husband. See 8 U.S.C. § 1158(b)(3)(A) (2000).
     2
     De Leon’s 1991 asylum application was apparently lost. Its
presence or absence is irrelevant, however, because De Leon
conceded that its contents differed from his testimony.
     3
     In March 2003, “the relevant functions of the Immigration and
Naturalization Service [] were reorganized and transferred into the
new Department of Homeland Security.” Romilus v. Ashcroft, 385
F.3d 1, 2 n.1 (1st Cir. 2004).

                                      -2-
and, while following his superiors’ orders, “persecute[d] and

attack[ed] guerilla strongholds.           And in combat [he] might of

killed people but [he] was following orders.”         Upon his discharge,

De Leon claimed that the residents of his hometown threatened,

beat, and tortured him and his whole family.

       De Leon stated that he deserted the army in 1990 after he was

given a twelve-hour pass to visit his mother.               De Leon fled

Guatemala, but the interviewer noted that “[s]ince [De Leon’s]

departure [he] has kept in touch with his mother and other family

members, none of whom have ever been harmed or threatened by

anyone.” Conversely, the 1994 application related that De Leon was

given twenty-four hours to leave Guatemala.

       In June 2000, the INS commenced removal proceedings against De

Leon.   See 8 U.S.C. § 1182(a)(6)(A)(i) (2000).        In the proceedings

before the IJ, De Leon renewed his application for asylum and

applied for withholding of removal and CAT protection.            De Leon

testified that, rather than being drafted, the army kidnapped him

when he was sixteen years old.       Once in the army, De Leon claimed

he was beaten daily, fed once per day, and a sergeant raped him at

gunpoint.      Thereafter, De Leon and other recruits were sent on a

mission to kidnap guerilla sympathizers. De Leon wanted no part in

the plot, so he fled into the jungle.          He returned to Guatemala

City    and,    with   assistance   from   a   paid   smuggler,   went   to

Massachusetts to live with his brother.


                                     -3-
       The IJ found De Leon removable and denied his applications.

The IJ observed that De Leon gave “several different stories as to

what happened to him during his time in Guatemala and the reasons

why he is or claims to be fearful of returning [there],” his

testimony and his 1994 application were “entirely different,” and

his testimony “was inconsistent in many ways with [his] written

affidavit, which he offered in support of his application.”             Thus,

De Leon failed to meet his burden of proof regarding either past

persecution or a well-founded fear of future persecution. Since De

Leon’s asylum application was denied, he necessarily could not meet

the more demanding withholding of removal hurdle or his CAT burden.

       The BIA affirmed the IJ’s decision without opinion.              See 8

C.F.R. § 1003.1(e)(4). This appeal followed. We have jurisdiction

pursuant to 8 U.S.C. § 1252(a)(1) and 28 U.S.C. § 158.

                              II.     DISCUSSION

       Because the BIA summarily affirmed the IJ’s opinion, we review

the IJ’s decision as the final order.          See Galicia v. Ashcroft, 396

F.3d 446, 447 (1st Cir. 2005) (citing Albathani v. INS, 318 F.3d

365,   373   (1st   Cir.   2003)).      The   IJ’s   findings   of   fact   and

conclusions of law are treated as if they were made by the BIA.

See Keo v. Ashcroft, 341 F.3d 57, 60 (1st Cir. 2003).                The IJ’s

decision     must   be   “supported    by    reasonable,   substantial,     and

probative evidence on the record considered as a whole.”             See Keo,

341 F.3d at 60.     “This standard of review is quite deferential[,]”


                                       -4-
Guzman v. INS, 327 F.3d 11, 15 (1st Cir. 2003), and “the IJ’s

determination must stand unless we ‘find that the evidence not only

supports [De Leon’s] conclusion, but compels it.’”                Keo, 341 F.3d

at 60 (citations omitted).

       De Leon argues that the IJ erred in denying his applications

for asylum and withholding of removal.                See 8 C.F.R. § 1208.3(b).

“As a prerequisite to establishing eligibility for asylum, [De

Leon] must establish that he is a refugee, as set forth in . . . 8

U.S.C. § 1158(b).”        Samayoa Cabrera v. Ashcroft, 367 F.3d 10, 13

(1st    Cir.    2004).     To    qualify    as    a    refugee,   De   Leon   must

“demonstrat[e] a well-founded fear of future persecution on the

basis    of    one   of   five   statutory       factors:      race,     religion,

nationality, membership in a particular social group, or political

opinion.”      Keo, 341 F.3d at 60.    De Leon must prove that his “fear

is both genuine and objectively reasonable” to satisfy this burden.

See id.       His “well-founded fear of future persecution” has both

subjective and objective components.               Aguilar-Solis v. INS, 168

F.3d 565, 572 (1st Cir. 1999).        As for the objective prong, De Leon

“must prove that ‘a reasonable person . . . would fear persecution

on account of’” one of the enumerated factors.                     See Diab v.

Ashcroft, 397 F.3d 35, 41 (1st Cir. 2005) (citation omitted).                  As

for the subjective prong, De Leon must prove that his fear is

genuine – “[a] crucial aspect in determining whether an applicant

has a genuine fear is the applicant’s credibility.”                Id.


                                      -5-
       De Leon contends that he suffered past persecution and has a

well-founded fear of future persecution on account of his actual or

imputed political opinion and his membership in a particular social

group.     Regarding the former, De Leon fears that the army will

persecute him if he returns to Guatemala because he is a deserter.

Regarding the latter, De Leon claims he is included in a group of

children who have been forcibly recruited into the army.

       We refuse to disturb the IJ’s credibility findings because De

Leon has neither established past persecution nor a well-founded

fear of future persecution.          When a hearing officer who sees and

hears a witness “makes an adverse credibility determination and

supports it with specific findings, an appellate court ordinarily

should accord it significant respect.”            Aguilar-Solis, 168 F.3d at

570.     The IJ found that his credibility was so impaired that he

failed to demonstrate any past persecution and he “lacked the

specificity required to establish the requisite nexus between the

[Guatemalan army’s] alleged acts and one of the five statutorily

protected grounds.”       Id.   His accounts of persecution cannot be

reconciled.    The IJ found that De Leon’s 1994 version of events

differed    from   his   testimony    and    he   failed   to   explain   these

discrepancies.     He gave markedly conflicting accounts as to how he

entered the army and fled Guatemala.                Although he originally

claimed he was drafted, “might of killed people,” and upon his

discharge the townspeople threatened, beat, and tortured him and


                                       -6-
his family, he later claimed that he was kidnapped by the army,

tortured, raped, forced to take part in a kidnap mission, and

escaped     from     his    captors.        Further    complicating         De    Leon’s

renditions is his account to the asylum officer that he fled

Guatemala after receiving a twelve-hour pass to visit his mother.

      De    Leon’s    lack       of   credibility   doomed    any       claim    of   past

persecution.       See Laurent v. Ashcroft, 359 F.3d 59, 64 (1st Cir.

2004).     Nor has he made a case for a well-founded fear of future

persecution,       since     renditions     of   his   past   persecution         varied

substantially.       See Diab, 397 F.3d at 41-42.4

      Further, De Leon must “establish that he was persecuted on one

of the five statutory grounds.”              See Samayoa Cabrera, 367 F.3d at

13.       Although De Leon insists that he will be subjected to

persecution     upon       his    return   to    Guatemala    as    a    member       of   a

particular social group, he can neither prove nor establish that he

“belonged to or was affiliated with any organized social group[]”

or that “young men in general have reason to fear persecution in

Guatemala.” See Rodriguez-Ramirez, 398 F.3d 120, 125 n.3 (1st Cir.



      4
     This court recently observed that “the political situation in
Guatemala has changed dramatically” in recent years.           See
Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 126 (1st Cir. 2005).
“Peace accords were signed in 1996 between the Guatemalan
government and the insurgent forces, who had rallied collectively
under the banner of the Guatemalan National Revolutionary Unity
(GNRU). These accords put an end to the country’s civil war.” Id.
Since De Leon left Guatemala in 1990, the civil war is long over
and he should have no fear of persecution upon his return. See
Guzman, 327 F.3d at 16.

                                           -7-
2005).     We likewise reject De Leon’s claim that he will be

persecuted for his desertion from the army because of the IJ’s

adverse credibility finding.

     Because    De   Leon’s    evidence      does   not     compel   a     different

conclusion,    we    affirm   the   denial    of    his     asylum   application.

Further,   “[b]ecause    [De   Leon]    is    unable       to   satisfy    the   less

stringent standard for asylum, [he] is a fortiori unable to satisfy

the test for withholding of deportation.”              Toure v. Ashcroft, 400

F.3d 44, 49 (1st Cir. 2005) (per curiam) (citing Albathani, 318

F.3d at 374).

     Additionally, substantial evidence supports the IJ’s finding

that De Leon failed to meet his CAT burden.                     The IJ’s adverse

credibility     determination,      which     De    Leon    failed    to    refute,

undermines his CAT claim; therefore, this claim fails. See Sharari

v. Gonzales, 407 F.3d 467, 475-76 (1st Cir. 2005).                        De Leon’s

failure to admit any torture until his testimony before the IJ

invalidates and casts serious doubts upon his prior applications.

Also, improved conditions in Guatemala negate any likelihood of

torture upon De Leon’s return.            See id.; Rodriguez-Ramirez, 398

F.3d at 125.

     We AFFIRM the decision of the BIA.




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