                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        OCT 6 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

OSCAR EDUARDO ALONZO CAYAX;                     No.    12-71293
LEONEL EDUARDO ALONZO ZUNIGA,
                                                Agency Nos.       A070-916-087
                Petitioners,                                      A096-152-782
                                                                  A096-152-781
 v.                                                               A095-309-761

JEFFERSON B. SESSIONS III, Attorney
General,                                        MEMORANDUM*

                Respondent.

                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                    Argued and Submitted September 14, 2017
                            San Francisco, California

Before: SILER,** TALLMAN, and BEA, Circuit Judges.

      Petitioner Alonzo Cayax, a native and citizen of Guatemala, petitions for

review of the Board of Immigration Appeals’ (“BIA”) denial of his applications for

asylum, withholding of removal, and protection under Article III of the Convention



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Eugene E. Siler, United States Circuit Judge for the
Sixth Circuit, sitting by designation.
Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252(a), and

deny the petition.

      The Immigration Judge (“IJ”) denied Petitioner’s applications. The IJ found

Petitioner was credible, but that the single instance of harm in the record—which

occurred in 1978, because of his role in the anti-government Partido Guatemalteco

de los Trabajadores (“PGT”)—did not rise to the level of past persecution. Neither

had Petitioner shown a well-founded fear of future persecution or likelihood of

torture upon removal.

      On appeal, the BIA assumed the 1978 incident rose to the level of past

persecution, raising a rebuttable presumption of a well-founded fear of future

persecution. See Gonzalez-Hernandez v. Ashcroft, 336 F.3d 995, 997 (9th Cir.

2003) (citing 8 C.F.R. § 208.13(b)(1)(i)). The BIA determined that the

government had rebutted this presumption by showing a fundamental change of

circumstances in Guatemala, see id., and dismissed Petitioner’s appeal. Substantial

evidence supports the BIA’s decision. See id. at 998 (“The BIA’s decision [that

Petitioner does not qualify for asylum] need only be supported by substantial

evidence.”).

      The BIA relied on the following evidence of changed country conditions:

(1) U.S. Department of State reports on the conditions in Guatemala since the

Guatemalan civil war ended in 1996; (2) Petitioner’s testimony that “he does not


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even know whether the [PGT] still exists;” and (3) Petitioner’s several safe return

trips to Guatemala after 1978. Petitioner argues this evidence is insufficient to

rebut the presumption of a well-founded fear of persecution because the reports are

“inconclusive with respect to petitioner’s specific circumstances.” We disagree.

      Based on the evidence before it, the BIA reasonably concluded that

individuals in Petitioner’s situation are no longer persecuted based on their past

political activism during the Guatemalan civil war. See id. at 1000 (“[W]here the

BIA rationally construes an ambiguous or somewhat contradictory country report

and provides an ‘individualized analysis of how changed conditions will affect the

specific petitioner’s situation,’ substantial evidence will support the agency

determination.” (citation omitted)). This Court may not second-guess the BIA’s

interpretation of the country reports and how they will affect Petitioner’s situation.

See id. (“[T]he agency, not a court of appeals, must construe the country report and

determine if country conditions have changed such that the applicant no longer has

a well-founded fear of persecution.”). The expert declaration Petitioner offered

does not compel a different conclusion on this record.

      Petitioner also claims the BIA impermissibly shifted the burden to Petitioner

to show he had a well-founded fear of persecution. But because the BIA properly

concluded the government had met its burden, this argument is without merit. See

Sowe v. Mukasey, 538 F.3d 1281, 1286 (9th Cir. 2008) (dismissing same argument


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because “[t]he BIA did not require [Petitioner] to prove that country conditions had

not changed[,]” but rather determined “the government had succeeded in rebutting

any showing of persecution”).

      Neither did the BIA err in rejecting Petitioner’s independent basis for

asylum—fear of future persecution based on his union activities in California. As

the BIA observed, there was no specific evidence that individuals involved in

unions in the United States are targeted in Guatemala, or that Petitioner would

become involved in union or political activities upon his return to Guatemala. The

BIA thus properly concluded that Petitioner had not shown his fear was objectively

reasonable. Duarte de Guinac v. INS, 179 F.3d 1156, 1159 (9th Cir. 1999) (“An

alien’s well-founded fear of persecution must be both subjectively genuine and

objectively reasonable.” (citation omitted)).

      Because the BIA’s asylum decision is supported by substantial evidence,

Petitioner’s withholding of removal claim necessarily fails. See Sowe, 538 F.3d at

1288 (“When the government rebuts an applicant’s well-founded fear of future

persecution, it defeats the applicant’s asylum claim, and his or her claim for

withholding of removal” (citation omitted)). Substantial evidence also supports the

BIA’s determination that Petitioner is ineligible for CAT protection, as Petitioner

did not establish “it is more likely than not” he would be tortured by or with the

consent of the government if returned to Guatemala. See 8 C.F.R. § 1208.16(c)(2);


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see also Wakkary v. Holder, 558 F.3d 1049, 1067–68 (9th Cir. 2009) (petitioner

must demonstrate “it is ‘more likely than not’ that a government official or person

acting in an official capacity would torture him or aid or acquiesce in his torture by

others” (citations omitted)).

      PETITION DENIED.




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