                                                                        F I L E D
                                                                  United States Court of Appeals
                                                                          Tenth Circuit
                    UNITED STATES COURT OF APPEALS
                                                                          NOV 20 2002
                                TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                              Clerk

 DANIEL PEREZ-RUL,

               Petitioner,
                                                      No. 02-9519
          v.                                     Agency No. A73-970-521
                                                  (Petition for Review)
 IMMIGRATION AND
 NATURALIZATION SERVICE,

               Respondent.


                             ORDER AND JUDGMENT         *




Before SEYMOUR , HENRY , and BRISCOE , Circuit Judges.




      After examining the briefs and appellate record, this panel has determined

unanimously to honor the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is,

therefore, ordered submitted without oral argument.




      *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Daniel Perez-Rul seeks review of an order of the Board of Immigration

Appeals (BIA) dismissing his appeal from the denial of his application for asylum

and withholding of deportation. Exercising jurisdiction under 8 U.S.C. §

1105a(a) (1995), we deny the petition for review.

                                I. BACKGROUND

      Mr. Perez-Rul is a native and citizen of Mexico who seeks review of a final

order of deportation issued by the BIA on February 25, 2002. On April 20, 1989,

Mr. Perez-Rul entered the United States as a visitor. Because he stayed longer

than the six months authorized by his visa, the Immigration and Naturalization

Service (INS) instituted deportation proceedings against him, after which Mr.

Perez-Rul applied for asylum and withholding of deportation.

      On January 10, 1997, an immigration judge (IJ) found petitioner to be

deportable, denied his applications for asylum, withholding of deportation, and

suspension of deportation, and granted him voluntary departure. Mr. Perez-Rul

appealed the IJ’s decision to the BIA, which affirmed the IJ’s decisions and

dismissed the appeal. Mr. Perez-Rul filed a timely petition for review of this

final order of deportation.

      In his brief in support of the petition for review, petitioner maintains the

Board erred (1) when it denied his application for suspension of deportation

under § 244 of the Immigration and Nationality Act (the “Act”), 8 U.S.C. §


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1254(a)(1)(1994) (repealed by Pub. L. No. 104-208 (1996)); and (2) when it

found that Mr. Perez-Rule failed to establish past persecution and a well-founded

fear of political persecution in Mexico.

                                    II. DISCUSSION

       A. Denial of application for suspension of deportation

       Mr. Perez-Rul applied for a suspension of deportation under § 244 of the

Act. Mr. Perez-Rul now contends that the IJ failed to consider the extensive

evidence of the extreme hardship that Mr. Perez-Rul would endure should he be

deported. Mr. Perez-Rul maintains that we review the BIA’s determination for an

abuse of discretion. We disagree.

       The Illegal Immigration Reform and Immigrant Responsibility Act of 1996,

Pub. L. No. 104-208 (1996) (IIRIRA) “altered the availability, scope, and nature

of judicial review in INS cases.”    Rivera-Jimenez v. INS , 214 F.3d 1213, 1215 n.1

(10th Cir. 2000). Because Mr. Perez-Rul’s deportation proceedings began before

April 1, 1997, and the BIA’s decision was entered more than thirty days after

IIRIRA’s enactment date of September 30, 1996, IIRIRA’s transitional rules

apply. See IIRIRA § 309(c)(4);      Berehe v. INS , 114 F.3d 159, 161 (10th Cir.

1997). The transitional rules provide that “there shall be no appeal of any

discretionary decision under section 212(c), 212(h), 212(i), 244 or 245 of the




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Immigration and Nationality Act (as in effect as of the date of the enactment of

this Act).” IIRIRA § 309(c)(4)(E).

       The BIA upheld the IJ’s denial of petitioner’s application for suspension of

deportation on the ground that petitioner failed to show he would suffer extreme

hardship if he returned to Mexico. “[A] determination by the BIA that one

seeking suspension of a deportation order has not shown extreme hardship is a

discretionary decision.”    Escalera v. INS , 222 F.3d 753, 755 (10th Cir. 2000)

(internal quotation marks omitted) (dismissing petition for review for lack of

jurisdiction). Therefore, we have no jurisdiction to review the BIA’s denial of

suspension of deportation under § 244.

       B. Denial of asylum

       In seeking asylum, Mr. Perez-Rul maintains that he has demonstrated past

persecution and a well-founded fear of persecution by the Mexican government

should he return there. To be granted asylum, an asylum applicant must first

prove “statutory eligibility by establishing refugee status.”   Woldemeskel v. INS ,

257 F.3d 1185, 1188 (10th Cir. 2001). The applicant can demonstrate eligibility

by establishing “either 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,” as manifested by an infliction of suffering or

harm which is regarded as offensive and involves “more than just restrictions or



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threats to life and liberty.”   Id. (internal brackets, quotation marks, and citations

omitted).

       Our “[a]nalysis of a claim specifically based on a well-founded fear of

future persecution includes both a subjective and an objective component.”        Id.

       The applicant must first prove an objective basis by credible, direct,
       and specific evidence in the record, of facts that would support a
       reasonable fear that the petitioner faces persecution. If an objective
       basis exists, the applicant must show her subjective fear is genuine.

Id. at 1188-89 (quotations and citation omitted).

       We apply a substantial evidence standard to the BIA’s resolution of
       the first step of an asylum claim. . . . The BIA’s determination that
       the applicant is not eligible for asylum must be upheld if supported
       by reasonable, substantial, and probative evidence on the record
       considered as a whole. It can be reversed only if the evidence
       presented . . . was such that a reasonable factfinder would have to
       conclude that the requisite fear of persecution existed. We will not,
       therefore, weigh the evidence or . . . evaluate the witnesses’
       credibility.

Id. at 1189 (quotations and citations omitted).

       The BIA weighed the IJ’s evaluation of Mr. Perez-Rul’s allegations. Mr.

Perez-Rul, a member of the National Action Party, had received threats from

members of the majority part in Mexico, the Revolutionary Institutional Party

(PRI). During a demonstration with about 300 people in June 1988, he had been

involved in physical confrontation that required medical treatment. Later in 1988,

he received other threats and was “pushed” around by PRI members and told that




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“he should leave” while walking down the street. Rec. at 84 (Oral Decision of the

Immigration judge, dated Jan. 10, 1997). He later came to the United States.

      The IJ found Mr. Perez-Rul credible and determined

      that a physical confrontation during a demonstration where a person
      is injured is not persecution, nor are the numerous threats he received
      considered persecution. . . . There’s no suggestion that he was ever
      jailed or otherwise abused by the government officials. This simply
      is not political persecution.

Id. at 85. The IJ also noted that Mr. Perez-Rul was not a party leader and he was

never jailed. The IJ rejected Mr. Perez-Rul’s claims of a well-founded fear of

persecution. After reviewing the record in this case, we conclude that substantial

evidence supports the BIA’s rejection of Mr. Perez-Rul’s claim.    See

Woldemeskel , 257 F.3d at 1190 (rejecting claim of well-founded fear of

persecution based upon imprisonment that occurred several years earlier and

which was followed by several years that were “free from harassment or

discrimination”); INS v. Elias-Zacarias , 502 U.S. 478, 481-84 (1992) (holding

that evidence of a guerrilla organization’s attempt to conscript a person into its

military forces did not necessarily constitute persecution on account of political

opinion); cf. Sotelo-Aquije v. Slattery , 17 F.3d 33, 36-37 (2d Cir. 1994) (holding

that the petitioner had demonstrated political persecution by showing that a

guerrilla organization threatened the petitioner on account of his active,

ideological opposition).



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      C. Withholding of deportation

      Because Mr. Perez-Rul cannot establish that he is entitled to asylum, he

cannot satisfy the more stringent standard required for withholding of deportation.

See Woldemeskel , 257 F.3d at 1193 (“The burden of proof for withholding of

deportation is, however, significantly higher than that for asylum.”).

                                III. CONCLUSION

      For the reasons stated above, we DISMISS Mr. Perez-Rul’s application for

suspension of deportation for lack of jurisdiction and we DENY his petition for

review.

                                               Entered for the Court,


                                               Robert H. Henry
                                               Circuit Judge




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