M. Aguilar-Ramos v. John D. Ashcroft , 183 F. App'x 591 ( 2006 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 05-1232
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Maximiliano Horacio Aguilar-Ramos, *
*
Petitioner, *
*
v. * Petition for Review
* of an Order of the
1
Alberto Gonzales, Attorney General * Board of Immigration Appeals.
of the United States, *
* [UNPUBLISHED]
Respondent. *
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Submitted: June 2, 2006
Filed: June 7, 2006
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Before RILEY, MAGILL, and GRUENDER, Circuit Judges.
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PER CURIAM.
Maximiliano Aguilar-Ramos (Aguilar-Ramos) petitions for review of an order
of the Board of Immigration Appeals (BIA) affirming an Immigration Judge’s (IJ’s)
denial of Aguilar-Ramos’s application for asylum and withholding of removal. For
reversal, Aguilar-Ramos argues the BIA erred by adopting the IJ’s findings because
he was kidnapped by guerillas in Guatemala and held against his will for two weeks,
1
Alberto Gonzales has been appointed to serve as Attorney General of the
United States, and is substituted as respondent pursuant to Federal Rule of Appellate
Procedure 43(c).
which constituted psychological harassment and regardless of the guerillas’ intentions,
the totality of the circumstances show Aguilar-Ramos was persecuted on account of
his imputed “anti-guerilla” political opinion. Aguilar-Ramos claims he also has a
reasonable fear of future persecution because the guerillas may kidnap him again or
harm him for escaping. Finally, Aguilar-Ramos newly asserts an ineffective
assistance of counsel claim. For the reasons discussed below, we deny the petition.
We review for substantial evidence. See Menendez-Donis v. Ashcroft, 360
F.3d 915, 919 (8th Cir. 2004). We conclude a reasonable factfinder could have found
Aguilar-Ramos was not a victim of past persecution, because there was no evidence
Aguilar-Ramos was kidnapped by the guerillas for any reason other than recruitment.
See INS v. Elias-Zacarias, 502 U.S. 478, 479-80, 482-84 (1992) (holding forced
recruitment by guerrilla organization does not necessarily equate with persecution on
account of political opinion).
We also conclude a reasonable factfinder could have found Aguilar-Ramos
lacks a well-founded fear of future persecution. The Country Report for Guatemala
indicates that, since Aguilar-Ramos’s departure, the government and the guerrillas
have signed peace accords and there is no evidence of continued recruitment by the
guerrillas. See Gomez v. Gonzales, 425 F.3d 543, 546-47 (8th Cir. 2005) (affirming
finding of no well-founded fear of persecution because of, inter alia, improved
country conditions in Guatemala); Melecio-Saquil v. Ashcroft, 337 F.3d 983, 987 (8th
Cir. 2003) (“dramatic changes in Guatemala after the 1996 peace accords prevent[]
dated events from translating into an objectively reasonable fear of persecution”).
Aguilar-Ramos’s request for withholding of removal necessarily fails as well,
see Turay v. Ashcroft, 405 F.3d 663, 667 (8th Cir. 2005) (withholding of removal
standard is more rigorous than asylum standard), and Aguilar-Ramos’s newly asserted
ineffective assistance claim is not reviewable, see Etchu-Njang v. Gonzales, 403 F.3d
577, 583-84 (8th Cir. 2005) (“[A]n alien must present a claim of ineffective assistance
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to the BIA, either on direct administrative appeal or in a motion to reopen, before he
may obtain judicial review of the claim.”).
Accordingly, we deny the petition. Aguilar-Ramos moved for a stay of removal
before his voluntary departure period expired, and we therefore deem this court’s
grant of his unopposed motion to include a stay of the voluntary departure period as
well. See Rife v. Ashcroft, 374 F.3d 606, 616 (8th Cir. 2004).
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