Not for Publication in West's Federal Reporter Citation Limited Pursuant to 1st Cir. Loc.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. 01-2323

MARCO G. ROBLES,

Petitioner,

v.

IMMIGRATION AND NATURALIZATION SERVICE,

Respondent.

ON PETITION FOR REVIEW OF AN ORDER OF THE

BOARD OF IMMIGRATION APPEALS

Before

Torruella, Circuit Judge,

Cyr and Stahl, Senior Circuit Judges.

William E. Graves, Jr., with whom Kerry E. Doyle and Graves & Doyle, were on brief, for petitioner. Brenda M. O'Malley, Attorney, Office of Immigration Litigation, Civil Division, with whom Robert D. McCallum, Jr., Assistant Attorney General, and Terri J. Scadron, Senior Litigation Counsel, were on brief, for respondent.

December 31, 2002 Per Curiam. Marco Robles appeals from the Board of

Immigration Appeals's ("BIA") denial of his petitions for asylum

and withholding of removal. He also challenges the BIA's

determination that he was not denied due process of law at his

immigration hearing. We affirm.

I. Background Facts

Robles is a Guatemalan of Mayan Indian descent. In

September 1989, his uncle, who was the mayor of his small town, and

his three cousins were killed and their bodies were mutilated by

unknown assailants. Robles had worked closely with them on an

agricultural education project, which was not opposed by the

government. Robles is unsure if the killings were because of his

uncle's position as mayor, or if his relatives were targeted

because of their agricultural teachings.

Shortly after the murders, Robles was approached at a

public gathering and told, "You are next." Approximately eighteen

months after the murders, Robles moved to Guatemala City, where he

lived for six months. He entered the United States on foot,

without inspection, in January 1992. Robles claimed that he fled

Guatemala because he was "just trying to preserve [his] life."

Robles filed for asylum in January 1996. At an Order to

Show Cause hearing in front of an Immigration Judge ("IJ"), Robles

was represented by Elizabeth Skelton, a Canadian attorney not

admitted to practice in the United States and not familiar with

-2- immigration law. At his hearing, Robles testified that he felt

fear and insecurity in his homeland, that no one has been

apprehended for the murders of his relatives, and that his family

believes that he will not be safe if he returns. The IJ found

Robles's testimony internally consistent and credible but concluded

that he was not eligible for asylum. The IJ therefore concluded

that Robles was deportable as charged, and later denied Robles's

application for asylum and withholding relief. The BIA adopted the

IJ's decision and dismissed Robles's appeal; it also rejected

Robles's claim that his due process rights were violated by the

presence of an unaccredited representative at his hearing. This

petition for review followed.

II. Standard of Review

The decision of the BIA denying Robles asylum is subject

to a deferential standard of review.

The BIA's determination that [petitioner] was 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 by [petitioner] was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed.

INS v. Elías-Zacarías,

(1992) (citations

omitted).

Robles's claim that the immigration judge violated his

due process rights by allowing his friend to represent him is

-3- reviewed de novo. See Morales v. INS,

(1st Cir.

2000).

III. Discussion

After a review of the record, we determine that the BIA

had substantial evidence to deny Robles's claim for political

asylum. An applicant for asylum must demonstrate that he is

statutorily eligible for relief, and that he warrants it as a

matter of discretion. An alien is eligible for asylum if he can

show that he either has suffered past persecution or has a well-

founded fear of future persecution on account of race, religion,

nationality, membership in a particular social group, or political

opinion. Elías-Zacarías,

. To qualify as

persecution, a person's experience must rise above unpleasantness,

harassment, and even basic suffering. Nelson v. INS,

,

263 (1st Cir. 2000).

Robles experienced tragic events in Guatemala: four of

his relatives were murdered and he was subjected to a vague threat.

However, the BIA was reasonable in finding that this is

insufficient evidence of past or future persecution to warrant

asylum.1 Robles is unsure of the identity or motivation of those

who killed his relatives and threatened him. He cannot show that

1 Since Robles is unable to meet the standard for asylum, he is also unable to meet the standard for withholding of deportation, which requires a higher showing. Velásquez v. Ashcroft,

, 64 n.2 (1st Cir. 2002).

-4- they were targeted on account of their membership in a statutorily

protected group. See

(a)(42)(A). Even after being

threatened, Robles continued to live in Guatemala without incident,

spending nearly a year in the small town he grew up in and six

months in Guatemala City. Cf. Velásquez,

(noting

that petitioners' continued residence in Guatemala following the

killing of their family members and a threat against them supported

the BIA’s finding that petitioners were not targeted on any

individual basis). Robles’s immediate family continues to reside

peacefully in his hometown, and his father continues to work in

agriculture. Cf.

("'The fact that close relatives continue to

live peacefully in the alien's homeland undercuts the alien's claim

that persecution awaits his return.'") (quoting Aguilar-Solís v.

INS,

(1st Cir. 1999)). There was no evidence

presented that Robles's life would be in danger if he returned.

Finally, documentary evidence shows that a peace accord was signed

in 1996, ending a thirty-six year civil war between guerilla groups

and the government, and that the overall human rights situation in

Guatemala has improved since Robles's departure.

We also hold that Robles was not denied due process at

his immigration hearing. He was afforded the opportunity to

present his case and testified on his own behalf. Skelton

conducted a detailed direct examination. Skelton also invited

Robles to describe his decision to leave Guatemala and the current

-5- situation in that country. After the testimony, Skelton directed

the IJ's attention to documentary evidence which she believed

supported Robles's asylum claim. Robles was then cross-examined,

and the IJ asked him questions. Robles testified through an

interpreter and was permitted to answer all questions without

comment or interruption. If Robles failed to present detailed

evidence at his immigration hearing, it was not because he was not

given sufficient opportunity. Robles has also failed to show how

his case would have been decided differently if someone other than

Skelton had represented him at the hearing. See Michelson v. INS,

(10th Cir. 1990). He has not proffered any

additional testimonial or documentary evidence that would have been

presented to the IJ had Skelton not participated in the hearing.

For the reasons stated above, the decision of the Board

of Immigration Appeals is affirmed.

-6-