Blanco de Belbruno v. Ashcroft

PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

MARIA ISABEL BLANCO DE BELBRUNO; 

JUAN BELBRUNO; MARIA BELEM

BELBRUNO-BLANCO; JUAN FRANCISCO

BELBRUNO-BLANCO; JUAN FERNANDO

BELBRUNO-BLANCO; MARIA ISABEL

BELBRUNO-BLANCO,

Petitioners,  No. 02-2142

v.

JOHN D. ASHCROFT, Attorney

General,

Respondent.



On Petition for Review of an Order

of the Board of Immigration Appeals.

(A72-377-912; A72-377-913; A72-377-914; A72-377-915;

A72-377-916; A22-366-772)

Argued: January 20, 2004

Decided: March 29, 2004

Before WILKINSON, GREGORY, and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge Wilkinson wrote the opinion,

in which Judge Gregory and Judge Shedd joined.

COUNSEL

ARGUED: Ivan Yacub, Falls Church, Virginia, for Petitioners. Carol

Federighi, Civil Division, Office of Immigration Litigation, UNITED

2 BELBRUNO v. ASHCROFT

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for

Respondent. ON BRIEF: Robert D. McCallum, Jr., Assistant Attor-

ney General, Terri J. Scadron, Assistant Director, Genevieve Holm,

Attorney, Civil Division, Office of Immigration Litigation, UNITED

STATES DEPARTMENT OF JUSTICE, Washington, D.C., for

Respondent.

OPINION

WILKINSON, Circuit Judge:

Maria Isabel Blanco de Belbruno ("Belbruno"), a native and citizen

of Guatemala, petitions for review of an order of the Board of Immi-

gration Appeals ("BIA") that denied her application for asylum and

for withholding of removal, as well as her five family members’

derivative claims. Belbruno argues that the summary affirmance of

the Immigration Judge’s decision by a single member of the BIA vio-

lated her due process rights. She questions whether the Attorney Gen-

eral possessed the authority to issue the streamlining regulations that

created these summary procedures and claims that the application of

these regulations to her case had constitutionally impermissible retro-

active effects. She also asserts that the BIA erred in finding that she

had failed to demonstrate past persecution or a well-founded fear of

future persecution. We reject each of Belbruno’s various claims and

affirm the judgment of the BIA.

I.

Maria Belbruno, her husband, Juan Belbruno, and their four chil-

dren, Maria Belem Belbruno-Blanco ("Maria Belem"), Juan Francisco

Belbruno-Blanco ("Juan Francisco"), Juan Fernando Belbruno-Blanco

("Juan Fernando"), and Maria Isabel Belbruno-Blanco ("Maria Isa-

bel") entered the United States from Guatemala during December

1990. Maria Belbruno and the four children are natives and citizens

of Guatemala. Juan Belbruno is a native and citizen of Argentina. The

family initially entered legally on non-immigrant visas, but over-

stayed their visas by approximately eighteen months before Juan Bel-

BELBRUNO v. ASHCROFT 3

bruno filed an application for political asylum with the Immigration

and Naturalization Service ("INS") on December 23, 1992.1

On June 29, 1998, the INS charged the Belbrunos with removabil-

ity for remaining longer than permitted after admission as non-

immigrant visitors in violation of the Immigration and Nationality Act

("INA"). See INA § 237(a)(1)(B) (codified at 8 U.S.C.

§ 1227(a)(1)(B) (2000)). On November 30, 1998, the INS also

charged Maria Belbruno and Maria Belem with removability as immi-

grants not in possession of valid entry documents at the time of their

application for admission, because they had returned to Guatemala in

March 1998 and subsequently reentered the United States without

valid visas. See INA § 212(a)(7)(A)(i)(I) (codified at 8 U.S.C.

§ 1182(a)(7)(A)(i)(I) (2000)).

All six members of the Belbruno family conceded that they were

removable as charged. After Juan Belbruno withdrew his application

for asylum, Maria Belbruno filed for political asylum in her own

name, and the claims of Juan Belbruno and their four children became

derivative to her application. See 8 U.S.C. § 1158(b)(3) (2000); 8

C.F.R. § 1208.21(a) (2002).

In her application, Maria Belbruno stated that she was seeking asy-

lum on behalf of her family due to numerous threats that they had

received "from the guerrilla[s] and the government" because of her

husband’s participation in a human rights advocacy group. Juan Bel-

1

The Homeland Security Act of 2003, Pub. L. No. 107-296, 116 Stat.

2135 (Nov. 25, 2002), modified the Immigration and Nationality Act.

This act formally abolished the INS on March 1, 2003 and distributed its

responsibilities among successor agencies. The Bureau of Citizenship

and Immigration Services of the Homeland Security Department became

responsible for addressing asylum claims, and the Executive Office of

Immigration Review of the Justice Department continues to oversee the

Board of Immigration Appeals. These changes do not affect this case

which was adjudicated before this reorganization. For purposes of sim-

plicity, we will refer to the INS or the agency rather than its successor

institutions. Additionally, unless otherwise noted, we will refer to the

statutes and administrative regulations in place at the time of the BIA’s

decision.

4 BELBRUNO v. ASHCROFT

bruno testified at their asylum hearing that he had joined a group cal-

led "Pro Human Rights" in 1980 and explained that it "was against

the government, the army and the guerillas." He claimed that he had

provided the group financial support and participated in its activities

by distributing flyers, attending meetings, and organizing rallies. He

testified that he belonged to the group from 1980 until December 20,

1990, and explained that his family began to experience problems as

a result of his participation in late 1989. He claimed that the family

received seven or eight threatening phone calls. One of the Bel-

brunos’ children, Juan Francisco, testified that he answered the phone

on one occasion and a man’s voice said, "[w]e’re going to kill some-

one from your family."

Additionally, on December 10, 1990, unknown gunmen assertedly

fired shots at the Belbruno’s home at 2 A.M. in the morning. Juan

Belbruno testified that he did not know who fired the shots, but

assumed that it was "members of the police department, members of

the government, [or] any members that don’t want us to be in public

acts and say the truth." Several members of the family testified that

they heard loud sounds or gun shots the night of shooting and that

they were scared and crying. The family abandoned their house that

evening and stayed with Maria Belbruno’s relatives. Juan Belbruno

testified that he fled to El Salvador for two or three days, returned to

Guatemala for his family, and then brought them to the United States.

He stated that he was afraid of returning with his family to Guate-

mala, but when asked who he feared, he stated, "[i]t’s hard to say a

specific person."

Maria Belbruno and her oldest daughter, Maria Belem, returned to

Guatemala in March 1998, so that Maria Belbruno could have cancer

surgery. Although Belbruno had already undergone two operations in

the United States, she decided to return to Guatemala to take advan-

tage of reduced medical costs for surgery that she could have received

in the United States. Maria Belem testified that she was scared to

return and that she stayed in Guatemala for twenty-eight days "with-

out going out anywhere." She conceded that she and her mother did

not experience any problems during their stay, but maintained that she

was afraid of "everything."

Belbruno also called Alfredo Forte, an expert on human rights in

Guatemala. He testified that he had served on a United Nations mis-

BELBRUNO v. ASHCROFT 5

sion that investigated compliance with a human rights accord that had

been signed in Guatemala. Forte stated that the individuals currently

facing harassment in Guatemala are those involved in investigating

human rights abuses.

At the conclusion of the asylum hearing, the Immigration Judge

denied Maria Belbruno’s application for asylum and withholding of

removal. In denying asylum, the Immigration Judge found that Maria

Belbruno failed to establish past persecution based on claims of anon-

ymous telephone threats and a single shooting incident by unknown

individuals at her house in 1990. The Immigration Judge held Bel-

bruno could not show that these incidents were on account of her hus-

band’s activities with the human rights organization. The judge also

found that Belbruno failed to establish a well-founded fear of future

persecution. She noted that Belbruno "indicated her willingness to

return to Guatemala by returning there" for twenty-eight days in 1998

to secure cheaper medical treatment and that Belbruno and her daugh-

ter experienced no problems during their return and thus could not be

considered refugees.

The judge did agree with Belbruno’s own expert that the people

experiencing some difficulties in Guatemala are those involved with

"investigation of the prior human rights abuses." Because neither Juan

Belbruno nor his wife had ever investigated human rights abuses,

however, the judge found that Maria Belbruno did not have a "well-

founded basis to fear harm at this time." Finally, the judge noted that

a State Department Report indicated there had been "a significant

improvement in the overall human rights situation" and that the gov-

ernment of Guatemala has "generally cooperated" with United

Nations investigations into human rights violations. The judge con-

cluded that conditions have greatly improved in this area since the

time that the Belbrunos entered the United States in 1990. The BIA

affirmed without opinion the Immigration Judge’s order denying

Maria Belbruno’s applications for asylum and for withholding of

removal. Belbruno appealed to this court to review the BIA’s deci-

sion. See 8 U.S.C. § 1252(b) (2000).

II.

This court reviews legal issues, including claims of due process

violations, de novo. See Nwolise v. INS, 4 F.3d 306, 309 (4th Cir.

6 BELBRUNO v. ASHCROFT

1993). BIA determinations concerning asylum eligibility or withhold-

ing of removal are conclusive "if supported by reasonable, substantial,

and probative evidence on the record considered as a whole." INS v.

Elias-Zacarias, 502 U.S. 478, 481 (1992) (internal citation omitted);

see also Gonahasa v. INS, 181 F.3d 538, 541 (4th Cir. 1999). If an

alien "seeks to obtain judicial reversal of the BIA’s determination, he

must show that the evidence he presented was so compelling that no

reasonable factfinder could fail to find the requisite fear of persecu-

tion." Elias-Zacarias, 502 U.S. at 483-84; see also Rusu v. INS, 296

F.3d 316, 325 n.14 (4th Cir. 2002); Chen Zhou Chai v. Carroll, 48

F.3d 1331, 1338 (4th Cir. 1995). "This narrow standard of review rec-

ognizes the respect we must accord both the BIA’s expertise in immi-

gration matters and its status as the Attorney General’s designee in

deportation decisions." Huaman-Cornelio v. BIA, 979 F.2d 995, 999

(4th Cir. 1992).

Belbruno raises a number of procedural challenges to the decisions

of the Immigration Judge and BIA. First, she claims that the stream-

lining regulations promulgated by the Attorney General are inconsis-

tent with the INA. See 8 U.S.C. § 1103(a) (2000). Second, Belbruno

claims the application of these regulations to her case violated her due

process rights. Third, she claims that application of the streamlining

regulations to her pending appeal had a constitutionally impermissible

retroactive effect. Lastly, she raises the substantive claim that the BIA

erred in finding that she had not demonstrated past persecution or a

well-founded fear of future persecution if forced to return to Guate-

mala. We shall address these arguments in turn.

III.

A.

Belbruno first contends that the streamlining regulations for asylum

appeals to the BIA are inconsistent with the INA. To determine

whether an agency has properly construed the statute which it admin-

isters, we apply the familiar principles of Chevron U.S.A., Inc. v. Nat-

ural Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). In

considering the Attorney General’s interpretation of the INA, we are

mindful of the fact that "‘the power to expel or include aliens [is] a

fundamental sovereign attribute exercised by the Government’s politi-

BELBRUNO v. ASHCROFT 7

cal departments largely immune from judicial control.’" Fiallo v. Bell,

430 U.S. 787, 792 (1977) (quoting Shaughnessy v. United States ex

rel. Mezei, 345 U.S. 206 (1953)). The Attorney General enjoys broad

powers with respect to "the administration and enforcement of [the

INA] and all other laws relating to the immigration and naturalization

of aliens." 8 U.S.C. § 1103(a)(1) (2000). The INA empowers the

Attorney General to "establish such regulations; . . . issue such

instructions; and perform such other acts as he deems necessary for

carrying out his authority" under the immigration laws. 8 U.S.C.

§ 1103(a)(3) (2000). "The Attorney General may provide by regula-

tion for any other conditions or limitations on the consideration of an

application for asylum not inconsistent with [the INA]." 8 U.S.C.

§ 1158(d)(5)(B) (2000).

Pursuant to his powers under the INA, the Attorney General issued

regulations creating the BIA as the administrative appellate body for

asylum cases. See 8 C.F.R. § 3.1(a)(1) (2002). For most of the BIA’s

history, three-member panels heard immigration appeals and issued

written opinions explaining their rationale or adopting the Immigra-

tion Judge’s opinion. See 1 Charles Gordon, Stanley Mailman, & Ste-

phen Yale-Loehr, Immigration Law and Procedure § 3.05[1] (rev. ed.

2003). However, in 1999 the Attorney General adopted a set of

"streamlining regulations" in order to address a backlog of cases that

numbered in the tens of thousands. See Executive Office of Immigra-

tion Review; Board of Immigration Appeals: Streamlining, 64 Fed.

Reg. 56,135, 56,136 (Oct. 18, 1999) (codified at 8 C.F.R. pt. 3).

These regulations allowed adjudication of appeals by single BIA

members and affirmance of Immigration Judges’ decisions without

opinion under specified circumstances. See 8 C.F.R. § 3.1(a)(7) (2002).2

2

It is important to note that the streamlining regulations were first

adopted in 1999 and later supplanted by final amended regulations in

August 2002, which became effective on September 25, 2002. See Board

of Immigration Appeals: Procedural Reforms to Improve Case Manage-

ment, 67 Fed. Reg. 54,878, 54,878-79 (Aug. 26, 2002) (codified at 8

C.F.R. pt. 3). The final amended regulations expand reliance on review

by single BIA members and the use of affirmance without opinion. They

also reduced the number of BIA members from twenty-three to eleven.

The 1999 regulations were formerly codified at 8 C.F.R. § 3.1 (2002) and

were recodified at 8 C.F.R. § 1003.1 (2003). Although this case was

8 BELBRUNO v. ASHCROFT

The streamlining regulations set forth clear conditions that must be

satisfied for a single BIA judge to summarily affirm. The BIA mem-

ber had to determine:

that the result reached in the decision under review was cor-

rect; that any errors in the decision under review were harm-

less or nonmaterial; and that

(A) The issue on appeal is squarely controlled by existing

Board or federal court precedent and does not involve the

application of precedent to a novel fact situation; or

(B) The factual and legal questions raised on appeal are so

insubstantial that three-Member review is not warranted.

8 C.F.R. § 3.1(a)(7)(ii) (2002). If the BIA reviewer found these condi-

tions were satisfied, he would issue an order that "[t]he Board affirms,

without opinion, the result of the decision below. The decision below

is, therefore, the final agency determination. See 8 C.F.R. § 3.1(a)(7)."

8 C.F.R. § 3.1(a)(7)(iii) (2002). The regulations not only mandated

this language, but also specifically prohibited a BIA member from

offering any additional explanation or reasoning in a summary affir-

mance case. 8 C.F.R. § 3.1(a)(7)(ii) (2002).

Congress has not addressed "the precise question" of procedures

for administrative appeals of asylum claims, so the first prong of

Chevron is inapplicable. 467 U.S. at 843. The Attorney General’s

interpretation of the INA satisfies the second prong of Chevron, how-

ever, as the regulations are "based on a permissible construction of

the statute." Id. at 843. One section of the INA refers to the existence

of the BIA, see 8 U.S.C. § 1101(a)(47)(B) (2000), and other sections

refer to an administrative appeal for asylum seekers, see, e.g., 8

U.S.C. § 1158(d)(5)(A)(iii)-(iv) (2000). But the INA is simply silent

decided under the 1999 streamlining regulations, the 2002 changes do

not affect our decision as both versions of the regulations employ the

practices of review by a single BIA member and affirmance without

opinion, the very procedures whose constitutionality we are now consid-

ering.

BELBRUNO v. ASHCROFT 9

as to what procedures should apply to that appeal. As the Third Cir-

cuit put it: "[T]he INA says nothing whatsoever regarding the proce-

dures of an administrative appeal, or, for that matter, any other

procedures employed by the BIA." Dia v. Ashcroft, 353 F.3d 228, 237

(3rd Cir. 2003) (en banc). This fact suggests that the INA vests broad

discretion in the Attorney General to fashion the procedures of the

BIA.

"Absent constitutional constraints or extremely compelling circum-

stances, the administrative agencies should be free to fashion their

own rules of procedure and to pursue methods of inquiry capable of

permitting them to discharge their multitudinous duties." Vermont

Yankee Nuclear Power Corp. v. Natural Res. Def. Council, Inc., 435

U.S. 519, 543 (1978) (internal quotations omitted). The Attorney

General is charged with balancing the need for adequate protections

for asylum seekers against a backlog of tens of thousands of cases that

leave many asylum seekers in limbo. The agency operates in an envi-

ronment of limited resources, and how it allocates those resources to

address the burden of increasing claims is a calculation that courts

should be loathe to second guess. Here the agency adopted regula-

tions that would allow it to focus a greater measure of its resources

on more complicated cases. This is the type of decision that agencies

are the most informed to make, and enjoy the discretion to resolve.

We, therefore, hold that the streamlining regulations are a permissible

construction of the INA and permit the Attorney General to fulfill his

legislatively delegated functions.

B.

We next consider Belbruno’s claim that the streamlining regula-

tions deprived her of the right to due process of law under the Fifth

Amendment. To begin with, "aliens have only those rights Congress

sees fit to provide. Aliens have no independent constitutional rights

in an asylum procedure." Selgeka v. Carroll, 184 F.3d 337, 342 (4th

Cir. 1999) (citing Landon v. Plasencia, 459 U.S. 21, 32 (1982)).

Aliens possess, for example, no constitutional right to an administra-

tive appeal. See Albathani v. INS, 318 F.3d 365, 376 (1st Cir. 2003)

("An alien has no constitutional right to any administrative appeal at

all."); see also Abney v. United States, 431 U.S. 651, 656 (1977)

10 BELBRUNO v. ASHCROFT

("[T]here is no constitutional right to an appeal" even in criminal

cases.).

The Attorney General, however, has exercised his powers under

the INA to issue regulations allowing aliens to appeal decisions of

Immigration Judges in asylum and removal proceedings. See 8 C.F.R.

§ 3.1(b)(3), 3.1(b)(9) (2002). Although the federal government had no

obligation to create an administrative right to appeal or to establish a

specific set of procedures, "‘[w]hen Congress directs an agency to

establish a procedure . . . it can be assumed that Congress intends that

procedure to be a fair one.’" Selgeka, 184 F.3d at 342 (quoting Marin-

cas v. Lewis, 92 F.3d 195, 203 (3rd Cir. 1996)).

Belbruno argues that an affirmance of an Immigration Judge with-

out opinion violates her due process rights because the BIA has failed

to produce a final decision that provides this court a meaningful basis

for review. The basis for an administrative action must of course "be

set forth with such clarity as to be understandable," as we must "judge

the propriety of such action solely by the grounds invoked by the

agency." SEC v. Chenery Corp., 332 U.S. 194, 196 (1947). The famil-

iar Chenery directive, however, provides no basis for finding the sum-

mary affirmance procedure here defective. Belbruno overlooks the

fact that the Immigration Judge’s opinion provides the reasoned basis

on which the BIA and the INS as an agency relied, and which we

review here. In fact, the summary affirmance regulations specifically

establish that the Immigration Judge’s decision serves as the final

agency action. 8 C.F.R. § 3.1(a)(7)(iii) (2002). This satisfies the

requirements of Chenery: the proper emphasis is on whether there are

reasoned bases for the actions of the agency as a whole, and the

Immigration Judge’s opinion serves that purpose. See Albathani, 318

F.3d at 377.

Here Belbruno received an extensive hearing before an Immigra-

tion Judge, which included hours of testimony by members of the

Belbruno family, testimony by an expert on human rights in Guate-

mala, and the introduction of documentary evidence. The Immigration

Judge issued a ten-page opinion that found that Belbruno was ineligi-

ble for asylum because she failed to establish past persecution or a

well-founded fear of future persecution. This opinion clearly laid out

BELBRUNO v. ASHCROFT 11

the reasoning for the agency’s decision, which we can meaningfully

review.

Belbruno correctly notes that the affirmance without opinion proce-

dure allows the BIA to affirm an Immigration Judge decision even

when the BIA panel member may disagree with the decision in part.

See 8 C.F.R. § 3.1(a)(7)(iii) (2002). This fact, however, is ameliorated

by the requirement that in such cases the BIA reviewer must deter-

mine that "any errors in the decision under review were harmless or

nonmaterial." 8 C.F.R. § 3.1(a)(7)(ii) (2002). And the streamlined

procedures in no way alter the degree of scrutiny which this court

applies to asylum decisions. In cases of summary affirmance by the

BIA, a reviewing court need only consider the reasons laid out by the

Immigration Judge, not what the BIA may or may not have addition-

ally meant in affirming the Immigration Judge’s decision. If the

BIA’s practices result in a decision that allows a non-harmless error

to slip through, there is always the avenue of an appeal to the courts

to correct the error. Judicial review, not judicial micromanagement of

BIA procedures, is the proper response to Belbruno’s concerns.

The BIA summary affirmance procedures are not unlike summary

disposition procedures routinely used by appellate courts to resolve

cases which do not raise novel or complex questions and whose issues

the lower court has adequately addressed. See, e.g., Third Cir. Internal

Operating Procedures § 10.6; Fourth Circuit Local Rule 36.3 (allow-

ing the use of summary affirmance where all judges on a panel agree

that "a case would have no precedential value, and that summary dis-

position is otherwise appropriate"). These practices serve to reserve

appellate explication for issues that require it. "They do not, either

alone or in combination with caseload statistics, establish that the

required review is not taking place." Albathani, 318 F.3d at 379; see

also Denko v. INS, 351 F.3d 717, 729 (6th Cir. 2003) ("We will not

assume such a complete break-down in the system in the absence of

tangible evidence to support such a conclusion."); Mendoza v. Ash-

croft, 327 F.3d 1283, 1289 (11th Cir. 2003) ("That a one-sentence

order was entered is no evidence that the BIA member did not review

the facts of Mendoza’s case.")

Belbruno also claims a due process violation, because a single BIA

member, rather than a three-member panel, decided her appeal. She

12 BELBRUNO v. ASHCROFT

claims the resolution of her appeal by a single person resulted in a

greater chance of an inaccurate and constitutionally impermissible

result. But there is no magic — and certainly no due process implica-

tions — in any given number of reviewing judges. What matters is

that Belbruno was able to take the decision of the Immigration Judge

to an authority with the responsibility to overturn an erroneous deci-

sion. And, of course, Belbruno both possessed and exercised the right

to appeal the agency decision to a panel of this court whose members,

coincidentally, are three in number.

Belbruno does point to statistics from a Los Angeles Times article

and an American Bar Association study suggesting that the BIA

reversed a much lower percentage of Immigration Judge decisions

after the streamlining regulations were implemented. See Lisa Getter

& Jonathan Peterson, Speedier Rate of Deportation Rulings Assailed,

L.A. Times, Jan. 5, 2003; Dorsey & Whitney LLP Study Conducted

for the American Bar Association Commission on Immigration Pol-

icy, Practice and Pro Bono, Board of Immigration Appeals: Proce-

dural Reforms to Enhance Case Management (July 22, 2003). Such

statistics prove little, however. We have no idea what the optimal rate

of affirmance or reversal of Immigration Judge decisions is, if such

an optimal rate even exists. And Belbruno has made no showing that

the BIA has failed to conduct the necessary review. Our attention here

is thus more profitably focused on Belbruno’s claims of error than on

alleged systemic shortcomings. See McCleskey v. Kemp, 481 U.S.

279, 293-295 (1987) (holding in the context of capital sentencing that

inferences from statistics are of doubtful relevance to the infinite fact

variations of individual cases). Differences in the percentage of rever-

sals following the implementation of the streamlining regulations may

be an appropriate consideration for both the agency and Congress in

assessing the regulations’ burdens and benefits. That sort of inquiry,

however, would take us far afield from Belbruno’s case.

Maria Belbruno received a written opinion from an Immigration

Judge laying out the reasons for his decision, exercised the right to

appeal this decision to the BIA, and further appealed the BIA’s deci-

sion to a three-member panel of this court. The United States has a

strong interest in procedures that achieve an accurate and efficient

resolution of the rising number of asylum cases. The Supreme Court

has stated that "administrative agencies and administrators will be

BELBRUNO v. ASHCROFT 13

familiar with the industries which they regulate and will be in a better

position than federal courts or Congress itself to design procedural

rules adapted to the peculiarities of the industry and the tasks of the

agency involved." Vermont Yankee, 435 U.S. at 525 (internal quota-

tions omitted). This is nowhere more true than in the immigration

context in which courts have historically deferred to the executive

branch.

For the foregoing reasons, this court joins the other federal appel-

late courts that have considered this question and concludes that the

BIA’s streamlining regulations do not violate an alien’s rights to due

process of law under the Fifth Amendment. See, e.g., Yuk v. Ashcroft,

355 F.3d 1222 (10th Cir. 2004); Oforji v. Ashcroft, 354 F.3d 609 (7th

Cir. 2003); Loulou v. Ashcroft, 354 F.3d 706 (8th Cir. 2003); Dia v.

Ashcroft, 353 F.3d 228 (3d Cir. 2003) (en banc); Denko v. INS, 351

F.3d 717 (6th Cir. 2003); Carriche v. Ashcroft, 335 F.3d 1009 (9th

Cir. 2003), amended and superseded on denial of reh’g, 350 F.3d 845

(9th Cir. 2003); Georgis v. Ashcroft, 328 F.3d 962 (7th Cir. 2003);

Mendoza v. Ashcroft, 327 F.3d 1283 (11th Cir. 2003); Soadjede v.

Ashcroft, 324 F.3d 830 (5th Cir. 2003) (per curiam); Albathani v. INS,

318 F.3d 365 (1st Cir. 2003).

C.

Belbruno also argues that the BIA’s application of the streamlining

procedures to her case had a constitutionally impermissible retroac-

tive effect. Belbruno asserts that the BIA’s use of this procedure upset

her expectations at the time she filed her appeal that she would be

entitled to review by at least three Board members and a detailed

decision explaining the basis for the Board’s ruling. This court

rejected a similar challenge to the BIA’s summary affirmance proce-

dures in Khattak v. Ashcroft, 332 F.3d 250, 252-53 (4th Cir. 2003).

Khattak concluded that "allowing summary opinions in clear cases is

nothing more than a procedural change that does not affect substan-

tive rights," and therefore does not have constitutionally impermissi-

ble retroactive effects. Id. at 253.

If, as Belbruno suggests, a rule change that "upsets expectations

based in prior law," Landgraf v. USI Film Prods., 511 U.S. 244, 269

(1994), by definition has retroactive effects, we would be forced to

14 BELBRUNO v. ASHCROFT

find that almost all rule changes are retroactive. This result would

stand as a stumbling block to needed statutory and regulatory change.

Instead, to determine whether a regulatory change has retroactive

effects, we must determine that a rule "attaches new legal conse-

quences to events completed before its enactment." INS v. St. Cyr,

533 U.S. 289, 321 (2001) (internal quotations omitted). To this end

we consider the effect of a rule change on "familiar considerations of

fair notice, reasonable reliance, and settled expectations." Martin v.

Hadix, 527 U.S. 343, 358 (1999) (internal quotations omitted).

Here the streamlining regulations created no new legal conse-

quences for events completed before its enactment. "[T]he new proce-

dure does not alter the legal standards that are applied in reviewing

the merits of appellants’ claims. Rather, it affects only the body that

adjudicates the claims." Khattak, 332 F.3d at 253. The regulations

limit review by a single BIA member and summary affirmance to

those cases that settled law easily resolves or in which the factual and

legal issues are insubstantial. See 8 C.F.R. § 3.1(a)(7)(ii) (2002).

Lastly, the summary affirmance procedure did little to unsettle expec-

tations as Belbruno still received the ample process documented

above. Khattak, 332 F.3d at 253. It is clear that the streamlining regu-

lations entailed a mere regulatory change within the agency’s appel-

late process and did not have a constitutionally impermissible

retroactive effect.

IV.

Having addressed Belbruno’s procedural claims, we now address

her substantive contention that the Immigration Judge erred in failing

to find that she had established past persecution or a well-founded

fear of future persecution if she returned to Guatemala. The INA

authorizes the Attorney General to confer asylum on any refugee. 8

U.S.C. § 1158(b)(1) (2000). It defines a refugee as a person unwilling

or unable to return to his native country "because of persecution or

a well-founded fear of persecution on account of race, religion,

nationality, membership in a particular social group, or political opin-

ion." 8 U.S.C. § 1101(a)(42) (2000).

An asylum seeker bears the burden of demonstrating his eligibility

within the meaning of 8 U.S.C. § 1101(a)(42). See 8 C.F.R.

BELBRUNO v. ASHCROFT 15

§ 208.13(a) (2002); Gonahasa, 181 F.3d at 541. To show this, an asy-

lum seeker must establish that past persecution or a well-founded fear

of future persecution is predicated on one or more protected factors

of "race, religion, nationality, membership in a particular social

group, or political opinion," 8 U.S.C. § 1101(a)(42) (2000); 8 C.F.R.

§ 208.13(b) (2002). Fears of "retribution over purely personal matters

or general conditions of upheaval and unrest" do not constitute cogni-

zable bases for granting asylum. Huaman-Cornelio v. BIA, 979 F.2d

995, 1000 (4th Cir. 1992).

An asylum seeker claiming a well-founded fear of future persecu-

tion must also show that he possesses both a subjectively genuine and

an objectively reasonable fear of persecution. See INS v. Cardoza-

Fonseca, 480 U.S. 421, 430-31 (1987). An asylum seeker must dem-

onstrate that his subjective "fear has some basis in the reality of the

circumstances and is validated with specific, concrete facts,"

Huaman-Cornelio, 979 F.2d at 999 (internal quotations omitted), and

is not "mere irrational apprehension." M.A. v. INS, 899 F.2d 304, 311

(4th Cir. 1990) (internal quotations omitted). The objective element

requires a showing that "a reasonable person in similar circumstances

would fear persecution on account of" one or more of the protected

grounds. Cruz-Diaz v. INS, 86 F.3d 330, 331 (4th Cir. 1996); see also

8 C.F.R. § 208.13(b)(2)(i)(B) (2002). If an alien can establish he has

suffered past persecution based on a protected factor, he is presumed

to have met the requirement of a well-founded fear of future persecu-

tion. Gonahasa, 181 F.3d at 541. The INS can rebut this presumption,

however, if a preponderance of the evidence establishes that condi-

tions "have changed to such an extent that the applicant no longer has

a well-founded fear of being persecuted if he or she were to return."

Id. at 541-42 (quoting 8 C.F.R. § 208.13(b)(1)(i)).

A determination that an alien is not eligible for asylum must be

upheld unless that determination is "manifestly contrary to the law

and an abuse of discretion." 8 U.S.C. § 1252(b)(4)(D) (2000).

"[A]dministrative findings of fact are conclusive unless any reason-

able adjudicator would be compelled to conclude to the contrary." 8

U.S.C. § 1252(b)(4)(B) (2000). This court will reverse the denial of

an asylum application only if the evidence "‘was so compelling that

no reasonable fact finder could fail to find the requisite fear of perse-

16 BELBRUNO v. ASHCROFT

cution.’" Rusu v. INS, 296 F.3d 316, 325 n.14 (4th Cir. 2002) (quoting

Huaman-Cornelio, 979 F.2d at 999)).

Here Belbruno failed to establish either past persecution in Guate-

mala or a well-founded fear of future persecution if she returned to

Guatemala. Members of the Belbruno family testified that they were

subjected to past persecution due to Juan Belbruno’s participation in

a human rights group. Their testimony, however, failed to establish

that Maria Belbruno faced any alleged persecution because of Juan

Belbruno’s participation in a human rights organization. The events

supporting Maria Belbruno’s claim of political persecution were few

and ambiguous. Belbruno claims that the family received threatening

telephone calls from unnamed persons. She also claims that unknown

persons fired shots at the family’s house for unknown reasons. The

Immigration Judge conceded these events were undoubtedly "terrible

experiences" for the family, yet found that "they do not constitute

such egregious violations of their human rights that it would be inhu-

man for them to return to [Guatemala]." Even accepting Belbruno’s

claims at face value, the Immigration Judge properly found they did

not address the requisite element of causation that Belbruno had suf-

fered past harm rising to the level of persecution due to either her or

her husband’s political beliefs.

Belbruno also failed to show that she possessed a well-founded fear

of future persecution. Belbruno concedes that she and her daughter

voluntarily returned to Guatemala nearly eight years after coming to

the United States in order for Belbruno to obtain less expensive medi-

cal care. Belbruno also concedes that she and her daughter were able

to remain for twenty-eight days in Guatemala without incident or

harm, yet argues that her need for medical care constituted a compel-

ling reason to return to Guatemala.

The Immigration Judge properly found that Belbruno "indicated

her willingness to return to Guatemala by returning there," and that

she therefore did not meet the definition of a refugee. 8 C.F.R.

§ 208.8(b) (2002) provides that an asylum applicant "who leaves the

United States pursuant to advance parole [because of his status as an

asylum seeker] . . . and returns to the country of claimed persecution

shall be presumed to have abandoned his or her application, unless the

applicant is able to establish compelling reasons for such return." We

BELBRUNO v. ASHCROFT 17

in no way make light of appellant’s medical difficulties. While efforts

to obtain critical medical care might constitute a compelling reason

to return in some cases, it did not here, particularly since Belbruno

failed to show that she could not afford or otherwise obtain the proce-

dure in the United States. See Marquez v. INS, 105 F.3d 374, 380 (7th

Cir. 1997) (finding that an alien failed to show a well-founded fear

of persecution where he returned to the Philippines on two occasions

following his alleged persecution and remained for long periods of

time without incident).

Belbruno also claims that the Immigration Judge incorrectly placed

the burden on her to show that she is not a citizen of Argentina. This

issue is not dispositive, and we need not resolve whether the judge

properly placed the burden on Belbruno in order to affirm the BIA’s

decision. The Immigration Judge noted that Belbruno may have

acquired Argentinean nationality through her husband, and that this

"remains a question on the record as a separate and distinct basis for

denying the application." The Immigration Judge’s decision, how-

ever, was based upon the fact that Belbruno failed to demonstrate a

well-founded fear of persecution in Guatemala and thus was ineligible

for asylum. Under these circumstances, we cannot conclude that the

evidence "‘was so compelling that no reasonable fact finder could fail

to find the requisite fear of persecution.’" Rusu, 296 F.3d at 325 n.14.

V.

We likewise hold that Belbruno is ineligible for withholding of

removal. An asylum applicant is entitled to withholding of removal

if he can establish a "clear probability of persecution because of his

race, religion, nationality, membership in a particular social group, or

political opinion." Rusu, 296 F.3d at 324 n.13. This is a higher stan-

dard than an asylum claim’s requirement of a well-founded fear of

persecution. Since Belbruno failed to meet the lower standard for an

asylum claim, we find that the Immigration Judge also properly

denied her petition for withholding of removal. See Huaman-

Cornelio, 979 F.2d at 1000.

For the foregoing reasons, we dismiss the petition for review and

affirm the judgment of the Board of Immigration Appeals.

AFFIRMED