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December 3, 2012
Elisabeth A. Shumaker
Clerk of Court
JOSE ROBERTO
MARTINEZ-CARBAJAL,
Petitioner,
v.
No. 12-9512
(Petition for Review)
After examining the briefs and appellate record, this panel has determined
unanimously to grant 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
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particular social group, or any other protected ground, id. (citing Matter of J-B-N- &
S-M-, 24 I. & N. Dec. 208 (BIA 2007)).1
II.
To be eligible for a discretionary grant of asylum, petitioner had to show that
he 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. Tulengkey v. Gonzales, 425 F.3d 1277, 1280 (10th Cir. 2005)
(footnote omitted) (internal quotation marks omitted). Persecution is the infliction
of suffering or harm upon those who differ (in race, religion, or political opinion) in a
way regarded as offensive, and requires more than just restrictions or threats to life
and liberty. Id. (internal quotation marks omitted). But [e]ven without past
persecution, [an applicant can] still qualify for asylum by establishing a well-founded
fear of future persecution. Id. at 1281 (internal quotation marks omitted). The fear
must be both subjectively genuine and objectively reasonable. Id.
The showing required for [restriction on] removal is more stringent tha[n] the
showing required for asylum. Zhi Wei Pang v. Holder, 665 F.3d 1226, 1233
(10th Cir. 2012). To be eligible for restriction on removal, an applicant must
demonstrate that there is a clear probability of persecution because of his race,
1
A single member of the BIA affirmed the IJs decision in a brief order. We
therefore review the BIAs decision and are free to consult[] the IJs more complete
explanation of those same grounds. Uanreroro v. Gonzales, 443 F.3d 1197, 1204
(10th Cir. 2006).
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Petitioner argues for reversal on the grounds that the BIA failed to apply the
clearly erroneous stand of review to the [IJs] decision. Petr Opening Br. at 9.
According to petitioner, the case should be remanded to cure the clear procedural
defect effectuated by the [BIA]. Id. at 15. There was no error, however, because
the BIA reviewed the IJs findings of fact under a clearly erroneous standard.
Admin. R. at 2.
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Timothy M. Tymkovich
Circuit Judge
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