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                           United States Court of Appeals
                                    Tenth Circuit
                                     NOV 15 2001
                                   PATRICK FISHER
                               FOR THE TENTH CIRCUIT
         LUIS JUAN MONTEJO,               
         v.                                         No.  01-9507
                                                (BIA No. A70 095 957)
         IMMIGRATION &  NATURALIZATION          (Petition for Review)

         Before TACHA, Chief Judge, SEYMOUR, Circuit Judge, and BRORBY, Senior 
         Circuit Judge.

              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.   

         (1)     This order and judgment is not binding precedent, except under the 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.
              Petitioner Luis Juan Montejo, a citizen of Guatemala, appeals the decision 

         by the Board of Immigration of Appeals (Board) affirming the immigration judge 

         (IJ)'s denial of petitioner's application for asylum and withholding of removal. 

         Because the decision is supported by substantial evidence, we affirm.

              Petitioner entered the United States illegally in May 1990, seeking to avoid 

         recruitment by guerrilla forces in Guatemala.  In June 1991, he submitted an 

         application for asylum.  Removal proceedings were initiated against petitioner on 

         June 17, 1997, and on August 11, 1998, petitioner admitted that he was 

         removable, but reiterated his request for asylum and withholding of removal.  At a 

         hearing held on May 20, 1999, petitioner testified that when he was approximately 

         eleven years old his father refused to join the guerrilla forces and was placed on a 

         death list; that his father went to Mexico and later to the United States, where he 

         was deported in 1989; that petitioner feared that he would be recruited by the 

         guerrillas when he turned eighteen; that he knew neighbors who had been killed 

         for refusing to join the guerrilla forces; and that he left Guatemala when he was 

         eighteen to avoid being recruited.  

              Petitioner also presented a psychologist's report stating that petitioner 

         feared returning to Guatemala.  The report contained a somewhat different factual 

         history, relating that petitioner left his hometown at age 12 to live in the small 

         town of Retableu, that he moved to Guatemala City at age 15, and that he returned
         to his hometown at age 17 to work in a bakery.  The report stated that the 

         guerillas came to his hometown when petitioner was 15, and that his father left 

         the country in 1986 but returned to take care of his family in 1989.  Finally, the 

         report indicated that petitioner feared not only guerrilla recruitment, but military 

         recruitment as well.  The psychologist opined that petitioner was a marked man 

         because of his refusal to join either side, and that he might be retaliated against.    

              The government presented a State Department report on Guatemala 

         containing the following information concerning petitioner's claim:  that 

         Guatemala's thirty-six-year-old civil war ended with the signing of peace accords 

         in December 1996; that the umbrella guerrilla organization and its component 

         groups disbanded in March 1997 and have formed a legitimate political party; that 

         the guerrillas have renounced the use of force to achieve political goals; that the 

         military and police have been reduced and restructured and Civilian Self-Defense 

         Patrols have been abolished; that these entities are being held accountable for 

         their conduct; that the targeting of Indian populations for military and guerrilla 

         recruitment has ceased; that since the signing of the peace accords the State 

         Department had not seen any claims of violence by Guatemalan Indians that could 

         be attributed to political motives; and that even during the worst times the 

         enforced conscription was avoidable by moving to a different part of the country. 

              The IJ issued an oral ruling after the hearing, finding that petitioner had not 

         shown past persecution or a well-founded fear of future persecution based on his 

         race, religion, nationality, political opinion, or membership in a particular social 

         group; that recruitment by a military or guerrilla group was not considered 

         persecution on one of the enumerated grounds; that the fact that petitioner had not 

         been recruited when he was younger, during the prime recruitment ages, indicated 

         that he was not subjected to persecution; that petitioner could have moved to 

         another part of Guatemala to avoid guerrilla recruitment; that petitioner's fear of 

         future recruitment by the guerillas was not well-founded because of the peace 

         accord; and that petitioner's inability to meet the burden for asylum precluded 

         him from meeting the higher withholding of removal standard.  

              Petitioner appealed to the Board, arguing that he had met the standard for 

         asylum and that the IJ had improperly discounted his evidence.  The Board 

         concurred with the IJ's decision and dismissed the appeal.

              On appeal to this court, petitioner raises a host of issues that were not 

         raised to the Board.  Because petitioner failed to exhaust his remedies with 

         respect to these issues, we lack jurisdiction to consider them on appeal. 

         Akinwunmi v. INS, 194 F.3d 1340, 1341 (10th Cir. 1999).(1)  The one issue he

         (1)     Petitioner argues that we have jurisdiction to consider his equal protection 
         claim even though it was not raised to the Board because the Board lacksjurisdiction
		  to review constitutional issues.  It is true that there is an exception to 
         the general exhaustion rule for constitutional issues.  Akinwunmi, 194 F.3d at 
         1341.  Here, however, there is no actual controversy as to whether stopping the 
         accrual of an alien's years of continuous presence upon service of a notice to 
         appear violates equal protection, because petitioner has not shown that he was 
         refused cancellation of removal on this basis by the IJ or the Board.  Further, it is 
         not clear that petitioner would be foreclosed from seeking cancellation of removal 
         on this ground, as his notice to appear was served more than seven years after he 
         entered this country.     
         preserved is whether the BIA erred in affirming the IJ's decision that petitioner 

         failed to establish past persecution or a reasonable fear of future persecution.  We 

         review this issue under a deferential standard, reversing only if petitioner's 

         evidence "compels" a contrary conclusion.  INS v. Elias-Zacarias, 502 U.S. 478, 

         481 n.1 (1992).   

              Contrary to the facts described in petitioner's brief, the record shows that 

         petitioner himself was not actually threatened with death, but that his father had 

         been placed on a death list.  In fact, it is not clear whether petitioner was actually 

         recruited at all.  At the hearing, he testified that the guerillas stopped looking for 

         his family after his father left home because the children were still little, that the 

         guerrillas threatened to recruit him when he was older, and that he left Guatemala 

         because he was eighteen, which he believed was the age of recruitment, but that 

         no specific incident caused him to leave.  

               Even assuming that petitioner refused an attempt to recruit him, there is no 

         evidence that petitioner was recruited or refused recruitment due to his political 

         opinion.  In Elias-Zacarias, the Supreme Court made it clear that recruitment by 

         Guatemalan guerrillas, in itself, is not considered persecution based on political 

         opinion.  Id. at 482-83 (explaining that forced recruitment is not on account of 

         victim's political opinion, but that of guerrillas, and that refusal to join guerillas 

         can be for many reasons other than political opposition to their cause).  Because 

         here petitioner did not present any evidence that he was recruited based on his 

         political opinion or that he refused to join the guerillas because he disagreed with 

         their political stance, the evidence does not compel the conclusion that he was 

         persecuted based on his political opinion.  

              The decision of the Board of Immigration Appeals is AFFIRMED, and the 

         petition for review is DISMISSED.


                                                 Entered for the Court
                                                 Deanell Reece Tacha 
                                                 Chief Judge