                REVISED SEPTEMBER 26, 2008
         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                                    Fifth Circuit

                                                                  FILED
                               No. 07-60822                   September 26, 2008
                             Summary Calendar
                                                             Charles R. Fulbruge III
                                                                     Clerk
OSCAR ORLANDO AGUILAR

                                          Petitioner

v.

MICHAEL B MUKASEY, U S ATTORNEY GENERAL

                                          Respondent


                    Petition for Review of an Order of the
                       Board of Immigration Appeals
                            BIA No. A97 745 836


Before KING, GARWOOD and BARKSDALE, Circuit Judges.
PER CURIAM:*
     Oscar Orlando Aguilar (Aguilar), a native and citizen of El Salvador,
petitions for review of the Board of Immigration Appeals’ (BIA’s) decision
denying his application for withholding of removal. Aguilar claims that he
suffered persecution in El Salvador because gang members threatened to kill
him, his mother, and his brother unless his brother joined their gang. He also



     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
                                    No. 07-60822

claims that he will face more persecution in El Salvador if he is forced to return
to that country.
        If the BIA has made no error of law, we will affirm its conclusion if it is
based     on   the   evidence   presented    and   is   substantially   reasonable.
Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 351 (5th Cir. 2002). We will reverse
only if the evidence compels a contrary conclusion. Carbajal-Gonzalez v. I.N.S.,
78 F.3d 194, 196 (5th Cir. 1996).
        An applicant for withholding of removal bears the burden of
demonstrating a clear probability that his life or freedom would be threatened
on account of race, religion, nationality, membership in a particular social group,
or political opinion if he is returned to his country of origin. Chen v. Gonzales,
470 F.3d 1131, 1138 (5th Cir. 2006). A clear probability is one that establishes
that it is more likely than not that the applicant would be subject to persecution
for one of the reasons specified by law. Campos-Guardado v. I.N.S., 809 F.2d
285, 290 (5th Cir. 1987). The clear-probability standard for withholding of
removal requires that the applicant show “a higher objective likelihood of
persecution than that required” to prevail on an application for asylum. Chen,
470 F.3d at 1138 (noting that an applicant for asylum must demonstrate a well-
founded fear of persecution).      Threats alone do not necessarily constitute
persecution. See Tesfamichael v. Gonzales, 469 F.3d 109, 116 (5th Cir. 2006);
Mikhael v. I.N.S., 115 F.3d 299, 304 & n.4 (5th Cir. 1997).
        Aguilar testified that he first came to the United States in March 2001,
that he returned to El Salvador in December 2003 because his mother was sick.
His parents and his brother lived in El Salvador. In January 2004 Aguilar was
told by his mother and brother that gang members – recognizable as such by
their tattoos – came by (but not inside) their house and told his mother and
brother, that if his brother did not join the gang they would “kill him, kill my
mother and kill me.” Aguilar was not present at that time. In his affidavit in
support of his application for withholding Aguilar states that “gangs came

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around our house while I was there and threatened to kill everyone unless our
brother joined them.” Aguilar testified that neither he nor any of his family ever
reported any of this to the police or other authorities. There is no evidence any
of the gang members had any type of weapon. Because of these threats his
brother left El Salvador and Aguilar does not know where he is. Aguilar because
of those threats left El Salvador in February 2004 entering the United States in
March 2004. Aguilar also testified that he, himself, had never had any problems
with gangs and was “never harmed” while in El Salvador. There is no evidence
of any harm to either of his parents who remain in El Salvador (or to his
brother). There is no other evidence of threats or anything else claimed to
constitute persecution or to pose a risk of persecution on return. The evidence
does not compel the conclusion either that Aguilar had actually suffered
persecution in El Salvador or that there is a clear probability that he will suffer
persecution if returned to El Salvador.
      Moreover, there was no evidence that any of the threats implicated any of
the protected grounds provided by law. See Roy v. Ashcroft, 389 F.3d 132, 138
(5th Cir. 2004) (“A clear probability means that it is more likely than not that
the applicant’s life or freedom would be threatened by persecution on account of
either his race, religion, nationality, membership in a particular social group, or
political opinion.”). Except for stating that he fears more threats of the type he
previously received, which did not amount to persecution, Aguilar points to no
evidence of future acts that would constitute persecution. Additionally, none of
the threats of which Aguilar complains implicate any of the protected grounds.
See Roy v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004).1


      1
       Nothing in Aguilar’s testimony even suggests otherwise. His withholding
application answers “no” to the question:

            “Have you or your family members ever belonged to or been
      associated with any organizations or groups in your home country,
      such as, but not limited to, a policity party, student group, labor

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      Although Aguilar mentions the Convention Against Torture (CAT) in his
brief in this court, he did not argue a CAT claim in his brief to the BIA.
Consequently, we have no jurisdiction to consider a CAT claim by Aguilar. See
Witter v. I.N.S., 113 F.3d 549, 554 (5th Cir. 1997).
      PETITION DENIED.




      union, religious organization, military or paramilitary group, civil
      patrol, guerrilla organization, ethnic group, human rights group, or
      the press or media?”

      His affidavit states that he is “a member of a particular social group, that
is a male.”


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