     Case: 13-60898      Document: 00512825106         Page: 1    Date Filed: 11/04/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-60898
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         November 4, 2014
VICTOR EDDY GEOVANI DE LEON-SAJ,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

                                                 Respondent


                       Petition for Review of an Order of the
                          Board of Immigration Appeals
                               BIA No. A200 819 177


Before HIGGINBOTHAM, JONES, and HIGGINSON, Circuit Judges.
PER CURIAM: *
       Victor Eddy Geovani De Leon-Saj (De Leon), a native and citizen of
Guatemala, petitions for review of an order of the Board of Immigration
Appeals (BIA) summarily affirming the immigration judge’s (IJ) decision
denying his application for asylum and withholding of removal. De Leon
argues that he established past persecution and a well-founded fear of future
persecution on account of his membership in a particular social group


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                 No. 13-60898

consisting of students in Guatemala who were recruited by gangs to sell drugs
on behalf of the gangs and who refused.
      Where, as here, the BIA summarily affirms the IJ’s decision without
opinion, this court reviews the IJ’s decision. Galvez-Vergara v. Gonzales, 484
F.3d 798, 801 (5th Cir. 2007). Questions of law are subject to de novo review.
Shaikh v. Holder, 588 F.3d 861, 863 (5th Cir. 2009). “Factual findings are
reviewed for substantial evidence, which requires only that the BIA’s decisions
be supported by record evidence and be substantially reasonable.” Id. (internal
quotation marks and citations omitted).       Under the substantial evidence
standard, “reversal is improper unless we decide not only that the evidence
supports a contrary conclusion, but [also] that the evidence compels it.” Zhang
v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005) (alteration in original) (internal
quotation marks and citation omitted).
      To be eligible for asylum, De Leon must establish “that race, religion,
nationality, membership in a particular social group, or political opinion was
or will be at least one central reason for persecuting [him].”         8 U.S.C.
§ 1158(b)(1)(B)(i); see Tamara-Gomez v. Gonzales, 447 F.3d 343, 348–49 (5th
Cir. 2006). De Leon could qualify for asylum either by showing that he has
suffered past persecution or that he has a well-founded fear of future
persecution. 8 C.F.R. § 208.13(b). To prevail on a claim of past persecution, De
Leon must establish that he suffered persecution at the hands of the
“government or forces that a government is unable or unwilling to control.”
Tesfamichael v. Gonzales, 469 F.3d 109, 113 (5th Cir. 2006). To establish a
well-founded fear of future persecution, De Leon “must demonstrate a
subjective fear of persecution, and that fear must be objectively reasonable.”
Zhao v. Gonzales, 404 F.3d 295, 307 (5th Cir. 2005) (internal quotation marks
and citation omitted). The standard for obtaining withholding of removal is



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                                       No. 13-60898

even higher, requiring a showing that it is more likely than not that the
applicant’s life or freedom would be threatened by persecution based on one of
the protected grounds. Efe v. Ashcroft, 293 F.3d 899, 906 (5th Cir. 2002).
       De Leon’s petition for review is unsuccessful for two reasons. First, in his
brief to this court, De Leon has not challenged the IJ’s determination that he
failed to show that the government of Guatemala was unwilling or unable to
protect him. Thus, he has abandoned any challenge to that determination. See
Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003) (treating as abandoned
an argument not briefed on appeal). Further, because De Leon also did not
challenge in his brief to the BIA the IJ’s finding that he had not proved that
the Guatemalan government was unwilling or unable to control the gang
members, the issue is unexhausted and this court therefore lacks jurisdiction
to consider the issue. See Omari v. Holder, 562 F.3d 314, 318–19 (5th Cir.
2009).
       Second, the BIA did not err in determining that De Leon failed to
demonstrate that he was a member of a particular social group entitled to
protection. The social group in which De Leon claims membership—students
in Guatemala targeted by gangs—is overly broad and does not establish a
meaningful basis for distinguishing him from other people. See Orellana-
Monson v. Holder, 685 F.3d 511, 521–22 (5th Cir. 2012). 1 De Leon argues that

       1  Numerous cases in this court have held that one’s antagonistic relationship with
gangs does not amount to a common immutable characteristic establishing a particular social
group. See, e.g., Sorto-De Portillo v. Holder, 358 F. App’x 606, 607-08 (5th Cir. 2010) (holding
that the petitioner’s personal political views and refusal to pay bribes to local gangs did not
qualify her as a member of a protected social group); Cua-Tumax v. Holder, 343 F. App’x 995,
997 (5th Cir. 2009) (“The categories of youth and gang recruitment are overly broad and offer
no meaningful basis for distinguishing [the petitioner] from other persons.”); Villanueva-
Amaya v. Holder, 344 F. App’x 97, 100 (5th Cir. 2009) (holding that “[t]he petitioners failed
to present compelling evidence that young Honduran males exposed to gang violence are part
of [a] particular social group, who have common immutable characteristics”); Rivera-Barrera
v. Holder, 322 F. App’x 375, 376 (5th Cir. 2009) (reasoning that petitioner’s “contention that
as a young Guatemalan male, he is a member of a social group targeted by gangs for


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                                      No. 13-60898

the BIA should have considered the issue of “social visibility” in light of Matter
of M-E-V-G-, 26 I. & N. Dec. 227 (BIA 2014). De Leon, however, has not
explained how the BIA’s reasoning in Matter of M-E-V-G, which merely
clarified the BIA’s interpretation of the phrase “particular social group,” would
have altered the BIA’s decision when reviewing his own case. See 26 I. & N.
Dec. at 228 (clarifying that “ocular” visibility is not required to qualify as a
“particular social group” and renaming the “social visibility” element as “social
distinction”).
       In sum, the BIA’s determination that De Leon failed to show persecution
on account of membership in a particular social group is supported by
substantial evidence. See Orellana-Monson, 685 F.3d at 522. Because De Leon
has not shown that he is eligible for asylum, he also cannot show that he meets
the higher standard for withholding of removal. See Efe, 293 F.3d at 906. The
petition for review is therefore DENIED.




recruitment is overly broad and does not establish a meaningful basis for distinguishing him
from other people”).


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