                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 12-2099
                                      ___________

                           MIGUEL ORELLANA-GARCIA,

                                                             Petitioner

                                            v.

                 ATTORNEY GENERAL OF THE UNITED STATES
                    ____________________________________

                       On Petition for Review of an Order of the
                             Board of Immigration Appeals
                              (Agency No. A094-320-156)
                    Immigration Judge: Honorable Walter A. Durling
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 November 21, 2012

                 Before: FISHER, GARTH and ROTH, Circuit Judges

                            (Opinion filed: January 29, 2013)
                                      ___________

                                       OPINION
                                      ___________

PER CURIAM

      Miguel Orellana-Garcia, a native and citizen of El Salvador, entered the United

States with his family at the age of nine without inspection in 1996. After Orellana-

Garcia pleaded guilty to a marijuana offense in 2007, the Government charged him as
removable under 8 U.S.C. § 1182(a)(2)(A)(i)(II) for having violated a law relating to a

controlled substance. He conceded the charge and applied for asylum, withholding of

removal, and protection under the Convention Against Torture (“CAT”) based on his

membership in a particular social group. In particular, he argued that as a young

Salvadoran male raised in the United States (with the characteristics and attributed

characteristics of such a person), he faced a risk of persecution by gangs in El Salvador.

       The Immigration Judge (“IJ”) concluded that Orellana-Garcia’s asylum

application was time-barred, and denied his other applications. Orellana-Garcia appealed

the decision to the Board of Immigration Appeals (“BIA”), and sought a remand based on

Valdiviezo-Galdamez v. Attorney Gen. of the United States, 663 F.3d 582 (3d Cir. 2011).

       The BIA dismissed Orellana-Garcia’s appeal. The BIA upheld the denial of the

asylum application as time-barred. Among other things, the BIA also concluded that,

even assuming that Orellana-Garcia had articulated membership in a particular social

group, he had failed to establish that any claimed past mistreatment or fear of future harm

rose to the level of persecution or was on account of a protected ground. The BIA also

denied Orellana-Garcia’s motion to remand as unnecessary under the facts of his case

because he had failed to establish that any past or feared future harm rose to the level of

persecution or that any harm was on account of any protected ground.

       Orellana-Garcia presents a petition for review. He puts forth three claims of error.

He contends that the BIA should have remanded his case; that the BIA committed legal

error by holding that the persecution he feared was not on account of a protected ground

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regardless of whether he showed a cognizable social group; and that the BIA erred in

finding that the harm he fears does not rise to the level of persecution. 1 The Government

argues that the latter two claims do not come within our jurisdiction in this case and the

first is without merit, and accordingly requests that we dismiss the petition in part and

deny it in part.

       We first consider our jurisdiction and conclude that we may consider all three

questions. The basis for Orellana-Garcia’s removal is his conviction for a controlled

substance violation, so our jurisdiction is limited under the REAL ID Act to

constitutional claims and questions of law. See 8 U.S.C. §§ 1252(a)(2)(C) & (D); see

also Liang v. INS, 206 F.3d 308, 323 (3d Cir. 2000). Our review of questions of law

includes, under these circumstances, review of applications of law to facts. Cf. Silva-

Rengifo v. Attorney Gen. of the United States, 473 F.3d 58, 63 (3d Cir. 2007) (citing

Kamara v. Attorney Gen. of the United States, 420 F.3d 202, 211 (3d Cir. 2005), for the

proposition that the “jurisdictional grant regarding appeals by aggravated felons extends

not just to legal determinations but also to application of law to facts”).

       Accordingly, we may consider not just the legality of the denial of the request for

a remand, but also the question whether the feared harm constitutes persecution. Cf.

Toussaint v. Attorney Gen. of the United States, 455 F.3d 409, 412 n.3 (3d Cir. 2006)

(explaining that we may review, as an application of law to facts, a question that relates

       1
        As the Government asserts, Orellana-Garcia has waived all other claims. See
Voci v. Gonzales, 409 F.3d 607, 609 n.1 (3d Cir. 2005).


                                              3
not to disputed facts, but to whether the facts, if accepted as true, would demonstrate that

a person would be subject to persecution). Also, Orellana-Garcia presents a legal

question in his remaining argument insomuch as the essence of his argument is that the

BIA should not have ruled on whether any persecution was “on account of” a protected

ground independently of its analysis of the “social group” question.

       Upon review, we will deny the petition. In considering the “social group”

question, the IJ in Orellana-Garcia’s case did rely on the “social visibility” requirement

subsequently rejected in Valdiviezo-Galdamez, 663 F.3d at 604. However, the IJ and the

BIA also ruled that even if Orellana-Garcia had shown that he was a member in a

particular social group, he had not shown that he would be targeted on account of that

basis. Although Orellana-Garcia argues to the contrary, this conclusion could be reached

without resolving the social group question in this case. Cf. Gomez-Zuluaga v. Attorney

Gen. of the United States, 527 F.3d 330, 345 n.10 (3d Cir. 2008) (ruling that it was not

necessary to determine if there was a “particular social group” in that case where there

was substantial evidence that the petitioner had not been mistreated because of her

membership in the group she described).

       The BIA’s conclusion that Orellana-Garcia would not be targeted on account of a

protected ground is supported by substantial evidence. As the BIA explained, Orellana-

Garcia had merely speculated that his family members’ past experiences were with gang

members, and his fear of future harm was equally speculative. Orellana-Garcia did not

provide any evidence that he has been or will be targeted specifically. To the extent he

                                             4
raised a more specific threat of harm from someone who does not wish to pay back a

loan, he described a personal dispute unrelated to his membership in any particular social

group. Cf. Shehu v. Attorney Gen. of the United States, 482 F.3d 652, 657 (3d Cir. 2007)

(holding that mistreatment resulting from the bare desire for money is not persecution on

account of a protected ground).

       Furthermore, and given the speculative nature of Orellana-Garcia’s claims,

substantial evidence supports the BIA’s conclusion that the harm Orellana-Garcia feared

did not rise to the level of persecution. See Abdille v. Ashcroft, 242 F.3d 477, 494-95

(3d Cir. 2001) (explaining that ordinary criminal activity does not rise to the level of

persecution); Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993) (stating that the “concept of

persecution does not encompass all treatment that our society regards as unfair, unjust, or

even unlawful or unconstitutional”).

       Given that the BIA could, and did, provide a rationale for its decision independent

of the resolution of the social group question in this case, a remand to the IJ was not

necessary despite our intervening ruling in Valdiviezo-Galdamez. Accordingly, the BIA

did not err in denying the motion to remand under the circumstances of this case.

       For these reasons, we will deny the petition for review.




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