          United States Court of Appeals
                      For the First Circuit


No. 15-1983

                     RONALDO HERNANDEZ-LIMA,

                           Petitioner,

                                v.

                         LORETTA E. LYNCH,
              Attorney General of the United States,

                           Respondent.


                PETITION FOR REVIEW OF AN ORDER OF
                 THE BOARD OF IMMIGRATION APPEALS


                              Before

                       Howard, Chief Judge,
                Lynch and Barron, Circuit Judges.


     Kevin MacMurray and MacMurray & Associates on brief for
petitioner.
     D. Nicholas Harling, Trial Attorney, Office of Immigration
Litigation, Civil Division, U.S. Department of Justice, Benjamin
C. Mizer, Principal Deputy Assistant Attorney General, Civil
Division, and Anthony P. Nicastro, Acting Assistant Director,
Office of Immigration Litigation, on brief for respondent.



                        September 7, 2016
            LYNCH, Circuit Judge.          Ronaldo Hernandez-Lima petitions

for review of the Board of Immigration Appeals' ("BIA") decision

to dismiss his appeal of an immigration judge's ("IJ") denial of

his application for withholding of removal.               Hernandez-Lima argued

that he suffered past persecution and faced a clear probability of

future persecution in Guatemala through threats, violence, and

extortion   on    account    of    both    his    political      opinion    and   his

membership in a particular social group.             He defined his political

opinion with reference to his participation in the Democratic

Christian Party's ("DCP") campaign around 1998 or 1999, and he

defined his particular social group as "members of a family who

were persecuted by gang members."              The BIA declared him ineligible

for withholding of removal, finding that he failed to establish

that any harm he had suffered or would likely suffer in the future

was both (1) severe enough to constitute persecution and (2)

related to a statutorily protected ground.

            Hernandez-Lima now argues that the record evidence would

have   compelled    a     reasonable      factfinder      to    reach   a   contrary

conclusion.      We deny his petition.

                                          I.

            Hernandez-Lima is a native and citizen of Guatemala.                    On

or about November 13, 2004, he was admitted to the United States

pursuant to a B-2 tourist visa authorizing him to remain in the

country   until     May    12,    2005.        However,    he    overstayed       this


                                       - 2 -
authorization, and on January 4, 2011, the Department of Homeland

Security served him with a Notice to Appear, charging him with

removability pursuant to 8 U.S.C. § 1227(a)(1)(B).1

               In pleadings submitted on February 22, 2011 and April 7,

2011, Hernandez-Lima indicated his intent to apply for asylum,

withholding of removal, protection under the Convention Against

Torture ("CAT"), and, in the alternative, voluntary departure.                   He

ultimately did not apply for asylum, but on December 10, 2013, the

IJ   entertained        Hernandez-Lima's   other       three   applications      for

relief at a hearing during which he testified.                      The following

summarizes the record evidence derived from that testimony and the

ensuing proceedings.

               Around 1998 or 1999, when Hernandez-Lima was a high

school student in Guatemala, he participated in the DCP's campaign

by attending meetings and putting up posters.                  After an opposing

party       prevailed   in   the   elections,    its    members     began    sending

threatening      messages,     through   third    parties,     to    DCP    members.

Specifically, Hernandez-Lima was told that members of the opposing

party had said they were going to kill him for supporting the DCP.

Hernandez-Lima's father received similar messages during his many

years of work for the municipality, but they never materialized


        1 Because Hernandez-Lima conceded his removability on
these grounds, we do not concern ourselves with the inconclusive
record evidence as to the legality of his two prior entries into
the United States.


                                       - 3 -
into physical harm.    The messages Hernandez-Lima received never

materialized into physical harm either.      Hernandez-Lima cites

these "political problems" as the reason he left Guatemala for the

United States in June 2001.

          In November or December 2003, he returned to Guatemala

to see his father, who had become ill, but he did not visit his

hometown because "[t]hings [had] gotten worse" there.   On February

14, 2004, he traveled back to the United States and remained there

for five to six months before again returning to Guatemala in

August 2004, this time to see his mother, who had also become ill.

In September 2004, while still in Guatemala, he was driving toward

his hometown when men with covered faces pulled their car in front

of his and shot him.   After receiving treatment in a hospital, he

traveled back to the United States, entering on November 13, 2004.

          Hernandez-Lima testified that he could not identify his

assailants because he could not see their faces, nor could he be

sure of their motive because they did not say anything.     But he

further testified that he believed his shooting was tied to his

past political activities and to efforts to extract money from his

family. He speculated that his old political opponents were behind

the attack because he "never had any problem with anybody else,"

and he speculated that his attackers sought money from his family

because a few of his relatives had been victims of extortion.




                               - 4 -
            As Hernandez-Lima explained, after his mother's death in

2010, he learned that gangs had been threatening to "kill somebody

in [her] family" if she did not pay them money and that she had

obliged.    Additionally, he explained that his cousin had faced

similar threats but had refused to pay and was subsequently

murdered along with his wife and her sister.              Hernandez-Lima

expressed fear that, if he were removed to Guatemala, he would

also face extortion and possibly be killed.           When asked who he

feared would harm him in these ways, he responded, "There's a lot

of criminal activity happening in [Guatemala], gangs, political

parties."

            Despite finding Hernandez-Lima credible, the IJ denied

him most of the relief he sought.            First, the IJ denied his

application for withholding of removal, reasoning that he (1)

failed to establish that he suffered past persecution on account

of a protected ground because he did not show sufficient harm from

the threats he received or a motive for the shooting he endured,

and   (2)   failed   to   establish   a   clear   probability   of   future

persecution on account of a protected ground because all he showed

was a possibility that he would be the victim of a crime unrelated

to any protected ground.       Second, the IJ denied his application

for protection under the CAT because he failed to establish that

Guatemalan officials would acquiesce in or turn a blind eye to any

torture he might face.       Finally, the IJ granted his application


                                  - 5 -
for voluntary departure because he complied with the statutory

requirements.

                 Hernandez-Lima appealed the denial of his application

for withholding of removal to the BIA, which affirmed the IJ's

findings and dismissed the appeal on July 30, 2015.2                     The BIA

rejected Hernandez-Lima's argument that he faced, and more likely

than       not   would   face    again,   persecution   in   Guatemala   through

threats, violence, and extortion on account of two protected

grounds: (1) his political opinion and (2) his membership in a

particular social group, defined as "members of a family who were

persecuted by gang members." The BIA's analysis proceeded in three

steps.

                 First, the problems Hernandez-Lima experienced that were

arguably on account of a protected ground -- the threats he

received from political opponents -- did not cause sufficient harm

to constitute past persecution.              Second, the problems Hernandez-

Lima       experienced    that    arguably   did   cause   sufficient    harm   to

constitute past persecution -- the shooting and his family's

extortion at the hands of "criminal gang members" -- were not on

account of a protected ground. And third, to the extent Hernandez-

Lima was likely to face conditions of crime and violence upon



       2  Hernandez-Lima did not appeal the IJ's denial of his
application for protection under the CAT; accordingly, the BIA
deemed the issue waived, and it has not been raised before us.


                                          - 6 -
returning to Guatemala, it was only because those conditions affect

the population at large -- not on account of a protected ground.

The   BIA   then   ordered   Hernandez-Lima   removed   from     the   United

States.3

            This petition for review followed.

                                      II.

            Where,   as   here,   the   petition    challenges    only    the

agency's findings of fact, see Sompotan v. Mukasey, 533 F.3d 63,

68 (1st Cir. 2008), we conduct our entire review under the "highly

deferential" substantial evidence standard, which requires us to

"uphold the BIA's determination as long as [it] is 'supported by

reasonable,    substantial,    and    probative    evidence,'"    Lopez      de

Hincapie v. Gonzales, 494 F.3d 213, 218 (1st Cir. 2007) (quoting

INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). "That the record

supports a conclusion contrary to that reached by the BIA is not

enough to warrant upsetting the BIA's view of the matter; for that

to occur, the record must compel the contrary conclusion."             Id.

            An alien can seek withholding of removal defensively in

response to a charge of removability if "the alien's life or

freedom would be threatened in [the] country [to which the alien



      3   The BIA did not reinstate the 60-day voluntary departure
period that the IJ had granted Hernandez-Lima, as he had failed to
timely submit sufficient proof that he had posted the voluntary
departure bond on which the grant was conditioned. See 8 C.F.R.
§ 1240.26(c)(3)(ii).


                                     - 7 -
would    be    removed]   because     of     the     alien's    race,    religion,

nationality, membership in a particular social group, or political

opinion."      8 U.S.C. § 1231(b)(3)(A).             Hernandez-Lima bears the

burden   of    establishing     his   eligibility         for   this    relief   by

demonstrating that it is "more likely than not" that he will be

persecuted on account of one of the five protected grounds if

removed to Guatemala.         See 8 C.F.R. § 1208.16(b)(2); see also,

e.g., Costa v. Holder, 733 F.3d 13, 16 (1st Cir. 2013) (equating

the standards "more likely than not" and "a clear probability").

Alternatively, he can demonstrate that he has already suffered

such persecution in Guatemala and thereby create a rebuttable

presumption that he will suffer the same upon removal.                      See 8

C.F.R. § 1208.16(b)(1).          "These two methods are, of course,

commonly referred to as past and future persecution."                    Sompotan,

533 F.3d at 68.     Critically, each requires a showing of both harm

sufficient to amount to persecution and a "nexus" between the

alleged persecution and one of the statutorily protected grounds.

Id.

                                      III.

              Substantial evidence supports the BIA's finding that

Hernandez-Lima     did    not   establish          past   persecution,     despite

presenting evidence of three allegedly qualifying experiences.

              First, the BIA had substantial evidence to reject the

claim that the threatening messages he received prior to leaving


                                      - 8 -
Guatemala    in   2001   constituted   persecution.       Hernandez-Lima

testified that he did not receive threats directly; instead, third

parties told him that members of an opposing political group had

said they were going to kill him.        He also testified that his

father had received similar messages over the course of many years

and that such messages never materialized into physical harm to

either of them.4

            Death threats rise to the level of persecution only when

"so menacing as to cause significant actual suffering or harm."

Vilela v. Holder, 620 F.3d 25, 29 (1st Cir. 2010) (quoting Bonilla

v. Mukasey, 539 F.3d 72, 77 (1st Cir. 2008)).         Evidence that such

threats were entirely empty "plainly supports [a] determination"

that they did not meet that standard.      Ruiz v. Mukasey, 526 F.3d

31, 37 (1st Cir. 2008).      Presented with evidence that threats of

physical harm were never fulfilled -- "a pertinent datum . . .

deserving of weight," id. -- and a total dearth of evidence that

they caused any non-physical harm or suffering to weigh against

it, the BIA had a substantial basis for concluding that Hernandez-




     4    Hernandez-Lima's assertion that he "testified that
before he came to the United States for the first time, he was
shot . . . by political opponents" mischaracterizes the record
evidence. Hernandez-Lima never testified to that effect; to the
contrary, he testified that he left Guatemala in June 2001 and
that the shooting occurred in September 2004, during his second
trip back to Guatemala.


                                 - 9 -
Lima failed to meet his burden of proving that the threats he

received were sufficiently menacing.

            Importantly,   we    do     not    read   the   BIA's   opinion    as

suggesting that an applicant for relief from removal claiming to

have been persecuted by threats is required to make a showing of

physical harm.    Such a per se rule would directly conflict with

our precedent.    See, e.g., Ruiz, 526 F.3d at 37 ("[A]n applicant

. . . is not obliged to show the infliction of physical harm in

order to carry her burden of proving past persecution.").                     We

reiterate simply that the absence of physical harm weighs against

a finding that threats amounted to persecution.                     While never

dispositive, this factor may be determinative where, as here, it

substantially    outweighs      any    countervailing       evidence    of   non-

physical harm or suffering.       Reasonable factfinders may differ in

how much weight they assign the absence of physical harm in a given

case, but as we have said, “hollow threats, . . . without more,

certainly do not compel a finding of past persecution."                Moreno v.

Holder, 749 F.3d 40, 44 (1st Cir. 2014) (emphasis added) (citations

omitted).

            Second, the BIA had substantial evidence to reject the

claim that the September 2004 shooting occurred on account of

either proffered protected ground.             Hernandez-Lima testified that

he did not know who shot him or why they did it.                       He merely

speculated that the shooters may have targeted him for his past


                                      - 10 -
political activities and in relation to the extortion of his family

members.

           An alien bears the burden of differentiating his alleged

persecutors     from   "common    criminals"      by   establishing   a   nexus

between the harm they inflicted and a protected ground.               Lopez de

Hincapie, 494 F.3d at 219.          Thus, while Hernandez-Lima did not

need to identify his attackers, he did need "to furnish some

credible evidence of the[ir] motivation."              Id.; cf. Cordero-Trejo

v. INS, 40 F.3d 482, 488 (1st Cir. 1994) (vacating a BIA decision

denying relief where the attackers' identities were unknown but

their motivation was reflected in their mid-attack demands that

the petitioner discontinue his political activities).

           In    Lopez   de     Hincapie,    we    found   the    petitioner's

testimony as to what "she thought" motivated her antagonists

insufficient to carry her burden and certainly insufficient to

"compel a finding that the [alleged persecution was] in any way

associated      with   either    political     opinion     or    social   group

membership."     494 F.3d at 219.      Hernandez-Lima similarly offered

only unsupported theories as to motivation and thus failed to build

a record that compelled a finding in his favor.                  See Morgan v.

Holder, 634 F.3d 53, 59 (1st Cir. 2011) ("[A]n alien's speculation

or conjecture, unsupported by hard evidence, cannot compel a

finding of the necessary link between alleged persecution and a

statutorily protected ground.").        The BIA was free to reject his


                                    - 11 -
speculation and to conclude that he failed to establish the

requisite nexus.

           Third, the BIA had substantial evidence to reject the

claim that, through the extortion and violence that some of his

relatives experienced, Hernandez-Lima suffered from persecution on

account of his membership in a particular social group, defined as

"members of a family who were persecuted by gang members."           To

prevail on such a claim, Hernandez-Lima needed to establish, inter

alia, that his relatives were harmed because of their family

membership.    See Ruiz, 526 F.3d at 38.          However, he merely

testified that they were extorted for money and alluded in his

brief to the belief that they had been targeted as a family.

           Here, again, Hernandez-Lima offered only an unsupported

theory that any harm he suffered was on account of a protected

ground.    And again, the BIA was not compelled to accept his

speculation.   See Lopez v. Lynch, 626 F. App'x 12, 16 (1st Cir.

2015)   (unpublished   opinion)   (testimony   that   the   petitioner's

brother and cousins were killed and that his brother-in-law was

kidnapped, without more, "[did] not compel the conclusion 'that

the unfortunate experiences undergone by the petitioner and [his]

family were more than isolated occurrences, unrelated to family .

. . membership'" (second alteration in original) (quoting Ruiz,

526 F.3d at 37)).




                                  - 12 -
          Moreover, a threat that solicits money "invite[s] the

inference that [its maker acts out] of greed, not because of [the

petitioner's] political opinion or membership in a particular

social group."   Lopez de Hincapie, 494 F.3d at 219.   The BIA made

precisely that inference when it concluded that Hernandez-Lima's

relatives were victims of extortion by criminal gangs who sought

money rather than to harm them because of their family membership.

That inference was especially plausible in light of Hernandez-

Lima's failure to marshal any evidence inconsistent with it.   See

id.   The BIA's choice of a plausible inference "is by definition

supported by substantial evidence."    Ruiz, 526 F.3d at 37.

          Substantial evidence also supports the BIA's finding

that Hernandez-Lima did not establish a clear probability of future

persecution.     Because his argument that he would suffer from

further threats, violence, and extortion of the kind he experienced

in the past failed on the basis of the BIA's reasonable finding

that those incidents did not qualify as persecution on account of

a protected ground, all that remained was his freestanding claim

of exposure to widespread crime in Guatemala.    The BIA correctly

determined that such a claim fails the nexus requirement.

          At most, Hernandez-Lima established that he faced a risk

of danger from general conditions of strife to which all would be

vulnerable, not a clear probability that he would be victimized on

account of a protected ground. See Archila v. Holder, 495 F. App'x


                              - 13 -
98, 101 (1st Cir. 2012) (unpublished opinion).      This is true even

if the fact that Hernandez-Lima is, as he suggests, "well-known"

and perceived as "wealthy" would make him more likely than others

to   be   victimized.   After   all,     susceptibility   to   "economic

terrorism" and other crimes is not a protected ground.            López-

Castro v. Holder, 577 F.3d 49, 54 (1st Cir. 2009).             Therefore,

there is no basis for upsetting the BIA's conclusion. See Archila,

495 F. App'x at 101 ("Although [the petitioner's] fear of returning

to the violent conditions that plague Guatemala is understandable,

the absence of the requisite statutory nexus is fatal to . . . his

. . . withholding of removal claim[].").

            The petition for review is denied.




                                - 14 -
