               Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit

No. 10-1120

                      SERGIO DAVID GONZÁLEZ,

                              Petitioner,

                                    v.

      ERIC H. HOLDER, JR., UNITED STATES ATTORNEY GENERAL,

                              Respondent.


                PETITION FOR REVIEW OF AN ORDER

              OF THE BOARD OF IMMIGRATION APPEALS


                                 Before

                     Lipez, Selya and Howard,
                          Circuit Judges.



     Randy Olen and Robert D. Watt, Jr., on brief for petitioner.
     Tony West, Assistant Attorney General, Civil Division, Cindy
S. Ferrier, Senior Litigation Counsel, and Joseph A. O'Connell,
Trial Attorney, Office of Immigration Litigation, on brief for
respondent.



                            August 2, 2011
           Per Curiam.   The petitioner, Sergio David González, is a

Guatemalan national.     He seeks judicial review of a final order of

the Board of Immigration Appeals (BIA), which affirmed an adverse

decision   of   an   immigration     judge   (IJ).    After   careful

consideration, we deny the petition.

           We draw the facts largely from the petitioner's testimony

in the immigration court.    The petitioner worked as a cabinetmaker

in Guatemala City.     In the fall of 1989, he agreed to custom-make

cabinets for a customer (referred by a friend).        After several

weeks, the customer grew impatient and demanded that the petitioner

complete the job quickly.      The petitioner hurried but, when he

delivered the finished cabinets, the customer complained about the

delay and refused to pay.    The customer then brandished a revolver

and threatened to kill the petitioner unless he went away.

           Although the petitioner departed posthaste, the customer

apparently was not appeased. He repeatedly called the petitioner's

home and made further threats.

           Concerned for his safety, the petitioner approached a

friend who worked as a captain in the police force.      The captain

told him that the customer belonged to a unit of the Guatemalan

secret police and advised him against taking any action.         Soon

afterwards, the petitioner, professing a fear that the disappointed

customer would harm him, left Guatemala.




                                   -2-
          The petitioner entered the United States in 1990, by

means of a B-2 visitor's visa.           He overstayed the permitted

visitation period without authorization and eventually settled in

Pawtucket, Rhode Island.

          In   1994,   the    petitioner   applied   for   asylum    and

withholding of removal.      Inexplicably, eleven years passed before

immigration authorities conducted an asylum interview on September

21, 2005. The following month, the Department of Homeland Security

commenced removal proceedings.

          At his initial appearance before the IJ in February of

2007, the petitioner conceded removability.          Subsequently, he

updated his application for asylum and withholding of removal by

checking the appropriate boxes on a standard form.     The petitioner

first mentioned the allegedly menacing customer in this updated

application.

          Following a hearing at which the petitioner testified,

the IJ found his testimony not credible and denied relief.1         As to

the asylum claim, the IJ found that the feared harm arose out of a

"personal disagreement" rather than persecution, and that the

petitioner had failed to establish a well-founded fear of future




     1
       Because the petitioner's claims fail on other grounds, we
need not assess the supportability of the IJ's adverse credibility
determination.

                                   -3-
persecution based on a statutorily protected ground.2                        The IJ

jettisoned   the       claim    for    withholding    of     removal    on   similar

reasoning.       And although the petitioner had never raised a claim

for protection under the United Nations Convention Against Torture

(CAT), the IJ preemptively rejected such a claim.

            The petitioner appealed unsuccessfully to the BIA.                     In

affirming,       the    BIA    eschewed    reliance     on    the   IJ's     adverse

credibility determination and assumed the truth of the raw facts

set   out   in    the    petitioner's      testimony.         But    despite      that

assumption, the BIA found that the petitioner had failed to satisfy

the criteria for eligibility for asylum.                     It made a similar

disposition of the withholding of removal claim.                    Turning to the

nascent CAT claim, the BIA overlooked the procedural default,

independently      reviewed      the    record,   and      determined      that    the

petitioner did not satisfy the requirements for CAT protection.

Finally, the BIA considered and rejected a contention that a book

review chronicling the slaying of a Guatemalan bishop, submitted by

the petitioner, lent credence to the petitioner's case.

            This timely petition for judicial review followed.                      In

it, the petitioner argues that the BIA erred in denying his asylum,




      2
       In general, applications for asylum must be brought within
one year of an alien's entrance into the United States or by April
1, 1998 (whichever date is later). 8 U.S.C. § 1158(a)(2)(B); 8
C.F.R. § 1208.4(a)(2)(ii). Because the petitioner first filed for
asylum in 1994, his asylum request is timely.

                                          -4-
withholding of removal, and CAT claims.    He also renews his plaint

concerning the probative value of the book review.

           Where, as here, the BIA adopts portions of the IJ's

decision and adds its own gloss, we review the BIA's and IJ's

decisions as a unit.    Villa-Londono v. Holder, 600 F.3d 21, 23 (1st

Cir. 2010).      We assess an agency's findings of fact under the

familiar substantial evidence rubric, which requires us to uphold

those findings as long as they are "supported by reasonable,

substantial, and probative evidence on the record considered as a

whole."    INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992) (quoting

8 U.S.C. § 1105a(a)(4)).    "Absent an error of law, we will reverse

only if the record compels a conclusion contrary to that reached by

the [BIA]."     Mariko v. Holder, 632 F.3d 1, 5 (1st Cir. 2011).

           Against this backdrop, we start with the asylum claim.

To be eligible for asylum, an alien must establish his status as a

refugee.    8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(B)(i); 8 C.F.R.

§ 1208.13(a).    A refugee is a person who is unwilling or unable to

repatriate due to a well-founded fear of future persecution on

account of one of five statutorily protected grounds: "race,

religion, nationality, membership in a particular social group, or

political opinion."     Morgan v. Holder, 634 F.3d 53, 57 (1st Cir.

2011) (quoting 8 U.S.C. § 1101(a)(42)(A)).        A showing of past

persecution creates a rebuttable presumption that an alien harbors




                                  -5-
a well-founded fear of future persecution.     Nikijuluw v. Gonzales,

427 F.3d 115, 120 (1st Cir. 2005).

           In the immigration context, "persecution" is a term of

art.   To qualify, an alien must show a quantum of harm beyond "mere

discomfiture, unpleasantness, harassment, or unfair treatment."

Id.; see Bocova v. Gonzales, 412 F.3d 257, 263 (1st Cir. 2005).

Furthermore, that harm must be linked in some meaningful way to the

government.   Morgan, 634 F.3d at 57.

           Measured against these benchmarks, the infirmities in the

petitioner's asylum claim are manifest. First and foremost, he has

failed to hitch his claim to any statutorily protected ground.

While he asserts that he is a member of a particular social group,

he has not made any effort to describe the contours of the social

group in which he asserts membership.

           It is clear beyond hope of contradiction that, at a

minimum, social group members "must share a common, immutable

characteristic, either innate or based on past experiences."       Faye

v. Holder, 580 F.3d 37, 41 (1st Cir. 2009).          The petitioner's

conclusory allegation does not satisfy this requirement, and the

record   contains   no   specifics   that   might   fill   the   gap.

Consequently, his asylum claim founders.     See id. at 42; López de

Hincapie v. Gonzales, 494 F.3d 213, 218-19 (1st Cir. 2007).

           There is a second independently sufficient ground that

supports the BIA's denial of asylum: the petitioner has not shown


                                 -6-
a   well-founded    fear    of   persecution.     A    well-founded   fear   of

persecution "must be both subjectively genuine and objectively

reasonable."    Morgan, 634 F.3d at 58.         Such a fear is objectively

reasonable only if a reasonable person in the alien's circumstances

would harbor it. Id.; Aguilar-Solis v. INS, 168 F.3d 565, 572 (1st

Cir. 1999).     Here, substantial evidence supports the agency's

determination      that    the   petitioner's   fear    is   not   objectively

reasonable.

           The petitioner alleges that the threats made by his

quondam customer give rise to his fear.               The record shows that

these threats occurred over eighteen years before the petitioner's

hearing in the immigration court, and the petitioner has not

proffered any evidence suggesting that his tormentor is still

alive, or still in Guatemala, or still in a position to wreak

vengeance, or still holds a grudge.         Eighteen years would be a long

time to brood over a delayed delivery of furniture.                Given this

hiatus and the utter lack of any evidence suggesting a current

threat, the agency's conclusion that the petitioner's claimed fear

is objectively unreasonable is supported by substantial evidence.3

See, e.g., Touch v. Holder, 568 F.3d 32, 40-41 (1st Cir. 2009)

(upholding denial of asylum where claimant's fear was based on


      3
       The fact that the customer has not harmed the petitioner's
siblings, children, or other family members (all of whom still
reside in Guatemala) further belies the reasonableness of the
petitioner's fear. See Bakuaya v. Mukasey, 533 F.3d 39, 41 (1st
Cir. 2008) (per curiam); Aguilar-Solis, 168 F.3d at 573.

                                      -7-
events that occurred seven years prior to BIA's decision); Jiang v.

Gonzales, 474 F.3d 25, 31 (1st Cir. 2007) (similar; five-year

interval); cf. Bonilla-Morales v. Holder, 607 F.3d 1132, 1139-40

(6th Cir. 2010) (denying CAT claim where alien failed to establish

that alleged tormentor was still alive); Chahid Hayek v. Gonzales,

445   F.3d   501,   508-09   (1st    Cir.   2006)   (per   curiam)   (finding

petitioner's fear based on events that took place eleven years

earlier insufficient to ground CAT claim).

             In an effort to blunt the force of this reasoning, the

petitioner    points   to    the    aforementioned   book    review.    This

document, which concerns a different individual in materially

different circumstances, does not change the decisional calculus.

The tale is simply too attenuated to generate an objectively

reasonable fear of persecution on the petitioner's part.             See Seng

v. Holder, 584 F.3d 13, 19-20 (1st Cir. 2009) (concluding that

allegations of human rights abuses, without any particularized

connection to the petitioner, are insufficient, in themselves, to

ground a well-founded fear of persecution).

             This brings us to the petitioner's quest for withholding

of removal.     Eligibility for withholding of removal requires that

an alien satisfy a standard that is similar to, but more stringent

than, the standard for asylum.        Villa-Londono, 600 F.3d at 24 n.1;

Rodriguez-Ramirez v. Ashcroft, 398 F.3d 120, 123 (1st Cir. 2005).

The former requires a "clear probability of persecution," whereas


                                      -8-
the latter requires only a well-founded fear of persecution.              Ang

v. Gonzales, 430 F.3d 50, 58 (1st Cir. 2005).

           The difference in these standards is telling when asylum

and withholding of removal claims are premised on the same nucleus

of   operative   facts.   In   that   event,    the   alien's   failure    to

establish eligibility for asylum on the merits necessarily dooms

his counterpart claim for withholding of removal.          Villa-Londono,

600 F.3d at 24 n.1; Rodriguez-Ramirez, 398 F.3d at 123.           So it is

here.

           Finally, the BIA ruled that even if a CAT claim was

properly in the case, it would fail.      We follow the BIA's lead and

assume, for argument's sake, that a CAT claim was seasonably

raised.   Even so, there is a threshold problem: the argument that

the petitioner advances in this court rests on a different theory

of CAT protection than the argument that he made to the BIA, where

he argued that the police captain's admonition to him showed that

the Guatemalan government acquiesced in violence by the secret

police.   Here, by contrast, the petitioner for the first time ties

Guatemalan   secret   police   activity    to    gang    violence.        The

petitioner's failure to advance this theory before the BIA is

fatal.    See Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004)

(explaining that "theories not advanced before the BIA may not be

surfaced for the first time in a petition for judicial review of

the BIA's final order").


                                  -9-
            In   all   events,   the    petitioner    has   not   carried   his

evidentiary burden with respect to the CAT claim.                 To establish

eligibility for CAT protection, an alien must show that it is "more

likely than not" that he would be tortured if removed to his

homeland.    8 C.F.R. § 1208.16(c)(2).          For this purpose, "torture"

is an intentional act that inflicts severe physical or mental pain

or suffering upon a person.       Id. § 208.18(a)(1).       The torture must

be "inflicted by or at the instigation of or with the consent or

acquiescence of a public official or other person acting in an

official capacity."       Chhay v. Mukasey, 540 F.3d 1, 7 (1st Cir.

2008) (quoting 8 C.F.R. § 208.18(a)(1)).

            Given this standard, the petitioner's CAT claim cannot

survive scrutiny.      It rests on sheer speculation; he has not made

a showing that he will, more likely than not, be targeted and

tortured if he returns to Guatemala.             The possibility of harm at

the hands of the secret police is, for the reasons discussed above,

pure speculation. And the mere possibility that he will be exposed

to random violence is not enough.             See Amouri v. Holder, 572 F.3d

29, 35 (1st Cir. 2009); López de Hincapie, 494 F.3d at 221.

            We need go no further. For the reasons elucidated above,

the petition for judicial review is denied.



So Ordered.




                                       -10-
