                Not for Publication in West's Federal Reporter

          United States Court of Appeals
               For the First Circuit

No. 09-1473

                     ESVIN ANIBAL REYES BETETA,

                               Petitioner,

                                     v.

              ERIC H. HOLDER, JR., Attorney General,

                               Respondent.


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


                                  Before

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


     Stephen M. Born and Mills and Born for petitioner.
     Jessica Segall, Trial Attorney, Office of Immigration
Litigation, Tony West, Assistant Attorney General, Civil Division,
and Leslie McKay, Assistant Director, Office of Immigration
Litigation, for respondent.



                           January 21, 2011
             HOWARD, Circuit Judge.           Esvin Anibal Reyes Beteta, a

Guatemalan national, petitions for review of an order of the Board

of Immigration Appeals (BIA) affirming an immigration judge's (IJ)

decision to deny his application for withholding of removal.                        The

petition is denied.

                                        I.

             Reyes     entered    the     United          States      illegally      in

approximately May 2002.          Removal proceedings against him were

initiated through a Notice to Appear on May 24, 2005, charging him

with entering the United States without inspection.                    See 8 U.S.C.

§    1182(a)(6)(A)(i).        Reyes   conceded          removability        but   sought

withholding of removal.1

             Reyes's   testimony,     which       the    IJ   found    credible      for

purposes of rendering a decision, may be briefly summarized.

Reyes, born in October 1983, testified that he was a young child

during the Guatemalan civil war in the 1980s.                 During that time two

of    his   cousins    were   murdered       by   armed       men,    and    an   uncle

disappeared.     In addition, guerillas took some of his parents'

land, placing the family in fear and causing them to work their

farmland during the day and sleep in nearby mountains at night.




       1
      Reyes also sought asylum, which the IJ denied as a matter of
law after finding that Reyes's untimely filing was not excused by
changed or extraordinary circumstances.     The BIA affirmed that
decision, and the petitioner has not pursued his asylum claim here.

                                        -2-
            Reyes left his village in 1997 and moved to Guatemala

City, where he worked as a street vendor for two years.       During

this time, he was harassed by gang members who would steal his

goods and money, but they did not steal from those who paid them

off.   He later worked in a store in Guatemala City.   He returned to

his village in December 2001, after gang members attempted to rob

the store, threatened him when he defended the store, and later

returned to look for him in retaliation for his efforts.          He

remained at his family's farm until he came to the United States in

May 2002.

            Reyes testified that since he has been in the United

States, family members in Guatemala have told him that they have

been threatened and harassed because gang members knew that he was

living and working in the United States.   He also testified that he

fears that he will be killed by gang members or ex-guerillas if he

returns to Guatemala because he resisted them while in Guatemala

City and because he will be presumed to have money based on his

time in the United States.   Reyes also testified that there is no

safe place for him in Guatemala, as the police do not protect poor

people from gang violence.     Neither Reyes nor his family ever

reported any of their violent interactions to police because, he

testified, the police were corrupt and fearful of stopping gang

activity.




                                -3-
            At the conclusion of the hearing the IJ denied Reyes's

application on the grounds that he had failed to establish either

past persecution or a threat of persecution if he returned to

Guatemala.     The IJ found that Reyes's treatment in Guatemala did

not rise to the level of persecution, but was instead the by-

product   of   gang    members'      motivation    to    enrich   themselves     by

stealing.

            Similarly, the IJ found that Reyes failed to show that he

would be unable to avoid similar confrontations upon returning to

Guatemala, noting that Reyes was unharmed after he returned from

Guatemala City to his parents' farm.           Moreover, to the extent that

Reyes would, as he feared, be targeted upon his return, the

motivation for such hostility would again be monetary gain.                    The

application      for   withholding     of   removal     was   therefore   denied,

although Reyes's request for voluntary departure was granted.

            Reyes appealed to the BIA, which affirmed the IJ's

decision on essentially the same grounds relied upon by the IJ.

The BIA first found that Reyes had failed to demonstrate that he

had been persecuted in the past, both because he did not recall

that he suffered any difficulties personally that rose to the level

of persecution, and because the theft and extortion that took place

in   Guatemala    City   did   not    constitute      persecution   based   on   a

protected ground.




                                        -4-
              The BIA also rejected Reyes's claim that he would be

persecuted upon his return to Guatemala based on his status as a

Guatemalan returning from the United States.                The BIA found that

gang members and ex-guerillas would target anyone who might be a

potential source of money or valuables, and would not limit their

criminal activity to Guatemalans returning from the United States.

The   BIA    also    found   that    Reyes's   opposition    to   the   criminal

activities of gangs and ex-guerillas is not a form of political

opinion protected by immigration laws.              This appeal followed.

                                        II.

              When the BIA has adopted an IJ's ruling, but has also

examined some of the IJ's conclusions, we review both the BIA's and

IJ's opinions.         Matovu v. Holder, 577 F.3d 383, 386 (1st Cir.

2009).      Our scope of review is limited.         We appraise the BIA's and

IJ's findings of fact under the "substantial evidence" standard,

accepting them as long as they are "supported by reasonable,

substantial, and probative evidence on the record considered as a

whole."      Sharari v. Gonzalez, 407 F.3d 467, 473 (1st Cir. 2005).

We review the BIA's legal determinations de novo, albeit according

"substantial        deference   to    the   BIA's    interpretations    of   the

underlying statutes and regulations according to administrative law

principles."        Scatambuli v. Holder, 558 F.3d 53, 58 (1st Cir.

2009).




                                        -5-
            To be eligible for withholding of removal, Reyes must

show    either   that    he   has   suffered   past   persecution     due   to   a

statutorily      protected      ground,      thus   creating     a   rebuttable

presumption that he may suffer future persecution upon return to

Guatemala; or he must demonstrate a clear probability that he will

be persecuted on account of a protected ground when he returns.

Lopez-Castro v. Holder, 577 F.3d 49, 52 (1st Cir. 2009) (citing Da

Silva v. Ashcroft, 394 F.3d 1, 4 (1st Cir 2005)).              The statutorily

protected grounds are race, religion, nationality, membership in a

particular social group, and political opinion.              Lopez-Castro, 577

F.3d at 52; 8 C.F.R. § 208.13(b)(1).

            To qualify as persecution, a petitioner's experience

"must    rise    above   unpleasantness,       harassment,     and   even   basic

suffering."      Decky v. Holder, 587 F.3d 104, 110 (1st Cir. 2009).

Moreover, "[p]ersecution, within the context of the immigration

statutes, does not include all treatment that our society regards

as unfair, unjust, or even unlawful or unconstitutional."                    Id.

(quoting Kho v. Keisler, 505 F.3d 50, 58 (1st Cir. 2007)).

            The record supports the BIA's conclusion regarding both

past and future persecution.           While the abduction and murder of

Reyes's cousins and uncle prior to his arrival in the United States

is disturbing, the record supports the BIA's conclusion that Reyes

failed to establish that his past hardships rose to the level of




                                       -6-
persecution.2       It is undisputed that he witnessed none of the

violence, does not remember his uncle or cousins, and does not

remember hiding in the mountains.              He testified that his family

"suspects" that guerillas -- now gang members -- were behind his

relatives' deaths.          Thus, even if we were to assume that the

killings constituted persecution against Reyes, "[w]ithout knowing

who was responsible for the killings or what had prompted them, it

is no more than a guess that a nexus existed between the deaths and

a statutorily protected ground."             Lopez-Castro, 577 F.3d at 52.

            As to the probability of future persecution, we first

note that Reyes acknowledged in his testimony that the guerillas

are no longer a force in Guatemala.            This blunts most of the impact

of his claim of future persecution. The petitioner asserts that he

is part of protected social groups consisting of "Guatemalan street

vendors who have resisted gangs," "expatriates returning from

working in the United States and are perceived to have wealth," and

"Guatemalans whose families have resisted the guerillas."                 But the

testimony is clear that the gang action was in no way a targeted

activity; it was instead a widespread form of organized extortion.

We   have   held   that    a    "risk   of   victimization   through    economic

terrorism    is    not    the   functional     equivalent    of   a   statutorily

protected ground . . . ."          Lopez-Castro, 577 F.3d at 54; see also


      2
      Reyes does not challenge the BIA's conclusion that the theft
of his money and goods while he worked as a street vendor did not
constitute persecution.

                                         -7-
Ruiz v. Mukasey, 526 F.3d 31, 37 (finding that threats motivated by

greed do not implicate a protected ground); Lopez de Hincapie v.

Gonzalez, 494 F.3d 213, 219-220 (1st Cir. 2007) (common criminals'

attempts to extort money not connected to protected ground).

Finally, Reyes also testified that the gangs that robbed him in

Guatemala City did not follow him back to his parents' farm when he

returned there, because he "was already a grown up, not like six

years before."   This suggests that at most, while Reyes was an easy

target as a youth, adulthood has lessened his vulnerability to the

point where future victimization is far from probable.

          Against this legal and factual backdrop, we have little

trouble affirming the decision of the BIA. The petition for review

is therefore denied.3




     3
      Given the basis for our disposition, we need not address
Reyes's argument that the BIA improperly employed a "social
visibility" test in determining whether any of Reyes's proposed
groups constitute a "social group" within the meaning of the
immigration laws. See Mendez-Barrera v. Holder, 602 F.3d 21, 25-27
(1st Cir. 2010). In any event, we have explicitly affirmed the
relevance of the social visibility inquiry to social group
analysis. Faye v. Holder, 580 F.3d 37, 41 (1st Cir. 2009).

                                -8-
