          United States Court of Appeals
                      For the First Circuit

No. 11-1737

                           MARIA AYALA,

                           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,
               Selya and Thompson, Circuit Judges.



     Stephen M. Born and Mills and Born, Attorneys at Law on brief
for petitioner.
     Tony West, Assistant Attorney General, Civil Division, Ernesto
H. Molina, Jr., Assistant Director, and Joanna L. Watson, Trial
Attorney, Office of Immigration Litigation, on brief for
respondent.


                          June 27, 2012
            THOMPSON, Circuit Judge.           Maria Ayala, a Guatemalan

native, petitions for review of a final removal order.              She argues

that the immigration courts committed several legal errors when

they denied her asylum petition.            We agree with the immigration

courts, however, that Ayala is not eligible for asylum because she

has proven neither past persecution nor any likelihood of future

persecution on account of a protected ground.              These conclusions

sink Ayala's asylum claim and lead us to deny her review petition.

            We take the facts mostly from Ayala's testimony before

the   immigration   judge   (IJ),     who    found   her   wholly   credible,

supplementing with just a touch of history for context.

            Ayala   was   born   in   1957,    about   three    weeks   after

Guatemala's president Carlos Castillo Armas was assassinated.             The

decades that followed were tumultuous ones for the country, with

guerilla violence gradually becoming more and more common until

peace finally arrived in 1996.

            Ayala's family was not immune from that violence.              In

1981, guerilla fighters executed her cousin Ugo Castillo for

refusing to support them.        In 1983, guerillas first threatened,

then kidnapped, and eventually killed another of her cousins, Oscar

Castillo.   Later in the 1980s, guerillas tied up her grandparents,

robbed them, and threatened to kill them; shaken, both died soon

thereafter.    In 1993, Ayala fled to the United States, leaving

behind two children, ages fourteen and ten.


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            Ayala arrived in California on April 21, 1993.                    A few

months    later,    she    filed   an   affirmative       petition    for    asylum,

withholding of removal, and protection under the Convention Against

Torture (CAT).           At some point she came to make her home in

Providence, Rhode Island.

            Then    in    September     2006,   the   Department      of    Homeland

Security issued Ayala a Notice to Appear (NTA) charging her with

removability because she had not been admitted into the United

States.    Ayala conceded removability but pressed her affirmative

claims for relief.          After an evidentiary hearing, the IJ found

Ayala credible but denied her relief because she could not prove

past persecution, establish a reasonable fear of future persecution

on account of a protected ground, or meet the more difficult tests

for withholding of removal and CAT protection.                       The Board of

Immigration Appeals (BIA) affirmed, and Ayala has appealed to us,

raising only asylum-related issues and abandoning her withholding-

of-removal and CAT-protection claims.

            We     review    immigration        courts'     "determinations       of

statutory eligibility for relief from deportation" for substantial

evidence, meaning the decisions are conclusive as long as they are

"supported by reasonable, substantial, and probative evidence on

the record considered as a whole."              Hasan v. Holder, 673 F.3d 26,

33 (1st Cir. 2012) (internal quotation marks omitted).                     We review




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legal questions de novo.        Albathani v. INS, 318 F.3d 365, 372 (1st

Cir. 2003).     And we have jurisdiction under 8 U.S.C. § 1252.

           We   begin    with   a   brief    outline    of    asylum   law.1     A

petitioner may be eligible for asylum if she can demonstrate that

she is a refugee.    8 U.S.C. § 1158(b)(1)(A).          A refugee is a person

who has a well-founded fear that, if she is returned to her home

country, she will suffer persecution on account of a legally

protected ground.       Id. § 1101(a)(42).      Proof of past persecution

creates a presumption of future persecution that the government may

rebut.    8 C.F.R. § 1208.13(b)(1).          Persecution normally involves

"severe   mistreatment     at    the   hands    of     [a    petitioner's]     own

government," but it may also arise where "non-governmental actors

. . . are in league with the government or are not controllable by

the government." Silva v. Ashcroft, 394 F.3d 1, 7 (1st Cir. 2005).

That should provide sufficient context for today's purposes; we

move on to Ayala's arguments.

           Ayala first claims that the guerillas' attacks on her

cousins and grandparents constitute past persecution.                    But to

constitute past persecution, the guerillas' acts must have been "on

account of" some legally protected ground.             Ayala has not squarely

addressed this requirement.         The closest she comes is claiming the



     1
       The REAL ID Act of 2005, Pub. L. No. 109-13, 119 Stat. 302,
amended some provisions of asylum law; the parties agree that these
amendments do not apply here because Ayala's petition predates the
Act.

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existence of a legally protected "particular social group" -- "a

family that opposed guerilla warriors" -- that would presumably

encompass her cousins, her grandparents, and Ayala herself.                  But

there is no evidence to support the claim that guerillas targeted

Ayala's family members on account of their membership in the

family.   And the absence of any such evidence defeats her claim of

past persecution on account of a legally protected ground.                    See

Hincapie v. Gonzales, 494 F.3d 213, 219 (1st Cir. 2007) (it is the

petitioner's burden "to furnish some credible evidence of the

motivation underlying" alleged persecution).

            Essentially the same analysis disposes of Ayala's future-

persecution arguments.          For Ayala to be a refugee eligible for

asylum, she must demonstrate that the persecution she fears will be

on account of a legally protected ground. Ayala claims she will be

persecuted on account of her membership in "a family that opposed

guerilla warriors," but we have already said there is no evidence

to   support    this   claim.     She    also    claims   membership    in    the

"particular social group" of "perceived . . . wealthy Guatemalan[s]

returning      after   having    spent    time   abroad."      But     we    have

consistently rejected asylum claims based on perceived wealth

because of a petitioner's connections to the United States, and we

are bound by this precedent.        Lopez Perez v. Holder, 587 F.3d 456,

463 (1st Cir. 2009) (holding that a Guatemalan petitioner's fear of

"being targeted by criminal elements as an emigré from the United


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States" was "a non-factor in analyzing the prospect of future

persecution"); López Castro v. Holder, 577 F.3d 49, 54 (1st Cir.

2009) (petitioner's claim of exposure to "future attacks by gang

members in Guatemala because he will be perceived as wealthy . . .

fails to establish an objectively reasonable basis for a fear of

future persecution premised on a statutorily protected ground");

Hincapie, 494 F.3d at 219 (threats "prompted by a desire to extort

money" are not "connected to a statutorily protected ground" for

asylum purposes).    We therefore hold that Ayala has not shown any

likelihood of future persecution on account of her membership in a

protected group.

            There is one final argument on the table: Ayala says that

even if she has no well-founded fear of persecution on account of

a protected ground, she may still be entitled to relief under 8

C.F.R. § 208.13(b)(1)(iii)(B).       That code provision allows for

asylum where "there is a reasonable possibility that [a petitioner]

may suffer other serious harm upon removal to [her home] country."

Neither party addresses the argument in any detail, and we can

dispatch it quickly: § 208.13(b)(1)(iii)(B) applies only to "an

applicant   described   in   paragraph   (b)(1)(i)   of   this   section";

§ 208.13(b)(1)(i) describes an applicant "found to be a refugee on

the basis of past persecution" who is nevertheless ineligible for

asylum due, e.g., to changed country conditions; and we have said




                                  -6-
there   was   no   past     persecution        here.     By     its   terms,

§ 208.13(b)(1)(iii)(B) does not apply to Ayala.

          Ayala    has    not    established    that   she    suffered   past

persecution or that she has a well-established fear of future

persecution on account of a protected ground; she is therefore

ineligible for asylum.          Accordingly, we deny the petition for

review and affirm the final order of removal.




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