          United States Court of Appeals
                      For the First Circuit


No. 16-1774

                 MARIO GILBERTO MORALES-MORALES,

                           Petitioner,

                                v.

                    JEFFERSON B. SESSIONS, III,
              Attorney General of the United States,*

                           Respondent.


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


                              Before

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


     George Charles Maroun, Jr. for petitioner.
     Allison Frayer, Trial Attorney, Office of Immigration
Litigation, Civil Division, United States Department of Justice,
Benjamin C. Mizer, Principal Deputy Acting Assistant Attorney
General, M. Jocelyn Lopez Wright, Acting Assistant Director,
Office of Immigration Litigation, and Melissa Neiman-Kelting,
Senior Litigation Counsel, Office of Immigration Litigation, for
respondent.




     * Pursuant to Fed. R. App. P. 4(c)(2), Attorney General
Jefferson B. Sessions, III has been substituted for former Attorney
General Loretta E. Lynch as the respondent.
May 22, 2017
           BARRON, Circuit Judge.          Mario Gilberto Morales-Morales

("Morales") petitions for review of a decision of the Board of

Immigration Appeals ("BIA") denying Morales's requests for asylum,

withholding   of   removal,   and    protection       under   the    Convention

Against Torture ("CAT").      We deny the petition.

                                     I.

           Morales is a citizen of Guatemala. He entered the United

States unlawfully in 2012.        After immigration authorities began

removal   proceedings   against     him,    Morales    applied      for   asylum,

withholding of removal, and protection under the CAT.

           In the proceedings before the Immigration Judge ("IJ"),

Morales offered the following account in testimony that the IJ

determined to be credible.        Morales joined the Partido Party in

2011 and began distributing the party's fliers in Guatemala City

approximately twice a week.       Roughly a year later, Morales, along

with four other members of the Partido Party, was beaten by members

of a different political party -- the Lider Party -- who retaliated

against Morales for his refusal to join their ranks and help them

with "publicity."    These members of Lider beat him "unconscious,"

such that Morales required hospitalization.               They also broke his

arm.

           After   Morales    returned      home   from    the   hospital,     he

received "threatening phone calls." Morales's uncle, the IJ noted,

was also a Partido member and had "disappeared in May of 2011."


                                    - 3 -
The uncle, too, "had been receiving threatening phone calls and

his whereabouts are still unknown."

            Morales did not report either the beating or the phone

calls to the police because "the police are corrupt" and because

he feared retaliation from Lider partisans. Morales also testified

that he did not inform the police about the beating because "the

people who broke his arm would go to jail, but when they got out,

they would seek retribution."

            The IJ found the following additional facts.        First,

Morales's parents remain in Guatemala, but no longer live in

Guatemala    City,    the   country's   capital.   Second,   Morales's

siblings -- two brothers and a sister -- also continue to reside

in Guatemala.        Third, Morales "had no[] information regarding

whether any harm had befallen" the other members of the Partido

Party who were attacked the same day as Morales.

            Nevertheless, the IJ denied Morales the relief that he

sought.   The IJ first addressed Morales's application for asylum.

Pursuant to 8 U.S.C. § 1158(b)(1)(A), an applicant may be granted

asylum "if the Secretary of Homeland Security or the Attorney

General determines that such alien is a refugee within the meaning

of" 8 U.S.C. § 1101(a)(42)(A).     In turn, § 1101(a)(42)(A) requires

that, to qualify as a refugee, "an applicant must prove either

past persecution or a well-founded fear of future persecution if

repatriated, on account of one of five enumerated grounds: race,


                                  - 4 -
religion, nationality, membership in a particular social group, or

political opinion."         Giraldo–Pabon v. Lynch, 840 F.3d 21, 24 (1st

Cir. 2016) (citing 8 U.S.C. § 1101(a)(42)(A)).

           The      IJ   held    that   Morales    had   not    established   past

persecution in Guatemala. Looking to the "frequency of the alleged

harm," the IJ emphasized that Morales's "one encounter with members

of the Lider Party" -- though it resulted in a severe beating --

"[did] not rise to the level of [past] persecution."                Next, noting

that establishing past persecution "requires evidence that the

government participated in, or at least acquiesced in, the alleged

harm,"   the   IJ    held    that    Morales    had   not     presented   evidence

sufficient to show that the Guatemalan government was unable or

unwilling "to control the conduct of private actors."                The IJ also

concluded that Morales could not establish a likelihood of future

persecution in Guatemala, given that his "parents and siblings

remain unharmed" in that country.           Nor, the IJ stated, did Morales

offer any information about the fate of four other Partido members

who were beaten the same day he was that would tend to suggest

that they were further harmed on the basis of their political

affiliation or beliefs.

           The      IJ    then      rejected      Morales's     application    for

withholding of removal and protection under the CAT.                 Withholding

of removal, the IJ noted, requires meeting a more demanding

standard than the well-founded fear test that governs grants of


                                        - 5 -
asylum.    Thus, the IJ concluded that, in light of the ruling

denying Morales's asylum application, Morales had, by definition,

also failed to satisfy this heightened, clear-probability test for

withholding of removal.   And, the IJ noted, much like the asylum

statute, the CAT and Department of Homeland Security ("DHS")

regulations that implement it require an applicant to demonstrate

that he will be tortured in his home country "by or at the

instigation of or with the consent or acquiescence . . . of a

public official or person acting in official capacity."         In

consequence, the IJ held that Morales could not obtain relief under

the CAT.

           The BIA affirmed the IJ's decision.   The BIA explained

that the "level of mistreatment" Morales was found to have suffered

"does not amount to persecution," and the BIA relied for that

conclusion on our decisions in Cabas v. Holder, 695 F.3d 169, 174

(1st Cir. 2012), Khan v. Mukasey, 549 F.3d 573, 575 (1st Cir.

2008), and Topalli v. Gonzales, 417 F.3d 128, 132 (1st Cir. 2005).

           The BIA also upheld the IJ's "determination that the

respondent did not establish that the authorities in Guatemala are

unable or unwilling to protect him from violence in Guatemala."

The BIA explained that, "[i]n order to qualify as persecution for

purposes of asylum or withholding of removal, an act must be

inflicted either by the government or by individuals or groups the

government is unable or unwilling to control."    But, the beating


                              - 6 -
Morales suffered was perpetrated by private actors, and the BIA

found that Morales had failed to demonstrate that "reporting the

crime to Guatemalan police would be futile."

           The BIA also agreed that Morales did not have a well-

founded   fear   of   future   persecution.   Morales's   parents   are

unharmed, even though they remain in Guatemala.     Likewise, the BIA

agreed that Morales's two brothers also remain unharmed, although

the BIA did not appear to make any finding in that regard with

respect to Morales's sister.1     And, the BIA noted, Morales admitted

that his "Partido Party colleagues and friends who were also

assaulted" on the same day as Morales "remain in Guatemala and

that, to his knowledge, they were not harmed because they moved."

           The BIA then held: "we agree with the Immigration Judge

that the respondent did not meet his burden of proof to show that

his fear of persecution is country-wide and that it is unreasonable



     1 We note that the fact that Morales's family members remain
in Guatemala and have not been harmed does not, by itself,
foreclose a finding that there is "a pattern or practice" in
Guatemala "of persecution of a group of persons similarly situated
to the applicant." 8 C.F.R. § 1208.13(b)(2)(iii) (emphasis added).
Not all family members are "similarly situated." See, e.g., Chen
v. Holder, 551 F. App'x 580, 582-83 (1st Cir. 2013). The "lack of
harm" to remaining family members in these circumstances is
"entitled to weight in the decisional calculus" only where the
family members are "similarly situated" and "the record does not
provide a satisfactory differentiation between [the] petitioner
and similarly-situated family members."     Vasili v. Holder, 732
F.3d 83, 91 (1st Cir. 2013) (internal citations omitted). In this
case, the BIA, to its credit, acknowledged Morales's argument that
his family members were not members of the Partido Party.


                                  - 7 -
to relocate to avoid harm."       Like the IJ, the BIA went on to

address whether Morales could "satisfy the higher burden of proof

required for withholding of removal," and concluded that he could

not.   And the BIA also concluded that Morales could not meet the

requirements for protection under the CAT because the evidence did

"not establish that it is 'more likely than not' that he will be

tortured by or with the acquiescence of a public official, or other

person acting in an official capacity in Guatemala."

          Morales now petitions for review of the BIA's decision.

                               II.

          "Usually, this court confines its review to the BIA's

order that is being challenged . . . . However, when as here, the

BIA adopts the decision of the IJ, and provides some analysis of

its own, [we] review[] both decisions."     Lumataw v. Holder, 582

F.3d 78, 83 (1st Cir. 2009) (quoting Rashad v. Mukasey, 554 F.3d

1, 4 (1st Cir. 2009)).   We treat the rulings below that Morales

has not met his burden of "demonstrat[ing] past persecution" as

"factual determination[s] subject only to the highly deferential

substantial evidence standard."    Id. at 84 (citing INS v. Elías-

Zacarías, 502 U.S. 478, 483-84 (1992)).        Thus, the agency's

decisions "must be upheld if supported by reasonable, substantial,

and probative evidence on the record considered as a whole," and

may be "reversed only if the evidence presented by [the applicant]

was such that a reasonable factfinder would have to conclude that


                              - 8 -
the requisite fear of persecution existed."          Elías-Zacarías, 502

U.S. at 481 (citations omitted).

            An alien who has suffered past persecution is presumed

to have a well-founded fear of persecution and thus to be entitled

to a grant of asylum.        Chen v. Lynch, 814 F.3d 40, 45 (1st Cir.

2016) (quoting Singh v. Holder, 750 F.3d 84, 86 (1st Cir. 2014)).

Morales contends that the BIA erred in concluding that the level

of mistreatment he suffered -- because it involved only a single

beating followed by threatening phone calls -- did not rise to the

level of mistreatment that could qualify as persecution.             And he

attempts to distinguish the cases on which the BIA relied in

concluding otherwise.

               But even if there were some basis for distinguishing

those cases, "[i]n order to qualify as a refugee" on the basis of

past persecution, Morales must also show that the harm he suffered

(assuming it was of a kind that could qualify as persecution) was

"the direct result of government action, government-supported

action,   or    government   unwillingness   or    inability   to    control

private conduct."     Guaman-Loja v. Holder, 707 F.3d 119, 123 (1st

Cir.   2013)    (citation    and   modifications   omitted).        Or,   put

otherwise, he "must demonstrate that the government would have

been unwilling or unable to pursue these lines of redress on the

petitioner's behalf."        Id. at 124 (citation and modifications

omitted).      Yet, despite the fact that the BIA and the IJ ruled


                                    - 9 -
that Morales had failed to make the showing that the harm he had

suffered was attributable to action -- or inaction -- by the

government, Morales makes no argument in his briefing to us as to

how either the BIA or the IJ erred in that regard, and so we may

fairly deem that claim abandoned.       See Anacassus v. Holder, 602

F.3d 14, 19 nn.5, 7 (1st Cir. 2010) (holding that undeveloped

claims are deemed waived).

           Moreover, we note that the record contains substantial

evidence to support the BIA's and the IJ's finding that Morales

failed to meet his burden of showing the requisite government

action or inaction.   To be sure, a government's failure to act on

credible reports of private abuse can constitute inaction.           See

Ivanov v. Holder, 736 F.3d 5, 13-14 (1st Cir. 2013) (emphasizing

that authorities' failure to respond to the petitioner's and the

petitioner's parents' reports of severe beatings by skinheads

"signals   their   unwillingness   or   inability   to    control   [the

petitioner's] persecutors").   And, the failure by a petitioner to

make such a report is not necessarily fatal to a petitioner's case

if the petitioner can demonstrate that reporting private abuse to

government authorities would have been futile.           See Pavlova v.

INS, 441 F.3d 82, 91 (2d Cir. 2006) (concluding that the petitioner

had met her burden of showing that the "Russian government was

unwilling to control [private] religiously-motivated mistreatment

of [a religious minority group]" in part because the petitioner


                               - 10 -
"testified that, based on her own experiences with police inaction

. . . she 'had come to understand that [the private group] had

some kind of relationship with the police and that realistically

the police wouldn't do anything to help us'"); Ornelas-Chavez v.

Gonzales, 458 F.3d 1052, 1058 (9th Cir. 2006) (holding that an

applicant       for        withholding     of      removal    "need     not      have

reported    .     .    .   persecution     to     the   authorities    if   he   can

convincingly establish that doing so would have been futile or

have subjected him to further abuse").

            But here, substantial evidence in the record supports

the finding made below that Morales failed to demonstrate that the

reason he did not report the mistreatment he suffered was that it

would have been futile to do so.                Morales testified that it was

his belief that the police were "corrupt," but we have previously

explained that a failure to report mistreatment -- even if based

on the petitioner's subjective belief that authorities are corrupt

-- is not, without more, sufficient to show that the mistreatment

was attributable to the government, whether through action or

inaction.    See Barsoum v. Holder, 617 F.3d 73, 80 (1st Cir. 2010)

(affirming the agency's finding of no past persecution because,

although    the       petitioner   claimed      that    the   police   "failed    to

investigate his story" after an initial visit to the authorities,

the petitioner nevertheless "never again sought their help");

Orelien v. Gonzales, 467 F.3d 67, 72 (1st Cir. 2006) (denying the


                                         - 11 -
petition for review because "the petitioner did not offer a

scintilla     of   evidence   to    show    that   .   .   .   he    .    .   .   sought

governmental protection from the maraudings of [a] jealous co-

worker, let alone that the authorities could not or would not

provide   protection");       see   also    Guaman-Loja,       707       F.3d     at   124

(upholding the agency's finding that the petitioner had failed to

show   past     persecution    where       the   "individuals        who      allegedly

persecuted [the petitioner] were without an apparent connection to

the government, and [the petitioner] never sought aid or protection

from the police or local authorities"); Galicia v. Ashcroft, 396

F.3d 446, 448 (1st Cir. 2005) (upholding the IJ's conclusion that

the petitioner "did not show that the harassment he suffered was

by the government or a group the government could not control" in

part because the "beating [the petitioner] received was by young

men, including one he knew from his church, and [the petitioner]

made no effort to contact the authorities or any other group in

the country that might be able to help him").

              Moreover, Morales also testified that if he had reported

the incidents that ground his claim of persecution to authorities,

the perpetrators "would go to jail." And while Morales did testify

to his concern that the perpetrators would seek to harm him again

upon their release, such concern regarding what might happen after

authorities did take the action that Morales believed would be

taken does not suffice to demonstrate that the authorities were


                                     - 12 -
unable or unwilling to take action to protect him.                   See Ortiz-

Araniba v. Keisler, 505 F.3d 39, 42 (1st Cir. 2007) ("An applicant

must show the government's acquiescence in the persecutor's acts

or its inability or unwillingness to investigate and punish those

acts, and not just a general difficulty preventing the occurrence

of particular future crimes."         (emphasis in original)); Silva v.

Ashcroft, 394 F.3d 1, 7 (1st Cir. 2005) (affirming the BIA's

finding that the petitioner did not suffer past persecution given

a "lack of proof that [government] authorities would be unable or

unwilling to do their duty, and thus safeguard the petitioner and

his family").

           Because Morales's contention in his brief that he has a

well-founded      fear     of   persecution     depends    entirely     on     his

contention that the BIA and the IJ erred in ruling that he had not

suffered past persecution, he provides us with no basis for

reversing the agency's ruling denying his application for asylum.

Nor does Morales offer us any basis on which to conclude that he

could   satisfy      the   even-more-demanding       clear-probability        test

necessary to qualify for withholding of removal.               See, e.g., INS

v. Cardoza-Fonseca, 480 U.S. 421, 449-450 (1987).                     Morales's

application    for    protection    under     the   CAT   likewise    fails    for

substantially the same reason as do his challenges to the denials

of his request for asylum and withholding of removal.                See Romilus

v. Ashcroft, 385 F.3d 1, 8 (1st Cir. 2004) ("[A]n applicant must


                                    - 13 -
demonstrate that any torture he will suffer would be at the hands

of the government or with the consent or acquiescence of the

government."   (citing Guzman v. INS, 327 F.3d 11, 17 (1st Cir.

2003))).

                               III.

           The petition for review is denied.




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