                                                             [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS
                                                                  FILED
                    FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________ ELEVENTH CIRCUIT
                                                              AUGUST 18, 2009
                            No. 08-16712                     THOMAS K. KAHN
                        Non-Argument Calendar                    CLERK
                      ________________________

                Agency Nos. A095-264-794, A095-264-795

LORENZO FRANCISCO-NICOLAS,
ANGELINA MATIAS-DIEGO,
EULALIA REGINA FRANCISCO-MATIAS,

                                                                    Petitioners,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                   Respondent.


                      ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                       _________________________

                            (August 18, 2009)

Before BIRCH, HULL and ANDERSON, Circuit Judges.

PER CURIAM:
       Lorenzo Francisco-Nicolas (“Francisco”), his wife, Angelina Matias Diego,

and their minor daughter, Eulalia Regina Francisco-Matias (collectively,

“Petitioners”), natives and citizens of Guatemala, through counsel, petition for

review of the Board of Immigration Appeals’ (“BIA”) final order affirming the

immigration judge’s (“IJ”) denial of asylum and withholding of removal under the

INA. On appeal, the Petitioners assert that the BIA erred and abused its discretion

in affirming the IJ’s decision denying the Petitioners’ applications for relief. They

argue that they established by clear and convincing evidence that Francisco, a

Mayan, was the subject of past persecution and would be subject to future

persecution if returned to Guatemala on account of his membership in that

indigenous group.1

               When the BIA issues a decision, we review only that decision, except

to the extent that the BIA expressly adopts the IJ’s decision. Al Najjar v. Ashcroft,

257 F.3d 1262, 1284 (11th Cir. 2001). In this case, the BIA agreed with but did


       1
                The Government asserts that we lack jurisdiction to hear the Petitioners claims (1)
that Francisco suffered past persecution in Guatemala because they failed to raise the claim
before the BIA, and (2) that Francisco suffered past persecution or has a well-founded fear of
future persecution on account of his Mayan ethnicity because they failed to argue the issue
before the IJ. We disagree. First, Francisco specifically stated that he suffered past persecution
in his brief on appeal to the BIA. Second, Francisco indicated from the beginning in his asylum
application that he was entitled to relief on the basis of race. The fact that he later referred to his
“Mayan ethnicity,” or his membership in an “indigenous group,” as his basis for relief rather
than his “race” is not important in the analysis, because it was clear that his claims stemmed
from the fact that he is Mayan. Accordingly, we find that Francisco sufficiently exhausted these
issues before the agency and, therefore, we have jurisdiction to hear his claims.

                                                   2
not expressly adopt the IJ’s opinion. Therefore, we review just the BIA’s decision.

      The BIA’s factual determinations are reviewed under the substantial

evidence test, and we “must affirm the BIA’s decision if it is supported by

reasonable, substantial, and probative evidence on the record considered as a

whole.” Al Najjar, 257 F.3d at 1283-84 (citations and internal quotations omitted).

We cannot find or consider facts not raised in the administrative record, nor can we

reweigh the evidence from scratch. Adefemi v. Ashcroft, 386 F.3d 1022, 1027

(11th Cir. 2004) (en banc). We cannot reverse the BIA’s factual findings unless

the record compels it, and the fact that the record also supports the petitioner’s case

is not enough to reverse. Id. at 1029.

      An alien who arrives in or is present in the United States may apply for

asylum. INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Secretary of Homeland

Security or the Attorney General has discretion to grant asylum if the alien meets

the INA’s definition of a “refugee.” INA § 208(b)(1), 8 U.S.C. § 1158(b)(1). A

“refugee” is

      any person who is outside any country of such person’s nationality or,
      in the case of a person having no nationality, is outside any country in
      which such person last habitually resided, and who is unable or
      unwilling to return to, and is unable or unwilling to avail himself or
      herself of the protection of, that country because of persecution or a
      well-founded fear of persecution on account of race, religion,
      nationality, membership in a particular social group, or political
      opinion.

                                           3
INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the

burden of proving statutory “refugee” status. Id. at 1284.

      To establish asylum eligibility, the alien must, with specific and credible

evidence, establish (1) past persecution on account of a statutorily protected

ground, or (2) a “well-founded fear” that the protected ground will cause future

persecution. 8 C.F.R. § 208.13(a), (b); Al Najjar, 257 F.3d at 1287. A showing of

past persecution creates a rebuttable presumption of a well-founded fear of future

persecution. Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005);

8 C.F.R. § 208.13(b)(1). To otherwise establish a well-founded fear, “an applicant

must demonstrate that his or her fear of persecution is subjectively genuine and

objectively reasonable.” Al Najjar, 257 F.3d at 1289. An alien must establish a

nexus between a statutorily protected ground and the feared persecution by

presenting “specific, detailed facts showing a good reason to fear that he or she

will be singled out for persecution on account of” the protected ground.

D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 818 (11th Cir. 2004). The asylum

applicant need not show that he will be singled out for persecution, however, if he

establishes (1) “that there is a pattern or practice” in his country of persecuting a

group of persons similarly situated to him on account of a protected ground, and

(2) a reasonable fear of persecution based upon his inclusion in, and identification

with, such group of persons. 8 C.F.R. § 208.13(b)(2)(iii).
                                            4
      To qualify for withholding of removal under the INA, an alien must show

that, if returned to his country, the alien’s life or freedom would be threatened on

account of race, religion, nationality, membership in a particular social group, or

political opinion. INA § 241(b)(3); 8 U.S.C. § 1231(b)(3). If a petitioner is unable

to meet the standard of proof for asylum, he is generally precluded from qualifying

for withholding of removal. Al Najjar, 257 F.3d at 1292-93.

      Substantial evidence supports the BIA’s conclusion that the Petitioners

failed to show past persecution on account of a protected ground. Francisco does

not claim that he was harmed or threatened in any way during the time his father

was killed, and there is no evidence in the record to suggest that the guerillas

targeted him or even his father because of ethnicity, membership in a particular

social group, or any other protected ground.

      Substantial evidence also supports the BIA’s conclusion that the Petitioners

failed to show a well-founded fear of future persecution on account of a protected

ground. While the Country Report indicates that members of indigenous groups

are subject to pervasive discrimination, the record does not compel the conclusion

that Francisco has good reason to fear mistreatment that would rise to the level of

persecution in Guatemala based on his membership in an indigenous group.

      Because Petitioners have failed to establish that they suffered from past

persecution or have a well-founded fear of future persecution on account of
                                           5
Francisco’s status as an ethnic Mayan, they are not entitled to asylum relief.

Because the Petitioners failed to meet the standard of proof for asylum, they are

precluded from qualifying for withholding of removal. Accordingly, we must deny

the petition.

       PETITION DENIED.            2




       2
                Petitioners’ request for oral argument denied.
                                                  6
