                                                             [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________                   FILED
                                                        U.S. COURT OF APPEALS
                            No. 08-15506                  ELEVENTH CIRCUIT
                                                              MAY 28, 2009
                        Non-Argument Calendar
                                                           THOMAS K. KAHN
                      ________________________
                                                                CLERK

                       Agency Nos. A094-283-234,
                             A097-737-824

OSCAR RAFAEL MEJIA-LOPEZ,
KENIA MARCELY MENDOZA-ORDONEZ,
OSCAR MARCELO MEJIA-MENDOZA,

                                                                    Petitioners,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                   Respondent.


                      ________________________

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

                              (May 28, 2009)

Before DUBINA, BLACK and BARKETT, Circuit Judges.

PER CURIAM:
      Petitioner Oscar Rafael Mejia-Lopez, a citizen of Honduras, petitions for

review of the final order of the Board of Immigration Appeals (“BIA”), which

adopted the decision of the immigration judge (“IJ”) ordering removal, denying

asylum and withholding of removal under the Immigration and Naturalization Act

(“INA”), 8 U.S.C. §§ 1158, 1231, and denying relief under the United Nations

Convention Against Torture (“CAT”), 8 C.F.R. § 208.16(c). Because Mejia-Lopez

failed to exhaust his administrative remedies, we lack jurisdiction to review Mejia-

Lopez’s challenge of the IJ’s denial of relief under CAT. In his petition for review,

Mejia-Lopez argues (1) he established both past and future persecution on account

of a statutorily protected ground, and (2) the IJ violated his due process rights by

not allowing him to continue his testimony in support of his application.

                                           I.

      On the merits of his asylum and withholding of removal claims, Mejia-

Lopez argues that he established past persecution on account of his membership in

a particular social group and/or his political opinion. The alleged past persecution

was based on his cooperation with the Honduran police, which led to threats and an

attempted abduction by a policeman. Mejia-Lopez also argues he has subjectively

and objectively shown his fear of future persecution, as it was the Government of

Honduras, specifically the police, that caused him to flee Honduras.



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      We review the BIA’s decision as the final judgment, unless the BIA has

expressly adopted the IJ’s decision. Ruiz v. Gonzales, 479 F.3d 762, 765 (11th Cir.

2007). In that case, “we review the IJ’s decision as well.” Id. Here, the BIA

expressly adopted the IJ’s decision, so we review the IJ’s decision.

      “We review the IJ’s factual determinations under the substantial evidence

test.” Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005). We must

“affirm the [IJ’s] decision if it is supported by reasonable, substantial, and

probative evidence on the record considered as a whole.” Al Najjar v. Ashcroft, 257

F.3d 1262, 1284 (11th Cir. 2001) (internal quotations omitted). Under this test, “we

view the record evidence in the light most favorable to the agency’s decision and

draw all reasonable inferences in favor of that decision.” Adefemi v. Ashcroft, 386

F.3d 1022, 1027 (11th Cir. 2004) (en banc). Accordingly, “[t]o conclude that the

[IJ’s] decision should be reversed, we must find that the record not only supports

the conclusion, but compels it.” Ruiz v. Gonzales, 479 F.3d at 765 (citation

omitted).

      Any alien who is physically present in the United States may apply for

asylum. Mejia v. U.S. Att’y Gen., 498 F.3d 1253, 1256 (11th Cir. 2007); INA

§ 208(a)(1); 8 U.S.C. § 1158(a)(1). The Attorney General or Secretary of

Homeland Security may grant asylum if an alien meets the definition of “refugee,”



                                           3
as defined by 8 U.S.C. § 1101(a)(42)(A). 8 U.S.C. § 1158(b)(1)(A). The INA

defines “refugee” as:

      [A]ny 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.

8 U.S.C. § 1101(a)(42)(A). The asylum applicant carries the burden of proving

statutory refugee status. See Al Najjar, 257 F.3d at 1287 (11th Cir. 2001). 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 of future persecution on account of a protected ground.” Mejia,

498 F.3d at 1256. “To establish asylum [eligibility] based on past persecution, the

applicant must prove (1) that she was persecuted, and (2) that the persecution was

on account of a protected ground.” Silva v. U.S. Att’y Gen., 448 F.3d 1229, 1236

(11th Cir. 2006). “To establish eligibility for asylum based on a well-founded fear

of future persecution, the applicant must prove (1) a subjectively genuine and

objectively reasonable fear of persecution that is (2) on account of a protected

ground.” Id. (internal quotation marks and citation omitted). A showing of past




                                           4
persecution creates a rebuttable presumption of a well-founded fear of future

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

      Neither the INA nor the regulations define persecution. We have described

persecution as an “extreme concept, requiring more than a few isolated incidents of

verbal harassment or intimidation.” Sepulveda, 401 F.3d at 1231 (quotations and

citation omitted). In Sepulveda, we held that menacing telephone calls and threats

to the alien, her family members, and colleagues did not rise to the level of past

persecution. Id.

      To qualify for withholding of removal under the INA, an alien must show

that his or her 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). The evidentiary burden for withholding of

removal is greater than that imposed for asylum, so, if an alien has not met the

well-founded fear standard for asylum, he generally cannot meet the standard for

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

      We have held that noncriminal informants do not constitute a particular

social group. Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1198 (11th Cir.

2006) (holding noncriminal informants working against the Cali drug cartel did not

constitute a particular social group eligible for asylum and withholding; group of



                                           5
informants were both not visible enough, and, at the same time, were potentially

too numerous or inchoate).

      ‘Particular social group’ should not be a ‘catch all’ for all persons
      alleging persecution who do not fit elsewhere. In restricting the
      grounds for asylum and withholding of deportation based on
      persecution to five enumerated grounds, Congress could not have
      intended that all individuals seeking this relief would qualify in some
      form by defining their own ‘particular social group.’
Id.

      “The statutes governing asylum and withholding of removal protect not only

against persecution by government forces, but also against persecution by non-

governmental groups that the government cannot control.” Ruiz v. U.S. Att’y Gen.,

440 F.3d 1247, 1257 (11th Cir. 2006). “Thus, evidence that either is consistent

with acts of private violence . . ., or that merely shows that a person has been the

victim of criminal activity does not constitute evidence of persecution based on a

statutorily protected ground.” Id. at 1258. See Sanchez v. U.S. Att’y Gen., 392

F.3d 434, 438 (11th Cir. 2004) (holding evidence was consistent with finding that

Columbian FARC guerilla group’s harassing of petitioner for failure to cooperate

did not qualify petitioner for withholding of removal under the INA). We have also

held that targeting the wealthy for extortionate purposes was not persecution based

on political opinion. Rivera v. U.S. Att’y Gen., 487 F.3d 815, 821-22 (11th Cir.

2007) (holding aliens whose persecutors had murdered members of the family for

refusal to pay a “war tax” were not persecuted on account of political opinion).
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      We conclude from the record that the IJ did not err as a matter of law, and

substantial evidence supports the IJ’s finding, adopted by the BIA, that Mejia-

Lopez failed to demonstrate a nexus between the threats and kidnapping attempt

and a protected ground. The IJ considered the evidence Mejia-Lopez submitted in

support of his case. The record does not compel the conclusion that the criminal

extortion attempts against him were motivated by anything other than money, and

because an applicant who does not qualify for asylum ordinarily will be unable to

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

deny the petition to the extent it generally challenges the denial of relief.

                                           II.

      Mejia-Lopez also argues his due process rights were violated because he was

not allowed a reasonable opportunity to present evidence on his behalf.

Specifically, Mejia-Lopez argues that after a recess the IJ did not allow him to

continue and expand his testimony and did not allow his wife to testify. Mejia-

Lopez argues this deprivation caused him substantial prejudice because he was not

able to complete the presentation of his testimony in support of his application.

      Review of constitutional challenges is de novo. Lonyem v. U.S. Att’y Gen.,

352 F.3d 1338, 1341 (11th Cir. 2003). Aliens present in the United States are

entitled to due process under the Fifth Amendment of the Constitution. Fernandez-

Bernal v. Att’y Gen. of U.S., 257 F.3d 1304, 1311 (11th Cir. 2001). “In order to
                                            7
establish a due process violation, an alien must show that he or she was deprived of

liberty without due process of law, and that the asserted error caused him

substantial prejudice.” Garcia v. Att’y Gen. of U.S., 329 F.3d 1217, 1222 (11th Cir.

2003) (internal citations omitted). Under certain conditions, the deprivation of “the

ability to present evidence on one’s behalf in a removal proceeding would, under

certain circumstances, constitute a due process violation.” Frech v. U.S. Att’y Gen.,

491 F.3d 1277, 1282 (11th Cir. 2007).

      Mejia-Lopez has not shown he was prejudiced by the IJ’s decision not to

continue his testimony or allow his wife’s testimony after the recess. The record is

clear that the IJ considered Mejia-Lopez and his wife’s application for asylum as

well as all the documents filed in support of the case. After Mejia-Lopez’s counsel

could not establish or explain the required nexus between the threats and

kidnapping attempt and a protected ground, the IJ likely felt the additional

testimony would be an accumulation and a reiteration of their applications for

asylum. Mejia-Lopez did not proffer or present any new facts or evidence to the

BIA or here on appeal that might have changed or even influenced the IJ’s

decision. Thus, Mejia-Lopez has not shown the asserted error caused him

substantial prejudice, Garcia, 329 F.3d at 1222, and that his due process rights

were violated.

      For the above-stated reasons, we deny Mejia-Lopez’s petition for review.
                                          8
PETITION DENIED.




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