           United States Court of Appeals
                      For the First Circuit



No. 14-1182

                   ELMER HUMBERTO PAIZ-MORALES,

                            Petitioner,

                                v.

         LORETTA E. LYNCH, UNITED STATES ATTORNEY GENERAL,*

                            Respondent.



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




                              Before

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



     Lydia M. Sanchez on brief for petitioner.
     Sui P. Wong, Trial Attorney, Office of Immigration
Litigation, United States Department of Justice Civil Division,
with whom Joyce R. Branda, Acting Assistant Attorney General, and
Anthony W. Norwood, Senior Litigation Counsel, were on brief, for
respondent.




     * Pursuant to Fed. R. App. P. 43(c)(2), Attorney General
Loretta E. Lynch has been substituted for former Attorney General
Eric H. Holder, Jr. as the respondent.
July 29, 2015
             THOMPSON,   Circuit Judge.        Petitioner Elmer Humberto

Paiz-Morales, a native of Guatemala who entered the United States

unlawfully in 1993, appeals from the Board of Immigration Appeals's

("BIA") decision affirming an Immigration Judge's ("IJ") denial of

his application for asylum and withholding of removal.1             For the

reasons expressed below, we deny the petition.

                               I. Background

             In April 1998, Paiz-Morales filed an application for

asylum and withholding of removal.           In October of that year, the

Immigration and Naturalization Service ("INS") served him with a

Notice to Appear for a removal hearing.          When Paiz-Morales failed

to appear, a removal order was issued in absentia.            In 2008, Paiz-

Morales moved to reopen the order of removal, which was granted.

Paiz-Morales    then     requested   asylum,    withholding    of   removal,

protection    under    the   Convention   Against   Torture    ("CAT"),   and



     1 Paiz-Morales also contests the denial of his application
for protection under the Convention Against Torture ("CAT"). Under
8 U.S.C. § 1252(d)(1), we may review a final order of removal only
if the petitioner has exhausted his administrative remedies. Paiz-
Morales did not challenge the IJ's dismissal of his CAT claim
before the BIA. Aside from one sentence in his brief to the BIA,
asserting that the IJ erred in denying his application for "asylum,
withholding of removal and protection against torture," Paiz-
Morales did not argue the merits of the CAT claim. "[T]heories
not advanced before the BIA may not be surfaced for the first time
in a petition for judicial review of the BIA's final order."
Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004). Because he
did not raise this claim before the BIA, we do not have
jurisdiction to review it here. Shah v. Holder, 758 F.3d 32, 37
(1st Cir. 2014).


                                     - 3 -
voluntary departure. A hearing was held on June 11, 2012, at which

Paiz-Morales testified.2

            Paiz-Morales's persecution claim stemmed from actions

related to the Guatemalan Civil War.           In particular, he testified

that he left Guatemala before he turned eighteen because anti-

government guerillas came to his house on several occasions to

threaten   him   into   cooperating     with   them.     On   one   occasion,

according to Paiz-Morales, the guerillas held him for about a week.

Although he was released, the guerillas returned to assault him

and to persuade him to drive a truck for them.          According to Paiz-

Morales, the guerillas returned several times, threatened his

family,    and   beat   him.   During    his    last   encounter    with   the

guerillas, he received a cut on his neck.                Paiz-Morales left

Guatemala for the United States in February 1993, where he lived

for a time in California before moving to Massachusetts.

            Following the hearing, the IJ rendered an oral decision

finding Paiz-Morales to be credible, and granting him voluntary

departure, but holding that he had failed to meet his burden of

showing that he was entitled to asylum, withholding of removal, or

CAT protection. Specifically, the IJ found that Paiz-Morales could

not establish a nexus between his past harm and a protected ground.



     2 Because the IJ and the BIA found him credible, we will rely
on Paiz-Morales's testimony for our recitation of the background
facts.


                                  - 4 -
The IJ found that Paiz-Morales had not offered any evidence that

he had suffered torture at the hands of the Guatemalan government,

nor that the government allowed others to torture him.    Finally,

the IJ found that Paiz-Morales had not met his burden of proving

past persecution and did not have an objectively reasonable fear

of future persecution.

          Paiz-Morales appealed the IJ's decision to the BIA.   He

persisted in arguing that he had established a nexus between his

past persecution by guerillas and a protected ground, and now also

argued that he reasonably feared future persecution due to his

membership in a particular social group consisting of "members

that oppose gang membership."   He claimed that "gang members know

which persons in society are against their philosophies because

gang members themselves wear certain clothing, have tattoos on

their bodies and have easily identifiable signs of gang membership

on their persons or bodies."

          In its review, the BIA affirmed the IJ's decision,

finding that Paiz-Morales had failed to demonstrate a protected

ground to go along with his alleged past persecution by guerillas

or (on the future persecution front) that "members that oppose

gang membership" is a legally cognizable social group.    Further,

the BIA stated that because Paiz-Morales had failed to carry his

burden of showing past persecution or a well-founded fear of future

persecution (required for asylum), he also failed to meet the


                                - 5 -
higher standard required for withholding of removal. Finally, the

BIA noted that Paiz-Morales did not "specifically or meaningfully

challenge" the IJ's determination that he was not eligible for

protection under CAT.

          This petition followed.   In it, Paiz-Morales argues that

he reasonably fears future persecution based on his membership in

a particular social group, which he defines as "members opposed to

gang membership."3

                          II. Discussion

          When the BIA "adopts portions of the IJ's findings while

adding its own gloss, we review both the IJ's and the BIA's

decisions as a unit."    Renaut v. Lynch, ___ F.3d ___, 2015 WL

3486688 at *2 (1st Cir. June 3, 2015) (internal quotation marks

and citation omitted).   We apply a substantial evidence standard

to administrative findings of fact, and will accept them "as long

as they are supported by reasonable, substantial and probative

evidence on the record considered as a whole."    Singh v. Holder,

750 F.3d 84, 86 (1st Cir. 2014) (internal quotation marks and

citation omitted).   "[W]e will reverse only if the record is such


     3 Paiz-Morales states a few times in his brief to this court
that the BIA erred in finding that he failed to establish a nexus
between his past persecution by guerillas and a protected ground.
However, he does no more than indicate what the BIA held and
reiterate that guerillas previously tortured him.      Given his
failure to provide any sort of developed argument, we treat the
issue as waived. United States v. Zannino, 895 F.2d 1, 17 (1st
Cir. 1990).


                               - 6 -
as   to   compel       a     reasonable    factfinder        to    reach    a   contrary

determination."         Jianli Chen v. Holder, 703 F.3d 17, 21 (1st Cir.

2012).      Rulings of law are reviewed de novo, "but with some

deference to the agency's reasonable interpretation of statutes

and regulations that fall within its sphere of authority."                         Id.

             "An applicant for asylum must demonstrate a well-founded

fear of persecution on one of five protected grounds" -- race,

religion,    nationality,            political    opinion     or    membership     in    a

particular social group. Singh, 750 F.3d at 86 (internal quotation

marks and citations omitted).              This burden can be met with "proof

of past persecution, which creates a rebuttable presumption of a

well-founded fear of future persecution."                    Id.

             The asylum statute does not define what constitutes

"membership       in   a     particular    social      group."      See    8    U.S.C.   §

1101(a)(42).           The    BIA's    definition      has   developed      over   time;

initially it required only that members share a "common immutable

characteristic."           Matter of M-E-V-G, 26 I. & N. Dec. 227, 231 (BIA

2014).    Amid fears that "the social group concept would virtually

swallow the entire refugee definition if common characteristics,

coupled with a meaningful level of harm, were all that need be

shown,"     the    BIA       later    refined    the    particular        social   group

definition to include the concepts of "social visibility" and

"particularity."           Id. at 231, 232 (internal quotation marks and

citation omitted).


                                          - 7 -
          That was the state of the definition at the time Paiz-

Morales's appeal was decided.          The following month, the BIA

responded to confusion that had "led some to believe that literal

. . . 'ocular' . . . visibility is required to make a particular

social group cognizable," and renamed the "'social visibility'

requirement as 'social distinction.'"         Id. at 236.      Paiz-Morales

now argues that this "new case law" requires us to remand his case

for reconsideration in light of the "clarification of the BIA's

position on the social visibility requirement."

          However,   the   plain    language     of   Matter    of   M-E-V-G

indicates that the "transition to the term 'social distinction' is

intended to clarify the requirements announced in [two earlier

cases]; it does not mark a departure from established principles."

Id. at 247. Specifically, the BIA clarified that "[t]o be socially

distinct, a group need not be seen by society; rather, it must be

perceived as a group by society."          Id. at 240.   The BIA further

explained that it "would reach the same result in [those earlier

cases] if we were to apply the term 'social distinction' rather

than 'social visibility.'" Id. at 247. The effect is no different

for Paiz-Morales.    The change in terminology did not depart from

the BIA's prior interpretation, but merely clarified that literal

ocular visibility "is not, and never has been, a prerequisite for

a viable particular social group."         Id. at 238.   There is nothing

to suggest that either the IJ or the BIA required Paiz-Morales to


                                   - 8 -
show literal ocular visibility.        Accord Rodas-Orellana v. Holder,

780 F.3d 982, 994 (10th Cir. 2015).          We decline the petitioner's

invitation to remand on that basis.

           Paiz-Morales next argues that the BIA erred in finding

that he failed to establish a protected ground for asylum because

his proposed social group is not a legally cognizable particular

social group.    "To prove persecution on account of membership in

a particular social group, an alien must show at a bare minimum

that [he] is a member of a legally cognizable social group."

Mendez-Barrera v. Holder, 602 F.3d 21, 25 (1st Cir. 2010).               As

previously discussed, an applicant seeking asylum or withholding

of removal "based on 'membership in a particular social group'

must establish that the group is: (1) composed of members who share

a common immutable characteristic, (2) defined with particularity,

and (3) socially distinct within the society in question."           Matter

of M-E-V-G, 26 I. & N. Dec. at 237.

           We can pass over the first and third requirements,

because even if the petitioner could show that he shared an

immutable characteristic with a socially distinct group, he failed

to define the purported group with the requisite particularity.

The only evidence Paiz-Morales offers in the way of particularity

is the statement that "gang members can easily point out those who

are   against   their   philosophies    --   gang   members   wear   certain

clothing and tattoos."     That may be true, but petitioner has only


                                 - 9 -
described a group consisting of gang members.             By his definition,

anyone not wearing "certain clothing and tattoos" would be a member

of his group. To meet the particularity requirement, a group must

be "discrete and have definable boundaries -- it must not be

amorphous, overbroad, diffuse or subjective." Id. at 239. A group

consisting of all Guatemalan citizens who do not sport gang colors

and tattoos is by definition too amorphous and overbroad to be

particular.

              Paiz-Morales attempts to distinguish his case from that

of Matter of W-G-R, 26 I. & N. Dec. 208, 221-222 (BIA 2014), in

which the BIA found that a proposed group consisting of "former

gang members who have renounced their gang membership" did not

meet the particularity requirement because the group could include

people   of    any   sex,   age,   or   belief   about     gang   activities.

Similarly, the group that Paiz-Morales describes would include

both   infants    and   grandmothers.       However,    according   to   Paiz-

Morales, his group is united by "a common belief of opposition to

gang membership." Yet he offers no clue as to how -- aside from

the lack of gang indicia -- one might draw a distinction between,

say, octogenarians who oppose gang membership and teenage girls

who hold no opinion on gangs whatsoever.               Although Paiz-Morales

argues that he is a member of a particular group, "members opposed




                                   - 10 -
to gang membership," he did not offer any evidence of the existence

of this group, aside from his own assertion.4

            In Mendez-Barrera, we held that a proposed group, "young

women recruited by gang members who resist such recruitment," was

not "sufficiently particular to be legally cognizable."           602 F.3d

at 27.    This "loose description" made it "virtually impossible to

identify who is or is not a member," because it left open questions

as to who could be considered "young," what conduct counted as

"recruitment," and what degree of "resistance" must be displayed.

Id.   We stated that "[t]hese are ambiguous group characteristics,

largely subjective, that fail to establish a sufficient level of

particularity."     Id.    The description of Paiz-Morales's proposed

group is even less specific than that in Mendez-Barrera. Our

previous decisions have also rejected similar proposed social

groups.    See Garcia-Callejas v. Holder, 666 F.3d 828, 829-30 (1st

Cir. 2012) (rejecting targets of gang recruitment in El Salvador

as a particular social group); Larios v. Holder, 608 F.3d 105,

108-09    (1st   Cir.   2010)   (rejecting   the   proposed   group   "young




      4
      In his brief submitted to this court, Paiz-Morales belatedly
asserts that his argument "could be framed in terms of his
political opinion."    However, Paiz-Morales did not raise that
argument before either the IJ or the BIA, so we will not consider
it. "We have consistently held that arguments not raised before
the BIA are waived due to a failure to exhaust administrative
remedies."    Shah, 758 F.3d at 37 (internal quotation marks
omitted).


                                   - 11 -
Guatemalan     men   recruited     by    gang   members       who    resist   such

recruitment").

             We do not mean to suggest "a blanket rejection of all

factual scenarios involving gangs." Matter of M-E-V-G, 26 I. & N.

Dec. at 251.    "Social group determinations are made on a case-by-

case basis."     Id.    But on the record of this case, where Paiz-

Morales failed to offer any evidence of the existence of a legally

cognizable particular social group, it is clear that the BIA's

determination was supported by substantial evidence.

             Finally,   Paiz-Morales      argues   that   the       BIA   erred    in

dismissing    his    appeal   of   the    denial   of   his    application        for

withholding of removal.            We can dispense with this argument

quickly.     "Although the threshold of eligibility for withholding

of removal is similar to the threshold for asylum, withholding

requires a higher standard."            Scatambuli v. Holder, 558 F.3d 53,

58 (1st Cir. 2009).       "Withholding of removal requires a showing

that an alien is more likely than not to face persecution on

account of a protected ground."             Id. (internal quotation marks

omitted). Paiz-Morales did not establish that he faced persecution

on account of a legally cognizable social group.               A petitioner who

cannot clear the lower hurdle for asylum will necessarily fail to

meet the higher bar for withholding of removal.

             For the reasons discussed, we deny the petition for

judicial review.


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