                                                              [DO NOT PUBLISH]


             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________                   FILED
                                                         U.S. COURT OF APPEALS
                             No. 08-17185                  ELEVENTH CIRCUIT
                                                               JULY 24, 2009
                         Non-Argument Calendar
                                                            THOMAS K. KAHN
                       ________________________
                                                                 CLERK

                        Agency Nos. A094-882-827,
                              A094-882-828

MARIO ERNESTO ALVARADO-MONTERROSA,
ROSA LISET ALVARADO DE ALVARADO,
ALEJANDRA LISET ALVARADO,
EMILIA GRACIELA ALVARADO,

                                                                     Petitioners,

                                   versus

U.S. ATTORNEY GENERAL,

                                                                    Respondent.


                       ________________________

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

                               (July 24, 2009)

Before BIRCH, PRYOR and FAY, Circuit Judges.

PER CURIAM:
       Mario Alvarado-Monterrosa and his family, Rosa Liset Alvarado De

Alvarado, Alejandra Liset Alvarado, and Emilia Graciela Alvarado, all natives and

citizens of El Salvador, appeal the order by the Board of Immigration Appeals

(“BIA”) affirming the immigration judge’s (“IJ’s”) order of removal, denial of

asylum and withholding of removal under the Immigration and Nationality Act

(“INA”), and denial of relief under the United Nations Convention Against Torture

and Other Cruel, Inhuman, or Degrading Treatment or Punishment (“CAT”), INA

§§ 208, 241, 8 U.S.C. §§ 1158, 1231, 8 C.F.R. § 208.16(c). Alvarado-Monterrosa

claimed that he witnessed and reported gang members committing crimes, and had

been and would be persecuted by the gang members on account of his imputed

political opinion and membership in a particular social group comprised of people

who witness and report gang crimes. For the reasons set forth below, we deny the

petition.

                                         I.

       Alvarado-Monterrosa testified that, on October 15, 2005, the family home

was robbed. The next day, he reported the robbery to the police. Then, on October

27, 2005, he witnessed gang members attempting to break into his neighbor’s

home. He called the police.   Before the police arrived, however, the gang

members fled. After the police left, the gang members returned. One of them told

him that they would return for him and that he would be sorry. He reported this
                                         2
threat to the police, and the police advised that he take it seriously. Thereafter, he

would stand by his window and monitor the neighborhood from 1 a.m. to 4 p.m.

each night. On four such occasions, he received telephone calls. Normally, the

caller did not speak. During the last call, however, the caller stated, “[N]ow you’re

not alone.” This scared him because it was true. Later, caretakers of a farm owned

by his family conveyed to him that, on November 13, 2005, gang members had

visited the farm looking for him and making threats against him. He did not report

this event to the police because he was afraid that the gang members would harm

the caretakers. Based on these events, he and his family fled El Salvador. His

mother originally fled with him and his family. However, she decided to return to

El Salvador. She currently lives in the home in which he and his family previously

lived. She had since advised him that the area remained dangerous and that she did

not leave home after 6 p.m. Indeed, after she returned, in February 2006, the home

was robbed again and a car window was broken.

      The IJ denied Alvarado-Monterrosa’s application. The IJ reasoned that he

failed to establish that he was persecuted on account of a protected ground. First,

regarding his claims of persecution based on his political opinion, the record did

not contain any evidence suggesting that the gang members targeted him because

of his political opinion, imputed or otherwise. Specifically, it did not appear that

the gang members had imputed a political opinion to him based on his reporting
                                            3
their crimes, and reporting crimes did not otherwise constitute an expression of

political opinion. Also, regarding his claims of persecution based on his

membership in a particular social group, namely, witnesses of crimes by gang

members, such witnesses did not constitute a particular social group because they

could not be defined with the requisite particularity and did not possess immutable

characteristics. Likewise, the threats by the gang members did not constitute

persecution, but merely harassment, intimidation, and criminal activity.

Furthermore, any fear from him and his family was not objectively reasonable,

especially as his mother continued to reside in the home unharmed. Because he

had not demonstrated asylum eligibility, he could not demonstrate withholding-of-

removal eligibility. Also, because the record did not contain any evidence

suggesting that the government acquiesced to the gang members’ violence, he

could not establish CAT-relief eligibility.

      On appeal, the BIA dismissed Alvarado-Monterrosa’s appeal and affirmed

the IJ’s decision, “for the reasons stated therein.” The BIA specifically noted that

the IJ correctly found that the harm suffered by him and his family did not rise to

the level of persecution, he failed to demonstrate a nexus between this harm and a

protected ground, and he failed to show that more likely than not he and his family

would be tortured at the hand, or with the acquiescence, of the government.

                                          II.
                                              4
      When the BIA affirms the IJ’s decision, but issues a separate opinion, we

review the BIA’s opinion “except to the extent that [the BIA] expressly adopts the

IJ’s opinion.” Reyes-Sanchez v. U.S. Att’y Gen., 369 F.3d 1239, 1242 (11th Cir.

2004). Here, the BIA issued a separate opinion, but stated therein that it was

adopting the IJ’s reasoning and specified that the IJ conclusions regarding past

persecution, nexus, and withholding of removal and CAT, were correct.

Accordingly, we will review the IJ’s opinion. See id.

      In conducting this review, we review the IJ’s legal determinations de novo

and factual determinations under the substantial evidence test. D-Muhumed v.

U.S. Att’y Gen., 388 F.3d 814, 817 (11th Cir. 2004); Al Najjar v. Ashcroft, 257

F.3d 1262, 1283-84 (11th Cir. 2001). Under this test, which is “highly

deferential,” 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 (quotation omitted). In order to reverse a finding of

fact, “ we must find that the record not only supports reversal, but compels it.”

Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003).

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

asylum, withholding of removal, and CAT relief. INA §§ 208, 241; 8 U.S.C.

§§ 1158, 1231; 8 C.F.R. § 208.16(c). To qualify for asylum, the alien must prove



                                           5
that he is a refugee. Al Najjar, 257 F.3d at 1284 (citing 8 U.S.C.

§ 1101(a)(42)(A)).

      To establish refugee status, the alien must establish, through specific,

detailed facts, (1) his past persecution on account of a protected ground, or (2) his

“well-founded fear” that he will be persecuted in the future on account of a

protected ground. 8 C.F.R. § 208.13(a), (b); see Al Najjar, 257 F.3d at 1287. A

well-founded fear of future persecution may be established by showing (1) past

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

persecution based on a protected ground, (2) a reasonable possibility of personal

persecution based on a protected ground, or (3) a pattern or practice in the subject

country of persecuting a group of similarly situated people, to which the petitioner

belonged, on account of a protected ground. 8 C.F.R. § 208.13(b)(1), (b)(2)(i) and

(iii). In establishing any of the above, the alien must demonstrate that his fear “is

subjectively genuine and objectively reasonable.” Al Najjar, 257 F.3d at 1289. An

alien’s allegations of a future threat are less persuasive if the alien’s family remains

in his country without incident. See Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1259

(11th Cir. 2006).

      “Persecution” is “an extreme concept, requiring more than a few isolated

incidents of verbal harassment or intimidation, and that [m]ere harassment does not

amount to persecution.” Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th
                                            6
Cir. 2005) (quotations omitted) (concluding that “menacing” telephone calls and

threats to the alien and her brother did not constitute past persecution). Likewise,

“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.” Ruiz, 440 F.3d at

1258.

        To qualify for withholding of removal, the alien similarly must show that it

is more likely than not that his life or freedom would be threatened on account of

race, religion, nationality, membership in a particular social group, or political

opinion. Mendoza, 327 F.3d at 1287 (citing 8 U.S.C. § 1231(b)(3)(A)). Likewise,

to qualify for CAT relief, the alien must prove that it is more likely than not that he

would be tortured by, or with the consent or acquiescence of, a public official or

person acting in an official capacity upon return to his country. See id. at 1303; 8

C.F.R. § 208.18(a). Because the more-likely-than-not standard that applies to

withholding of removal and CAT claims is more stringent than the well-founded-

fear standard that applies to asylum claims, ineligibility for asylum generally

precludes withholding of removal and CAT relief eligibility. Al Najjar, 257 F.3d

at 1292-93, 1303-04.




                                            7
                                         III.

      As an initial matter, Alvarado-Monterrosa’s appellate arguments that the

BIA did not adequately consider the record as a whole or whether he was entitled

to CAT relief are without merit, as the BIA expressly stated that it had considered

the evidence de novo and specifically addressed the IJ’s conclusion regarding CAT

relief. Regarding the merits, substantial evidence supports the IJ’s denial of

asylum. See id. at 1283-84. As the IJ found, Alvarado-Monterrosa failed to

establish that he suffered past persecution. See 8 C.F.R. § 208.13(a), (b); Al

Najjar, 257 F.3d at 1287. The record demonstrates that gang members broke into

and robbed his home, made “mara signs” at him and threatened to return and make

him sorry, called him in the middle of the night and largely remained silent, passed

along threats on his life through his caretakers, and broke into his home after he

fled El Salvador. The record does not contain any evidence that gang members

ever physically harmed or otherwise approached him or his family. Without such

evidence, these events are the sort of harassment and intimidation that this Court

has held do not constitute the extreme behavior that qualifies as persecution. See

Sepulveda, 401 F.3d at 1231. Specifically, the calls, in which no threats were

made, do not constitute persecution. See id. Also, the threats made to him and

passed along through his caretakers are akin to threatening calls and thus do not

constitute persecution. See id. Furthermore, the home break-ins appear to have
                                          8
been mere criminal activity, especially as the record does not contain any evidence

that the gang members who perpetrated the break-ins attempted to make contact

with the inhabitants of the home, such that it appears they wanted only to steal

certain items. See Ruiz, 440 F.3d at 1258.

        As the IJ also found, Alvarado-Monterrosa failed to establish that he had a

well-founded fear of future persecution. See 8 C.F.R. § 208.13(a), (b); see Al

Najjar, 257 F.3d at 1287. Although he testified that he subjectively feared the

possibility of being harmed, the record does not demonstrate that his fears were

objectively reasonable. See 8 C.F.R § 208.13(b)(1), (b)(2)(i) and (iii); Al Najjar,

257 F.3d at 1289. His mother remains in El Salvador, living in the house that gang

members robbed. See Ruiz, 440 F.3d at 1259. Also, although she reported that the

area remained dangerous and gang members robbed the home again, the record

does not contain any evidence that gang members continued to threaten or look for

him.1

        Substantial evidence also supports the IJ’s denial of withholding of removal

and CAT relief. See Al Najjar, 257 F.3d at 1283-84. As the IJ found, because

Alvarado-Monterrosa did not satisfy his burden of proving asylum eligibility, he



        1
          Alvarado-Monterrosa’s failure to establish past persecution or a well-founded fear of
future persecution is sufficient grounds on which to affirm the IJ’s denial of relief and deny the
petition. It is not necessary, therefore, for us to separately address the IJ’s finding that he failed
to establish the requisite nexus or his and the government’s arguments on this matter.
                                                    9
necessarily cannot satisfy his burden of proving withholding-of-removal eligibility.

See id. at 1292-93. Also as the IJ found, because the record does not contain any

evidence suggesting that he or his family will be tortured at the hand, or with the

acquiescence, of the government, he did not satisfy his burden of proving CAT-

relief eligibility. See id. at 1303; 8 C.F.R. § 208.18(a). Accordingly, we deny the

petition.

       PETITION DENIED.




                                          10
