                Not for Publication in West's Federal Reporter

          United States Court of Appeals
                       For the First Circuit

No. 11-1972

                    ALFREDO GREGORIO HERNANDEZ,

                               Petitioner,

                                     v.

              ERIC H. HOLDER, JR., Attorney General,

                               Respondent.


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


                                  Before

                        Lynch, Chief Judge,
              Torruella and Thompson, Circuit Judges.



     Brian Monahan and Ross & Associates, on brief for petitioner.
     Tony West, Assistant Attorney General, Civil Division,
Department of Justice, Keith I. McManus, Senior Litigation Counsel,
and Brendan P. Hogan, Office of Immigration Litigation, on brief
for respondent.



                          September 26, 2012
           LYNCH, Chief Judge. Alfredo Gregorio Hernandez petitions

for review of a decision by the Board of Immigration Appeals (BIA),

dated July 25, 2011, which dismissed his appeal of the decision of

an immigration judge (IJ) denying his application for asylum,

withholding of removal, and protection from removal under the

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

           Hernandez   is   a   33-year-old    native   and   citizen   of

Guatemala, and a member of the indigenous Mayan ethnic group.

Hernandez entered the United States without inspection on November

25, 1992, and timely applied for asylum within one year of his

arrival. Hernandez interviewed with an asylum officer on March 15,

2006.   The Department of Homeland Security then filed a Notice to

Appear with the immigration court on July 11, 2006, to begin

removal proceedings. Hernandez was charged with removability as an

alien present in the United States without having been admitted or

paroled.   See 8 U.S.C. § 1182(a)(6)(A)(i).      On September 11, 2007,

Hernandez admitted the allegations in the Notice to Appear and

conceded removability, but he applied for relief from removal based

on claims for asylum, withholding of removal, and protection under

the CAT.   In the alternative, he requested voluntary departure.

           On March 9, 2009, the IJ held a merits hearing on

Hernandez's claims, at which Hernandez was the only witness.

Hernandez testified that he left Guatemala for the United States in

1992, when he was fourteen years old, because of the then-ongoing


                                   -2-
Guatemalan civil war, which lasted from 1960 to 1996.               He stated

that he had refused to join either the government army or the

guerrilla   army, and   that   the    guerrillas   had   on   one    occasion

threatened him with death if he helped the government.1             Hernandez

also testified that neither he nor any of his family members had

been harmed by the guerrillas. He admitted that another reason why

he came to the United States was because of poverty.                Hernandez

expressed his fear that former members of the guerrilla army and/or

"clandestine" groups of former government soldiers would harm him

if he returned to Guatemala in retribution for his refusal to

participate in the war.

            The IJ continued the hearing so that Hernandez could

supplement the record with an affidavit in support of his claims

and with records relating to his criminal arrests and convictions.

The hearing resumed on October 8, 2009.       In Hernandez's affidavit

submitted for this hearing, he stated for the first time that he

feared that the "clandestine" groups would target him because he is

Mayan.   After argument on October 9, the IJ rendered an oral

decision.

            The IJ found that Hernandez's testimony was credible.

However, he also found that Hernandez had not met his burden of


     1
       In his live testimony before the IJ, Hernandez stated that
the guerrillas threatened him and other children with death if they
aided the government forces. In his later affidavit, Hernandez
seemed to expand this story to include a claim that the guerrillas
also threatened him with death if he did not join them.

                                     -3-
demonstrating that he was a "refugee," which is the threshold

showing   needed   to   obtain   asylum   under   the   Immigration   and

Nationality Act.    See 8 U.S.C. § 1158(b)(1).2         The IJ concluded

that Hernandez's experiences in the civil war did not rise to the

level of past persecution. He also found that, while Hernandez had

a genuine subjective fear of future persecution, he did not have an

objective well-founded fear, for several reasons.         These included

that the civil war had ended in 1996, and that Hernandez's family

in Guatemala -- including his mother, two brothers, and a sister --

had not been harmed in the years since.     Accordingly, the IJ denied

Hernandez's applications for asylum and withholding of removal.

The IJ also denied his claim for protection under the CAT, finding

that Hernandez had not presented evidence showing that he was more

likely than not to be subjected to torture in Guatemala at the

behest of or with the acquiescence of the government.            The IJ

granted Hernandez's request for voluntary departure.

           Hernandez appealed the IJ's decision to the BIA, which

dismissed the appeal on July 25, 2011.      The BIA affirmed the IJ's


     2
       A refugee is a person who "is unable or unwilling to avail
himself . . . of the protection of" his country of origin "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).    If the
alien can prove past persecution based on one of these five
grounds, he is entitled to a rebuttable presumption of future
persecution. Orelien v. Gonzalez, 467 F.3d 67, 71 (1st Cir. 2006).
If he cannot show past persecution, he may still prove eligibility
by showing that he has a well-founded fear of future persecution
that is both subjectively genuine and objectively reasonable. Id.

                                   -4-
determination that Hernandez had failed to meet his burden of

proving that he was a refugee.         It rejected Hernandez's argument,

raised for the first time before the BIA, that he was entitled to

asylum based on a pattern and practice of persecution of indigenous

Mayans in Guatemala.     This claim, the BIA found, was not supported

by the record below, nor was it supported by the State Department

Country Reports for Guatemala, on which Hernandez heavily relied.

While the     Country   Reports     confirmed   widespread   discrimination

against Mayans in Guatemala, they did not depict a current pattern

of persecution.     The BIA found that Hernandez could not show an

objective well-founded fear of future persecution based on his

Mayan heritage.     Finally, the BIA affirmed the IJ's decision that

Hernandez had failed to carry his burden under the CAT, as his

generalized assertions about human rights abuses in Guatemala did

not establish that Hernandez was more likely than not to be

tortured if he returned.

             On October 23, 2011, Hernandez petitioned this court for

review of the BIA's decision.         Where, as here, the BIA adopts and

affirms part of the IJ's ruling and further justifies the IJ's

conclusions, we review both the BIA's and the IJ's opinions.           Nako

v. Holder, 611 F.3d 45, 48 (1st Cir. 2010).           We review the BIA's

and   IJ's   findings   of   fact    under   the   "substantial   evidence"

standard, based on the administrative record as a whole. Morgan v.

Holder, 634 F.3d 53, 56-57 (1st Cir. 2011).          We will not reject a


                                      -5-
factual   finding   "unless     any   reasonable   adjudicator       would     be

compelled to conclude to the contrary." 8 U.S.C. § 1252(b)(4)(B).

We review conclusions of law de novo, although with some deference

to the BIA's interpretations of the statutes it administers.

McKenzie-Francisco v. Holder, 662 F.3d 584, 586 (1st Cir. 2011).

           Substantial    evidence      supports   the       BIA's   and     IJ's

determinations that Hernandez failed to establish past persecution.

Hernandez did not offer evidence that he had been physically

injured, detained, or otherwise directly harmed by guerrilla or

government forces before his departure from Guatemala.                     While

threats alone may constitute persecution in "a small category of

cases," Tobon-Marin v. Mukasey, 512 F.3d 28, 32 (1st Cir. 2008)

(quoting Butt v. Keisler, 506 F.3d 86, 91 (1st Cir. 2007)), the

single threat that Hernandez received from the guerrillas does not

bring his case into that category.          See, e.g., Lumataw v. Holder,

582 F.3d 78, 91 (1st Cir. 2009) (holding that a single death threat

by an armed assailant did not compel a finding of past persecution

where it was a one-time incident unaccompanied by physical harm).

Hernandez does not seriously contest this point in his petition for

review, focusing instead on his claim of a well-founded fear of

future persecution based on his Mayan ethnicity.

           When   an   asylum   applicant     asserts    a   fear    of    future

persecution, he may establish eligibility on the grounds that

"there is a pattern or practice in his . . . country of nationality


                                      -6-
. . . of persecution of a group of persons similarly situated to

the applicant on account of" the five protected asylum categories.

8 C.F.R. § 1208.13(b)(2)(iii)(A).         However, "[o]ur case law has

narrowly defined 'pattern or practice' to encompass only the

systematic or pervasive persecution of a particular group based on

a protected ground, rather than generalized civil conflict or a

pattern of discrimination."    Sugiarto v. Holder, 586 F.3d 90, 97

(1st Cir. 2009).

          We   reject   Hernandez's      first   argument   that   the   BIA

evaluated his claim of a pattern or practice of persecution under

an incorrect legal standard.   Mischaracterizing the BIA's holding,

Hernandez argues that the BIA improperly required him to show that

he or his family had suffered direct harm in order to establish a

pattern or practice.     Not so.   Rather, evidence that Hernandez's

family members, who are themselves Mayan, had remained in Guatemala

without incident was one factor supporting the BIA's conclusion

that Hernandez did not face an objectively reasonable fear of

future persecution. Similarly, the lack of harm to his family also

weighs against Hernandez's claim that he will be targeted because

of his refusal to participate in the war, since he testified that

none of his other family members participated either.              We have

previously approved the BIA's reliance on such evidence under

similar circumstances.    See, e.g., Decky v. Holder, 587 F.3d 104,




                                   -7-
112 (1st Cir. 2009); Limani v. Mukasey, 538 F.3d 25, 32 (1st Cir.

2008).

           We reject Hernandez's second argument that the record

compels a finding that he has an objectively reasonable fear of

persecution based on his Mayan heritage.      Far from it.    As an

initial matter, many of the sources Hernandez cites in his petition

to this court regarding the treatment of indigenous Guatemalans

were not in the administrative record, and we may not consider

them.3   While Hernandez referred to some of these materials in his

brief before the BIA, he did not submit them as evidence. In

reviewing orders of removal, we consider only the evidence that was

properly before the agency.   See 8 U.S.C. § 1252(b)(4)(A).

           Hernandez relies mainly on the 2007 and 2008 State

Department Country Reports on Guatemala, which show that Mayans

suffer poverty and discrimination in that country.    However, the

Country Reports do not reveal a pattern or practice of persecution

of Mayans.    As the BIA noted, a showing of persecution requires

more than a showing of discrimination.   See Kadri v. Mukasey, 543

F.3d 16, 21 (1st Cir. 2008).     While the Country Reports in the

administrative record discuss widespread violence in Guatemala,



     3
        These sources include: Report of the Commission for
Historical Clarification, Guatemala: Memory of Silence; Human
Rights Watch, World Report 2011: Guatemala; Guatemala Human Rights
Commission/USA Human Rights Update June 1, 2004; and Guatemala
Human Rights Commission/USA Human Rights Review January-September
2007.

                                -8-
they do not state that the violence is directed specifically

against Mayans.        In fact, the Reports do not show that the

"clandestine"     groups   to   which    Hernandez   refers    target   any

particular population.      The 2007 Report contains an account of

three such groups operating in a Mayan town, but it is not

Hernandez's town of origin, and the Report does not indicate the

ethnicities of the victims in that town.              Moreover, although

"country conditions reports are deemed generally authoritative in

immigration cases, the contents of such reports do not necessarily

. . . supplant the need for particularized evidence in particular

cases."   Amouri v. Holder, 572 F.3d 29, 35 (1st Cir. 2009).

           We also reject Hernandez's assertion that the BIA failed

to consider his pattern or practice claim.           Again, the record is

clear that it did.     The BIA made specific reference to the Country

Reports   cited   by   Hernandez   and   concluded    that    the   evidence

demonstrated mere discrimination against Mayans, not rising to the

level of a pattern or practice of persecution.          This is a finding

of fact to which we afford deference.4       See Decky, 587 F.3d at 110


     4
       Where the BIA referred to the absence of a protected group,
it was not failing to recognize the racial status of Mayans.
Rather, it was addressing a separate ground that Hernandez had
argued before the IJ: namely, that Hernandez would face persecution
as a member of a group consisting of persons who are perceived as
wealthy upon returning from the United States. As Hernandez has
not pursued that ground in his petition to this court, we do not
resolve it.    The BIA was correct, however, to note that this
Circuit's precedent does not recognize perceived wealth as a
statutorily protected social group.     See, e.g., López-Castro v.
Holder, 577 F.3d 49, 54 (1st Cir. 2009).

                                   -9-
n.4. In short, there was substantial evidence to support the BIA's

determination that Hernandez failed to carry his burden of showing

that he had a well-founded fear of future persecution based on a

pattern or practice of persecution of Mayans.

            An applicant who fails to meet his burden of proof for

asylum has also failed to meet his burden for withholding of

removal.     To    make    out    the   latter   claim,   the   applicant    must

establish a "clear probability" of persecution, which is a more

stringent    standard     than    the     "well-founded   fear"   required   for

asylum.    Ang v. Gonzales, 430 F.3d 50, 58 (1st Cir. 2005).

            The BIA's and IJ's decisions to deny relief under the CAT

were also supported by substantial evidence.                In order to obtain

protection from removal under the CAT, an applicant must show that

he will "more likely than not" be tortured if returned to his

country of origin.        Orelien v. Gonzalez, 467 F.3d 67, 73 (1st Cir.

2006).    In order to qualify as torture, the treatment must be "an

extreme     form   of     cruel     and     inhuman   treatment,"    8   C.F.R.

§ 1208.18(a)(2), and it must be inflicted "by or at the instigation

of or with the consent or acquiescence of a public official or

other person acting in an official capacity," id. § 1208.18(a)(1).

Torture may be either physical or mental.             Id.

            Hernandez offered no evidence that he would be singled

out for torture upon his return to Guatemala.               The Country Reports

on which he relies also do not establish that Mayans are targeted


                                        -10-
for torture.   The BIA considered Hernandez's allegations about

human rights abuses in Guatemala and concluded that, although they

were relevant, these general statements were not enough to satisfy

the "more likely than not" standard. See Mendez-Barrera v. Holder,

602 F.3d 21, 28 (1st Cir. 2010) ("Although [country conditions]

reports are sometimes helpful to an alien's claim [under the CAT],

their generic nature is such that they are rarely dispositive.").

Neither the BIA nor the IJ impermissibly required Hernandez to show

that he would face physical harm in Guatemala, as he alleges in his

petition to this court.     As such, the BIA and IJ supportably

rejected Hernandez's claim for protection under the CAT.

          Finally, Hernandez argues for the first time before this

court that his hearings before the IJ and the BIA violated his due

process rights because they were not decided on a complete record.

Hernandez asserts that the IJ erroneously failed to "require" his

prior counsel to submit "all evidence available to him" in support

of Hernandez's application for asylum.     On a petition for review,

we will not address a claim if the applicant failed to exhaust it

before the agency.   See 8 U.S.C. § 1252(d)(1); Silva v. Gonzales,

463 F.3d 68, 72 (1st Cir. 2006).      This argument was available to

Hernandez in his appeal to the BIA, yet he did not raise it.   We do

not consider his argument here.

          The petition is denied.




                               -11-
