                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 13a0017n.06

                                            No. 11-4396
                                                                                          FILED
                            UNITED STATES COURT OF APPEALS                            Jan 07, 2013
                                 FOR THE SIXTH CIRCUIT                          DEBORAH S. HUNT, Clerk

 JUAN SEGUNDO CRISTOBAL-LEON,                      )
                                                   )
         Petitioner,                               )
                                                   )    ON PETITION FOR REVIEW FROM A
 v.                                                )    FINAL ORDER OF THE BOARD OF
                                                   )    IMMIGRATION APPEALS
 ERIC H. HOLDER, Jr., Attorney General,            )
                                                   )
         Respondent.                               )
                                                   )

        Before: MERRITT, MARTIN, and GILMAN, Circuit Judges.


        PER CURIAM. Juan Segundo Cristobal-Leon, a native and citizen of Guatemala, seeks

judicial review of a decision from the Board of Immigration Appeals (Board) dismissing his appeal

from a decision by an Immigration Judge (IJ) denying his applications for asylum, withholding of

removal, and relief under the Convention Against Torture.

        Cristobal-Leon illegally entered the United States in 1992. In 2007, he was detained in Butler

County, Ohio, on charges of driving on a suspended license and was referred to U.S. Immigration and

Customs Enforcement. Removal proceedings commenced and Cristobal-Leon admitted the charges

and removability at an initial hearing. Cristobal-Leon filed his applications for relief in 2009, claiming

that he feared persecution if he returned to Guatemala because his aunt had been kidnaped and her

family threatened by guerillas in Guatemala in 1990. He also claimed that he had been caught in the

middle of a gunfight between guerillas and Guatemalan soldiers in 1992. Cristobal-Leon also implied

that guerillas may have been involved in the death of his uncle, but he was not certain of this.

Cristobal-Leon feared that if he returned to Guatemala, he would be recruited by gangs and that, if he

refused to join, he would be killed.
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       The IJ determined that Cristobal-Leon’s application for asylum was untimely, pursuant to

8 U.S.C. § 1158(a). The IJ also determined that Cristobal-Leon was credible. However, the IJ

concluded that Cristobal-Leon failed to show that he had been subjected to past persecution or had

shown a well-founded fear of persecution that could support withholding of removal. The IJ also

found that Cristobal-Leon had failed to show that, more likely than not, he would be tortured in

Guatemala upon his return–and so had failed to establish eligibility for relief under the Convention

Against Torture.
       The Board dismissed Cristobal-Leon’s appeal, agreeing with the IJ that the asylum application

was untimely and that he was not entitled to withholding of removal or relief under the Convention

Against Torture.

       We lack jurisdiction to consider the IJ’s decision to deny Cristobal-Leon’s asylum application

as untimely. See 8 U.S.C. § 1158(a)(3); Castellano-Chacon v. INS, 341 F.3d 533, 544 (6th Cir. 2003).

       We have jurisdiction, however, over Cristobal-Leon’s claims of withholding of removal and

for relief under the Convention Against Torture. See 8 U.S.C. § 1252(a)(1); Singh v. Ashcroft, 398

F.3d 396, 400 (6th Cir. 2005). We review the Board’s decision to determine whether it is supported

by substantial evidence. Mostafa v. Ashcroft, 395 F.3d 622, 624 (6th Cir. 2005).

       To prevail on a request to withhold removal, an alien must show that there is a clear probability
that the alien would be subject to persecution if he or she returned to the country in question. INS v.

Cardoza-Fonseca, 480 U.S. 421, 430–31 (1987); Pablo-Sanchez v. Holder, 600 F.3d 592, 594 (6th

Cir. 2010). The Attorney General may not remove an alien to a country if the Attorney General

decides that the alien’s life or freedom would be threatened in that country because of the alien’s race,

religion, nationality, membership in a particular social group, or political opinion. 8 U.S.C.

§ 1231(b)(3)(A); Vasha v. Gonzales, 410 F.3d 863, 875 (6th Cir. 2005). The alien must show either

past persecution on account of a protected ground or a well-founded fear of future persecution based

on one of those grounds. Khozhaynova v. Holder, 641 F.3d 187, 192–93 (6th Cir. 2011).
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        In order to establish entitlement to relief under the Convention Against Torture, an alien must

prove that it is more likely than not that the alien will be tortured with the consent or acquiescence of

public officials if he or she returns to the country in question. 8 C.F.R. § 208.16(c)(2); Khozhaynova,

641 F.3d at 197. “Torture is defined as any act by which severe pain or suffering, whether physical

or mental, is intentionally inflicted on a person . . . by or at the instigation of or with the consent or

acquiescence of a public official or other person acting in an official capacity.”              8 C.F.R.

§ 208.18(a)(1).
        Cristobal-Leon failed to establish that he was subjected to persecution in the past or had a well-

founded fear of persecution in the future. He suffered no personal harm or threats when he lived in

Guatemala, and the threats to his aunt, a member of his extended family, do not support a finding of

persecution, because Cristobal-Leon admits that his immediate family, including his parents and seven

siblings, has continued to live in Guatemala without harm. See Gumbol v. INS, 815 F.2d 406, 413 (6th

Cir. 1987). Cristobal-Leon also failed to establish that he is a member of a particular social group,

because the group must share a narrowing characteristic other than the risk of being persecuted. See

Kante v. Holder, 634 F.3d 321, 327 (6th Cir. 2011). Gang threats and the refusal to be recruited into

gangs, without more, are insufficient to establish membership in a particular social group. See

Rreshpja v. Gonzales, 420 F.3d 551, 555–56 (6th Cir. 2005). The alternative social group that
Cristobal-Leon defines as Guatemalans who have lived in the United States and are perceived to have

accumulated wealth is also too general and amorphous to qualify as a particular social group. Being

perceived as an affluent Guatemalan is not a group membership recognized by either the asylum or the

withholding of removal statutes. See Rivera-Barrientos v. Holder, 658 F.3d 1222, 1234 (10th Cir.

2011); Lopez-Castro v. Holder, 577 F.3d 49, 54–55 (1st Cir. 2009); Ucelo-Gomez v. Mukasey, 509

F.3d 70, 71–74 (2d Cir. 2007).

        Finally, the IJ did not erroneously deny the Convention Against Torture claim because

Cristobal-Leon failed to present evidence that he would more than likely be tortured, with the
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acquiescence of the government or public officials, upon his return to Guatemala. Recent reports from

the United States Department of State revealed that the Guatemalan government has consistently

opposed and fought gang warfare, even if those efforts have not always been successful. Moreover,

the decisions by the Board and the IJ are supported by Cristobal-Leon’s testimony that his entire family

has continued to live in Guatemala without any apparent harm other than the civil unrest that all

Guatemalans are encountering.

       The petition for review is denied.
