               Not for Publication in West's Federal Reporter

          United States Court of Appeals
                      For the First Circuit

No. 14-2034

                        GIKLIF ELIAS LOPEZ,
                              Petitioner,

                                    v.

              LORETTA E. LYNCH, ATTORNEY GENERAL,*

                              Respondent.


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



                                 Before

                  Thompson, Selya, and Kayatta,
                         Circuit Judges.




     Michael D. Greenberg on brief for petitioner.
     Anthony J. Messuri, Trial Attorney, Office of Immigration
Litigation, Benjamin C. Mizer, Acting Assistant Attorney General,
Civil Division, and Leslie McKay, Assistant Director, Office of
Immigration Litigation, 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.
September 16, 2015
             THOMPSON, Circuit Judge.      Petitioner Giklif Elias Lopez

("Lopez"), a native and national of Colombia, seeks judicial review

of a final order of the Board of Immigration Appeals ("BIA")

affirming the immigration judge's denial of Lopez's application

for withholding of removal and for voluntary departure.             After

careful consideration, we deny Lopez's petition for review.

                                Background

             Lopez entered the United States without admission or

parole sometime in late 2000.         While in the United States Lopez

had a son, born in Connecticut on November 5, 2004.       In 2005, Lopez

left the United States for Canada, where his sister and brother-

in-law had been granted asylum.        Lopez filed his own application

for asylum in Canada but returned to the United States voluntarily

five months later because he missed his young son.        Lopez does not

know the status of his Canadian asylum application, which he left

pending upon his return to United States.         After returning to the

United States in 2006, Lopez remained in the country without

interruption.

             On May 6, 2010, Lopez was issued a Notice to Appear.      In

subsequent written filings with the immigration court, Lopez,

through counsel, conceded removability but applied for asylum,

withholding     of   removal   and,   in   the   alternative,   voluntary

departure.     In a hearing before an Immigration Judge ("IJ") on

April 11, 2011, however, Lopez's counsel clarified that Lopez was


                                      - 3 -
not pursuing an asylum claim and was applying for withholding of

removal and voluntary departure only.

           In support of his application, Lopez testified before a

different IJ on August 19, 2013.   Lopez claimed that he feared the

violence   in   Colombia,   specifically   guerillas   killing     and

kidnapping people in his hometown of Cali, Colombia.             Lopez

testified that while living in Colombia he, and other members of

his family, were targeted by the guerillas for being part of "a

group of black communities" known as "Afro-[Colombians]."1    At the

hearing, Lopez described the "Afro-[Colombians]" as "a group of

people that gets together to help each other."     Lopez explained

that this "Afro-[Colombian]" group held meetings in a private

residence in Colombia.

           Lopez recounted that sometime in 1994 or 1995 guerillas

sent him and one of his brothers threatening letters because of

their membership in this "Afro-[Colombian]" group.     According to

Lopez, one of his brothers, still residing in Colombia, continues

to receive threatening letters from the guerillas.     Lopez did not

provide specific details about the nature of these threats or the

content of the letters sent to him and his brother.




     1
      In the transcript of these proceedings, as well as in Lopez's
filings before the BIA and here, "Colombia" and "Afro-Colombian"
are frequently spelled "Columbia" and "Afro-Columbian." We have
used "Colombia" and "Afro-Colombian" throughout.


                                   - 4 -
          Aside from threats, Lopez was never harmed or physically

injured while living in Colombia.    But, in 1996, while playing

basketball with friends, one of Lopez's brothers was shot and

killed when guerillas opened fire on the basketball court.   Lopez

testified that three other people were killed in that shooting.

In addition, Lopez's brother-in-law, who was later granted asylum

in Canada, was kidnapped by guerillas sometime in 1999 or 2000.

Lopez testified that he did not know what motivated the guerillas'

attacks on his brother and brother-in-law, but he noted that his

brother-in-law had worked in the government.     In approximately

2011, two of Lopez's cousins were also killed by a group of

guerillas, who shot into a group of people playing soccer. Despite

these incidents, Lopez acknowledged that his mother and four of

his siblings continue to live in Colombia.

          In an oral opinion issued the same day as the hearing,

the IJ denied Lopez's application for withholding of removal and

voluntary departure.2   The IJ concluded that Lopez's claim failed

for lack of corroborating evidence, noting that Lopez had failed

to provide any (admittedly available) corroboration despite the

fact that he had been subject to removal proceedings since 2010




     2Before the BIA, Lopez did not challenge the IJ's denial of
his application for voluntary departure; nor does he contest it
here.


                                 - 5 -
and the removal hearing had been scheduled for over a year.3

Specifically, the IJ noted Lopez's failure to provide his brother's

death certificate, copies of the threatening letters sent to him

or   to     his   brother,      or,    indeed,    any   letters    from   his    family

corroborating any aspect of his claim.                  The IJ further concluded

that       even   if    Lopez    was     deemed     credible    and    had     provided

corroborating evidence, he had nevertheless failed to demonstrate

any past or likely future persecution.

              Lopez appealed to the BIA on September 6, 2013, arguing

that he "fear[ed] harm due to the crime and violence in his

country"      and      persecution      based,    at    least     in   part,    on   his

"membership in a particular social group."                 Lopez also argued, for

the first time, that he faced persecution based on his family

membership.

              The BIA rejected Lopez's appeal and affirmed the IJ's

findings and decision.            In addition, it concluded that Lopez had

failed to establish that he had been, or was likely to be, targeted

due to his family membership.               This timely petition for judicial

review followed.

                                         Analysis

              Before us, Lopez contends that the BIA erred first when

it determined that Lopez had not met his burden of proving he would


       3
       Lopez was represented by counsel throughout his removal
proceedings.


                                             - 6 -
be persecuted upon his return to Colombia.          Second, Lopez argues

that his case should be remanded because the IJ and BIA failed to

understand that Lopez's claim was based on race.

          In immigration cases, this court ordinarily reviews the

final decision of the BIA, "[b]ut where, as here, the BIA accepts

the IJ's findings and reasoning yet adds its own gloss, we review

the two decisions as a unit."      Moreno v. Holder, 749 F.3d 40, 43

(1st Cir. 2014) (quoting Xian Tong Dong v. Holder, 696 F.3d 121,

123 (1st Cir. 2012)). We review agency findings of fact, including

credibility    determinations,     under    the    familiar    substantial

evidence standard.       Chhay v. Mukasey, 540 F.3d 1, 5 (1st Cir.

2008).   Under this deferential standard, we will accept all

findings of fact "as long as those findings are supported by

reasonable, substantial, and probative evidence on the record

considered as a whole."      Id. (quoting INS v. Elias–Zacarias, 502

U.S. 478, 481 (1992)).

          To   qualify    for   withholding   of   removal,    Lopez   must

demonstrate that, if repatriated, he faces a clear probability of

future persecution because of his race, religion, nationality,

membership in a particular social group, or political opinion.

Costa v. Holder, 733 F.3d 13, 16 (1st Cir. 2013).             "This burden

can be carried in two ways:      the alien can show either that [he]




                                    - 7 -
has   suffered   past   persecution4    (giving   rise   to   a    rebuttable

presumption of future persecution) or that, upon repatriation, a

likelihood of future persecution independently exists."              Arévalo-

Girón v. Holder, 667 F.3d 79, 82 (1st Cir. 2012).                 Either way,

Lopez must establish that it is more likely than not that he will

be persecuted in Colombia on account of his "Afro-Colombian" or

family membership.      See id.

           In arguing that the BIA erred when it concluded that

Lopez did not face "a risk of persecution" upon his return to

Colombia, Lopez does not challenge the agency's determination that

he failed to produce sufficient corroborating evidence.               Rather,

he seems (because the petition is far from a beacon of clarity) to

argue that, because the IJ made no explicit adverse finding of

credibility, Lopez's testimony, standing alone, should have been

sufficient to sustain his burden of proof.        But the agency has the

right to require that Lopez proffer more than uncorroborated

statements if such corroboration was readily available. 8 U.S.C.

§ 1158(b)(1)(B)(ii) ("Where the trier of fact determines that the

applicant should provide evidence that corroborates otherwise

credible testimony, such evidence must be provided unless the




      4To prove persecution, Lopez "must demonstrate a certain
level of serious harm (whether past or anticipated), a sufficient
nexus between that harm and government action or inaction, and a
causal connection to one of the statutorily protected grounds."
Carvalho-Frois v. Holder, 667 F.3d 69, 72 (1st Cir. 2012).


                                       - 8 -
applicant does not have the evidence and cannot reasonably obtain

the evidence.").      And "a reviewing court must accept the IJ's

determinations with respect to the persuasiveness vel non of the

alien's testimony, the availability of corroborating evidence, and

the effect of non-production unless the record compels a contrary

conclusion."    Chhay, 540 F.3d at 6.

            Here, the IJ required something more from Lopez than his

uncorroborated statements.      Lopez offered no such evidence.5      Nor

did   he   provide   an   explanation   for   his   failure   to   provide

corroboration that he admitted was available to him. Consequently,

the agency determined that Lopez had failed to demonstrate that he

had suffered, or was likely to face, persecution in Colombia.

            Nothing in the record compels a different conclusion.

Although Lopez testified that he had received threatening letters

while living in Colombia, he provided no detail regarding these

letters and he indicated on the record that he was never physically

harmed.    "[H]ollow threats, . . . without more, certainly do not

compel a finding of past persecution."         Moreno, 749 F.3d at 44

(quoting Ang v. Gonzales, 430 F.3d 50, 56 (1st Cir. 2005)).



      5On appeal, Lopez seeks to rely on evidence that was not
presented to the agency, but we may not consider evidence not
contained in the administrative record. 8 U.S.C. § 1252 (b)(4)(A)
(noting that "the court of appeals shall decide the petition only
on the administrative record on which the order of removal is
based").



                                    - 9 -
Moreover, Lopez did not tie the violence perpetrated against his

family to any statutorily protected ground or "weav[e] [his]

family's     narrative    into     anything      resembling        a    pattern     of

systematic mistreatment."          Ruiz v. Mukasey, 526 F.3d 31, 37 (1st

Cir. 2008).    In fact, Lopez testified that he did not know why his

brother was killed or why his brother-in-law was kidnapped, and

that his cousins were killed because they happened to be playing

soccer when guerillas opened fired on the crowd.                   This testimony

does not compel the conclusion "that the unfortunate experiences

undergone by the petitioner and [his] family were more than

isolated occurrences, unrelated to family [or Afro-Colombian]

membership."     Id.; Tay-Chan v. Holder, 699 F.3d 107, 112-13 (1st

Cir. 2012) ("[F]ear of harm from general conditions of violence

and civil unrest does not even establish a well-founded fear of

persecution, the asylum standard, much less a clear probability of

persecution, the withholding of removal standard.").

             Perhaps,    the   agency   "could    have    teased        out   of   the

evidence   something     resembling     a   pattern      of   persecution"         but

"[g]iven two plausible but conflicting inferences . . . the

[agency's]    choice     between    those   inferences        is   by    definition

supported by substantial evidence."           Ruiz, 526 F.3d at 37.

             As for Lopez's second appellate argument that the IJ and

the BIA failed to understand that his claims were based on race,

this issue is not properly before us.              Makhoul v. Ashcroft, 387


                                        - 10 -
F.3d 75, 80 (1st Cir. 2004) ("[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.").                    In Lopez's briefs

before the BIA he did not claim that he faced persecution based on

his race.        Nor did he argue that the IJ had misunderstood his

arguments.       Rather, Lopez echoed his earlier statements to the IJ,

arguing that he had been threatened "due to his involvement in a

community    based     group   for     black    people,"      called    the    "Afro-

[Colombians] Group," where he "served as a member."

             In his initial application for asylum and withholding of

removal, Lopez did indicate -- by checking the box -- that his

application was based, in part, on race.                  Aside from this single

notation, however, Lopez did not rely on race, in either his

written materials or his testimony before the IJ, when detailing

the harm that he and his family had suffered.                   It is unclear why

this argument was abandoned.           To the extent that Lopez is arguing

that the argument was never abandoned, the IJ's decision made clear

that she had not interpreted Lopez's arguments to include race.

Nevertheless, Lopez did not argue to the BIA that the IJ had

improperly failed to consider his race in denying his withholding

of removal application.        His failure to present developed argument

to   the   BIA    on   this   theory   amounts       to   a   failure   to    exhaust

administrative         remedies      and,      therefore,      we   are       without




                                            - 11 -
jurisdiction to consider this argument.   Ramirez-Matias v. Holder,

778 F.3d 322, 327 (1st Cir. 2015).

          For the reasons articulated above, the petition for

review is denied.




                                - 12 -
