                                                               [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                    FILED
                      FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                        ________________________ ELEVENTH CIRCUIT
                                                                 July 30, 2009
                              No. 09-10190                     THOMAS K. KAHN
                          Non-Argument Calendar                     CLERK
                        ________________________

                          Agency No. A097-643-727

ANDRES RAMOS VAIL,


                                                                       Petitioner,

                                    versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.


                        ________________________

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

                                (July 30, 2009)

Before HULL, WILSON and FAY, Circuit Judges.

PER CURIAM:

     Andres Ramos Vail, a native and citizen of Guatemala proceeding pro se on
appeal, seeks review of the decision of the Board of Immigration Appeals (“BIA”)

affirming the Immigration Judge’s (“IJ”) order of removal and denial of his

application for asylum and withholding of removal under the Immigration and

Nationality Act (“INA”), and relief under the United Nations Convention Against

Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment

(“CAT”), 8 U.S.C. §§ 1158, 1231, 8 C.F.R. § 208.16(c).

      Before the IJ and the BIA, Vail argued that he was persecuted based on his

membership in a particular social group, testifying that members of the Maras

criminal gang threatened his life for refusing to join them and came to his house at

least twice. The IJ found Vail credible, but that he had not established harm that

rose to the level of past persecution or a well-founded fear of future persecution.

Further, the IJ found that because Vail did not meet his burden of proof for asylum,

he necessarily failed to meet the higher burden for withholding of removal, and

was also ineligible for CAT relief. The BIA dismissed Vail’s appeal, agreeing with

the IJ that Vail’s credible account of threats from gang members who were trying

to recruit him, without physical or other harm, did not establish past persecution or

a well-founded fear of future persecution. The BIA further noted that resistance to

gang recruitment is not a basis for asylum, and that Vail failed to offer any other

challenge to the IJ’s decision.

      On appeal, Vail argues for the first time that he was persecuted based on his
                                           2
membership in the particular social group of the Mayan Indians. He contends that

he and his family were threatened because they are Mayan, and argues that the IJ

failed to take into account the cumulative effect of the multiple harms he suffered

at the hands of the Maras.

      “We review only the [BIA’s] decision, except to the extent that it expressly

adopts the IJ’s opinion. Insofar as the Board adopts the IJ’s reasoning, we will

review the IJ’s decision as well.” Al Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th

Cir. 2001) (citations omitted). Because the BIA agreed with the IJ’s findings, we

review the decisions of both the IJ and the BIA. See id.

       To the extent that the IJ’s and the BIA’s decisions were based on a legal

determination, review is de novo. D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814,

817 (11th Cir. 2004). Factual determinations are reviewed under the substantial

evidence test, which requires us to “view the record evidence in the light most

favorable to the agency’s decision and draw all reasonable inferences in favor of

that decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1029 (11th Cir. 2004) (en

banc). We must affirm the BIA’s decision “if it is supported by reasonable,

substantial, and probative evidence on the record considered as a whole.”

D-Muhumed, 388 F.3d at 818 (quotation omitted). “To reverse the . . . fact

findings, 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).
                                          3
      An alien who arrives in or is present in the United States may apply for

asylum. INA § 208(a)(1), 8 U.S.C. § 1158(a)(1). The Attorney General or

Secretary of the Department of Homeland Security has discretion to grant asylum

if the alien meets the INA’s definition of a “refugee.” INA § 208(b)(1), 8 U.S.C.

§ 1158(b)(1). A “refugee” is:

      any person who is outside any country of such person’s nationality or,
      in the case of a person having no nationality, is outside any country in
      which such person last habitually resided, and who is unable or
      unwilling to return to, and is unable or unwilling to avail himself or
      herself of the protection of, that country 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)(A). The asylum applicant carries the burden of proving

statutory “refugee” status. 8 C.F.R. § 208.13(a); Al Najjar, 257 F.3d at 1284. To

establish eligibility, the alien must, with specific and credible evidence, establish

(1) past persecution on account of a statutorily listed factor, or (2) a well-founded

fear that the statutorily listed factor will cause future persecution. 8 C.F.R.

§ 208.13(a) and (b); Al Najjar, 257 F.3d at 1287.

      The BIA has held that a “particular social group” refers to persons who

“share a common, immutable characteristic . . . such as sex, color, or kinship ties,

or in some circumstances . . . a shared past experience such as former military

leadership or land ownership.” Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA

                                           4
1985), overruled on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439,

447 (BIA 1987). Furthermore, the group must have sufficient “social visibility,”

and persecution based on membership in a particular social group should not be

defined so broadly that it becomes “a catch-all for all groups who might claim

persecution . . . .” Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1196-98 (11th

Cir. 2006); see also Matter of E-A-G-, 24 I. & N. Dec. 591, 594-95 (BIA 2007)

(holding that “[p]ersons who resist joining gangs have not been shown to be part of

a socially visible group within Honduran society.”).

      Furthermore, “persecution is an extreme concept, requiring more than a few

isolated incidents of verbal harassment or intimidation, [while] . . . mere

harassment does not amount to persecution.” Sepulveda v. U.S. Att’y Gen., 401

F.3d 1226, 1231 (11th Cir. 2005) (per curiam) (quotations and alteration omitted).

In determining whether an alien has suffered past persecution, the fact-finder must

consider the cumulative effects of any alleged incidents. Delgado v. U.S. Att’y

Gen., 487 F.3d 855, 861-62 (11th Cir. 2007) (per curiam).

      To establish a well-founded fear of future persecution, the applicant must

show that there is a “reasonable possibility” of suffering persecution if he returns

to his home country. Mejia v. U.S. Att’y Gen., 498 F.3d 1253, 1256 (11th Cir.

2007) (quotation omitted). The fear of persecution must be “subjectively genuine

and objectively reasonable.”      Al Najjar, 257 F.3d at 1289.        “The subjective
                                           5
component is generally satisfied by the applicant’s credible testimony that he or

she genuinely fears persecution,” and “[i]n most cases, the objective prong can be

fulfilled either by establishing past persecution or that he or she has a good reason

to fear future persecution.” Id. (quotation omitted). The alien must show a nexus

between a statutorily protected ground and the feared persecution, and he can do so

by presenting “specific, detailed facts showing a good reason to fear that he or she

will be singled out for persecution on account of” the statutorily listed factor.

Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1286 (11th Cir. 2005) (quotation

omitted).

      However, the alien does not need to prove that he would be “singled out” for

persecution if (1) there is a “pattern or practice” of persecution against similarly

situated individuals and (2) his or her inclusion within that group of individuals

makes fear of persecution reasonable. See 8 C.F.R. § 208.13(b)(2)(iii). Once an

applicant makes an initial showing of fear of future persecution, the government

may rebut his evidence by “demonstrating, based upon a preponderance of the

evidence, that the applicant could avoid future persecution by relocating within the

country if, under all the circumstances, it would be reasonable to expect the

applicant to do so.” De Santamaria v. U.S. Att’y Gen., 525 F.3d 999, 1008 (11th

Cir. 2008) (quotation omitted).

      Because Vail raises for the first time on appeal that he was persecuted
                                          6
because he is Mayan, we lack jurisdiction to consider that argument. See Amaya-

Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250 (11th Cir. 2006) (per curiam)

(stating that the exhaustion requirement is jurisdictional, such that we lack

jurisdiction to consider an alien’s challenge to the IJ’s determination that was not

raised before the BIA). Further, Vail failed to raise any argument in his brief about

the denial of CAT relief and thus has abandoned that issue. See Sepulveda, 401

F.3d at 1228 n.2.

      As for Vail’s argument that the IJ failed to consider the cumulative effect of

the multiple harms he suffered at the hands of the Maras, the record shows that

Vail has failed to establish past persecution or a well-founded fear of future

persecution on account of a statutorily listed factor. First, Vail does not identify

the particular social group to which he allegedly belongs; we agree with the IJ that

if the group is young men in Guatemala who have been threatened with harm due

to their refusal to join a gang, the group fails to meet the definition of a particular

social group as defined under the INA. See Castillo-Arias, 446 F.3d at 1196-98;

Acosta, 19 I. & N. Dec. at 233. This group is overly broad, Vail presented no

evidence of its social visibility, and the group’s defining attribute would be its

persecution by gangs. See id. Further, the BIA has held that persons who resist

gang membership do not constitute a “socially visible group.” E-A-G-, 24 I. & N.

Dec. at 594-95.
                                           7
      Yet even if Vail had established membership in a statutorily protected group,

substantial evidence supports the IJ’s and BIA’s finding that Vail failed to show

past persecution. Vail’s allegations of persecution rest on two visits to his house

by members of the Maras, who threatened to kill him if he refused to join the gang

or went to the police.    Under our case law, this conduct does not compel the

conclusion that Vail suffered past persecution, particularly in light of his testimony

that he suffered no physical harm. Sepulveda, 401 F.3d at 1231.

      The record also supports the finding that Vail failed to establish a well-

founded fear of future persecution and that such fear was reasonable. Again, the

only basis for his claim of fear of future persecution were two threats by the Maras.

Vail failed to present “specific, detailed facts showing a good reason to fear that he

. . . will be singled out for persecution on account of” a statutorily listed factor.

Forgue, 401 F.3d at 1286; Al Najjar, 257 F.3d at 1287 (quotation omitted).

Moreover, because Vail failed to establish eligibility for asylum, his withholding of

removal claim necessarily fails. Sepulveda, 401 F.3d at 1232-33 (a petitioner must

demonstrate that it is “more likely than not” that he would be persecuted if he were

to return to his country of origin, a more stringent standard than required for

asylum eligibility).

      Thus, we conclude that substantial evidence supports the IJ’s and the BIA’s

determination that Vail has not shown past persecution on account of a protected
                                          8
ground or a reasonable fear of future persecution if he were to return to Guatemala.

Thus, he is ineligible for asylum and necessarily cannot meet the more stringent

standard for withholding of removal. Accordingly, we deny Vail’s petition as to

asylum and withholding of removal, and dismiss his petition as to CAT relief.

      PETITION DENIED IN PART, DISMISSED IN PART.




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