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                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 16-10901
                         Non-Argument Calendar
                       ________________________

                        Agency No. A206-252-384



FERNANDO EDGARDO MENA BURGOS,

                                                                       Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.

                       ________________________

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

                             (January 18, 2017)

Before TJOFLAT, MARCUS and FAY, Circuit Judges.

PER CURIAM:
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      Fernando Edgardo Mena Burgos (“Mena”), proceeding pro se, petitions our

court for review of the Board of Immigration Appeals’ (“BIA”) decision affirming

the Immigration Judge’s (“IJ”) denial of his application for asylum and

withholding of removal. On appeal, Mena argues he presented sufficient evidence

and testimony establishing he suffered past persecution at the hands of the Mara

Salvatrucha (“MS”) gang, and that he holds an objectively reasonable well-

founded fear that he would suffer persecution on account of his membership in two

particular social groups: (1) Salvadoran youth who reject gang recruitment, and (2)

members of his mother’s family who refuse to pay extortion fees. Upon review of

the record and the parties’ briefs, substantial evidence supports the BIA and IJ’s

conclusion that Mena failed to meet his burden of showing either past persecution

or that he may suffer future persecution due to his membership in a particular

social group. Accordingly, we affirm.

      We generally review the BIA’s decision as the final judgment, unless the

BIA expressly adopted the IJ’s decision. Ruiz v. Gonzales, 479 F.3d 762, 765

(11th Cir. 2007). When the BIA explicitly agrees with the IJ’s reasoning, we

review the decisions of both the BIA and the IJ to the extent of the agreement.

Kazemzadeh v. U.S. Att’y Gen., 577 F.3d 1341, 1350 (11th Cir. 2009). Here, the

BIA agreed with the IJ’s findings and reasoning, so both the BIA and IJ’s decisions

are subject to review. See id.


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      We review legal determinations de novo. Ayala v. U.S. Att’y Gen., 605 F.3d

941, 948 (11th Cir. 2010). Whether an asserted group qualifies as a particular

social group under the Immigration and Nationality Act (“INA”) is reviewed de

novo as a question of law. Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th

Cir. 2016).

      We review administrative fact findings for substantial evidence, a highly

deferential standard. Ayala, 605 F.3d at 948. Under the substantial-evidence test,

we affirm the IJ’s decision “if it is supported by reasonable, substantial, and

probative evidence on the record considered as a whole.” Id. We may reverse

only when compelled by the record, and we may not reweigh the evidence from

scratch. Id. The substantial-evidence test requires that we view the evidence in the

record in the light most favorable to the agency’s decision and draw all reasonable

inferences in favor of that decision. Seck v. U.S. Att’y Gen., 663 F.3d 1356, 1364

(11th Cir. 2011).

      An alien present in the United States may apply for asylum. INA

§ 208(a)(1), 8 U.S.C. § 1158(a)(1). The government has the discretion to grant

asylum if the alien establishes that he is a “refugee.” INA § 208(b)(1)(A),

8 U.S.C. § 1158(b)(1)(A). A refugee is a person “who is unable or unwilling to

return to, and is unable or unwilling to avail himself or herself of the protection of,

[his country of nationality] because of persecution or a well-founded fear of


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persecution on account of . . . membership in a particular social group.” INA

§ 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The asylum applicant bears the

burden of proving that his membership in a particular social group “was or will be

at least one central reason for persecuting the applicant.” INA § 208(b)(1)(B)(i),

8 U.S.C. § 1158(b)(1)(B)(i). In order to establish this, applicants must provide

some evidence, direct or circumstantial, of their persecutors’ motives. I.N.S. v.

Elias-Zacarias, 502 U.S. 478, 483 (1992).

      To demonstrate asylum eligibility, the applicant must, with credible

evidence, establish either (1) past persecution on account of a protected ground

such as membership in a particular social group; or (2) a well-founded fear of

persecution on account of one of the statutory factors. 8 C.F.R. § 208.13(b); Mejia

v. U.S. Att’y Gen., 498 F.3d 1253, 1256 (11th Cir. 2007). The refugee’s well-

founded fear of future persecution must be both “subjectively genuine and

objectively reasonable.” Najjar v. Ashcroft, 257 F.3d 1262, 1289 (11th Cir. 2001).

The applicant must show a “reasonable possibility” of suffering persecution, and

can do so by “presenting specific, detailed facts showing a good reason to fear that

he or she will be singled out for persecution.” Mehmeti v. U.S. Att’y Gen., 572

F.3d 1196, 1200 (11th Cir. 2009) (quotation omitted) (emphasis in original). If an

applicant establishes past persecution, it creates a rebuttable presumption of a




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“well-founded fear” of future persecution. 8 C.F.R. § 208.13(b)(1), (2); see

Sanchez v. U.S. Att’y Gen., 392 F.3d 434, 437 (11th Cir. 2004).

      Persecution is an “extreme concept,” which requires a showing of “more

than a few isolated incidents of verbal harassment or intimidation.” Sepulveda v.

U.S. Att’y Gen., 401 F.3d 1226, 1231 (11th Cir. 2005) (finding no persecution

despite alien receiving menacing phone calls and threats, coupled with a bombing

at the restaurant where she worked). Private acts of violence, general criminal

activity, and failure to cooperate with criminals do not qualify as persecution based

on a statutorily protected ground. See Ruiz, 440 F.3d at 1258; Sanchez, 392 F.3d at

438 (11th Cir. 2004) (determining that a refusal to cooperate with criminals is

insufficient to find persecution based on a political opinion). Furthermore,

recruitment by a criminal group does not necessarily constitute persecution on

account of a statutorily protected ground. See Elias-Zacarias, 502 U.S. at 482.

      A particular social group is one sharing a common characteristic that is

immutable or fundamental to its members’ individual identities or consciences.

Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1196 (11th Cir. 2006). Society’s

perception of the alleged social group is considered in determining whether that

particular social group is protected under the INA. See Matter of W-G-R-, 26

I.&N. Dec. 208, 216–17 (BIA 2014). Members of the group need not be visibly

recognizable, but there must be evidence showing that society in general perceives,


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considers, or recognizes persons sharing the particular characteristic as a group.

Id. at 217. Society must commonly recognize that the shared characteristic defines

the group. Id. Membership in a particular social group is not defined so broadly

that it becomes a “catch-all for all groups who might claim persecution.” Castillo-

Arias, 446 F.3d at 1197.

      The BIA declined to recognize social groups where the proposed members

were at no greater risk of persecution than the general public. In    In re A-M-E- &

J-G-U-, the BIA held that the social group of “wealthy Guatemalans” lacked both

(1) the requisite social visibility, because there was no evidence “to indicate that

wealthy Guatemalans would be recognized as a group that is at a greater risk of

crime in general or of extortion or robbery in particular,” and (2) the requisite

particularity, because “the concept of wealth” was too subjective “to provide an

adequate benchmark for determining group membership.” In re A-M-E- & J-G-U-,

24 I.&N. Dec. 69, 73-76 (BIA 2007).

      In a pair of companion cases similar to the one on appeal, the BIA held that

Salvadoran youth subjected to recruitment efforts by the MS gang and rejected or

resisted membership based on their own personal, moral, and religious opposition

to the gang’s values and activities did not constitute a “particular social group.”

Matter of S-E-G-, 24 I.&N. Dec. at 583-86. In S-E-G-’s companion case, Matter of

E-A-G-, the BIA refused to recognize Hondurans who resist joining gangs as a


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particular social group because they were not socially visible or distinct in

Honduran society and no evidence was presented that members of this group

possessed any characteristics that would cause other Hondurans to recognize them

as an individual who refused gang recruitment. Matter of E-A-G-, 24 I.&N. Dec.

591, 594-95 (BIA 2008). Although individuals who resist gang recruitment may

face the risk of harm from rejecting the gang, the BIA noted that the risk arises

from the individualized reaction of the gang to the specific behavior of the

prospective recruit, rather than due to his membership in a particular social group.

Id. at 594.

      Where a petitioner fails to establish an asylum claim on the merits, his claim

for withholding of removal necessarily fails. Forgue v. U.S. Att’y Gen., 401 F.3d

1282, 1288 n.4 (11th Cir. 2005); see also Nkacoang v. INS, 83 F.3d 353, 355 (11th

Cir. 1996) (“If an applicant is unable to meet the ‘well-founded fear’ standard for

asylum, he is generally precluded from qualifying for either asylum or withholding

of deportation.”).

      Here, substantial evidence supports the BIA’s denial of Mena’s asylum and

withholding claims because he failed to establish past persecution or that a

protected ground was or will be at least “one central reason” for any future

persecution.




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      First, substantial evidence supports the IJ’s and BIA’s determination that

Mena did not suffer any past persecution. His past mistreatment consisted merely

of threats and harassment, without any physical harm or attempt to kill or seriously

injure him by the gang members attempting to recruit him or seeking extortion

payments. See Sepulveda, 401 F.3d at 1231 (stating that persecution is an

“extreme concept,” which requires a showing of “more than a few isolated

incidents of verbal harassment or intimidation”). Mena testified that MS members

approached him on “about four” occasions within a single week and that, although

they threatened to kill him if he did not join their gang during at least one of these

encounters, he was only “shoved around” during these encounters and was not

physically harmed. Additionally, neither his mother nor cousins were harmed by

gang members, even after his mother failed to pay the full amount of money

demanded. See Sepulveda, 401 F.3d at 1231 (finding no persecution despite the

alien receiving menacing phone calls and threats, coupled with a bombing at the

restaurant where she worked). Mena’s past mistreatment consisted merely of

threats and harassment, without any physical harm or attempt to kill him or

seriously injure him. Thus, substantial evidence supports the BIA and IJ’s finding

that Mena failed to establish that he suffered past persecution.

      Secondly, the record does not compel a finding that any future persecution

would be on account of Mena’s membership in a statutorily protected social group.


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Neither of his asserted groups qualify as a particular social group under the INA.

His family is not a socially distinct group in Salvadoran society, see Matter of W-

G-R-, 26 I.&N. Dec. at 216–17, nor are those who resist gang recruitment. Matter

of E-A-G-, 24 I.&N. Dec. at 594-95; cf. Sanchez, 392 F.3d at 438 (determining that

persecution for refusing to cooperate with criminals is not on account of the

protected ground of political opinion). Furthermore, Mena provided no evidence

that one central reason for the MS members to target him would be due to his

membership in the proposed social groups.

      Finally, Mena failed to establish that MS members would target him: (1)

because he receives money from the United States, as opposed to having wealth for

some other reason, or (2) due to his membership in a group of young Salvadorans

resistant to gang recruitment, rather than his particular individual act of rebuffing

their recruitment efforts. Elias-Zacarias, 502 U.S. at 483. Substantial evidence

instead shows that Mena fears private acts of violence and criminal activity, which

is not a protected ground under the INA. Ruiz, 440 F.3d at 1258.

      Because Mena failed to demonstrate past persecution or a well-founded fear

of future persecution on account of a protected ground sufficient to support his

asylum claim, he necessarily fails to establish eligibility for withholding of

removal. Forgue, 401 F.3d at 1288 n.4.

      PETITION DENIED.


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