                                                             [DO NOT PUBLISH]


            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________          FILED
                                               U.S. COURT OF APPEALS
                            No. 09-16241         ELEVENTH CIRCUIT
                                                     JUNE 24, 2011
                        Non-Argument Calendar
                                                      JOHN LEY
                      ________________________
                                                       CLERK

                Agency Nos. A088-003-991, A088-003-992

PHILOME PIERRE,
MARIE DOR CANGE PIERRE,
AGNODESKY PIERRE,

                                                                    Petitioners,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                   Respondent.


                      ________________________

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

                              (June 24, 2011)

Before HULL, MARTIN and ANDERSON, Circuit Judges.

PER CURIAM:
      Philome Pierre, a native and citizen of Haiti, petitions for review of the final

order of the Board of Immigration Appeals (“BIA”), which affirmed the

Immigration Judge’s (“IJ”) denial of his claims for asylum and withholding of

removal under the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., and

relief under the United Nations Convention Against Torture. The IJ rejected

Pierre’s application for relief based on membership in a particular social group,

finding that he and his family were ineligible for asylum, despite the fact that he

suffered past persecution at the hands of Haiti’s anti-government group, the

Lavalas group. The IJ found that Pierre’s purported social group, namely,

employees at the U.S. Embassy in Haiti, was not a particular social group because

it was not a group readily identifiable in society. The IJ also found that the

persecution that Pierre suffered was a risk normally associated with his

employment as a uniformed security guard at the embassy. The BIA affirmed the

IJ’s decision without opinion.

      When the BIA affirms an immigration judge’s decision without opinion, the

immigration judge’s decision is reviewed as the final order of the agency.

Sepulveda v. U.S. Att’y Gen., 401 F.3d 1226, 1230 (11th Cir. 2005). To the extent

that the IJ’s decision was based on a legal determination, we conduct a de novo

review. Castillo-Arias, 446 F.3d at 1195. We review factual determinations under

the substantial evidence test, and will affirm the decision if it is supported by
                                           2
reasonable, substantial, and probative evidence on the record as a whole.

Kueviakoe v. U.S. Att’y Gen., 567 F.3d 1301, 1304 (11th Cir. 2009). Under this

test, we view all evidence in the light most favorable to affirming the agency’s

decision and will reverse the IJ’s findings “only when the record compels” it.

Adefemi v. Ashcroft, 386 F.3d 1022, 1027 (11th Cir. 2004) (en banc). We “cannot

find, or consider, facts not raised in the administrative forum, nor can we reweigh

the evidence from scratch.” Id. Even if the evidence could support multiple

conclusions, we will affirm the agency’s decision unless there is no reasonable

basis for the decision. Id. at 1029.

      The Attorney General or Secretary of Homeland Security has discretion to

grant asylum if the alien meets the definition of “refugee.” 8 U.S.C.

§ 1158(b)(1)(A). Refugee is defined as

      any person who is outside any country of such person’s nationality . . .
      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 establishing asylum eligibility by

proving his status as a refugee under the statute. Al Najjar v. Ashcroft, 257 F.3d

1262, 1284 (11th Cir. 2001). To establish asylum eligibility based on past

                                          3
persecution, the applicant must prove that (1) he was persecuted, and (2) that the

persecution was on account of a protected ground, including race, religion,

nationality, political opinion, or membership in a particular social group. Id. To

establish a nexus between the persecution and the protected ground, an alien

seeking asylum must demonstrate that one of the statutorily enumerated grounds

“was . . . at least one central reason” for his persecution. See INA

§ 208(b)(1)(B)(i); 8 U.S.C. § 1158(b)(1)(B)(i).

      The BIA has defined persecution on account of membership in a particular

social group as “persecution that is directed toward an individual who is a member

of a group of persons all of whom share a common, immutable characteristic.”

Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985), overruled on other

grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987). The

immutable characteristic must be “one that members of the group either cannot

change or should not be required to change because it is fundamental to their

individual identities or consciences.” Id.

      (a)    Whether we should continue to apply the BIA’s social visibility
             criterion to determine whether a particular social group has been
             established

      On review, Pierre argues that the BIA’s social visibility criterion

requirements are arbitrary, inconsistent, and contrary to the law, and accordingly



                                             4
requests that we overturn precedent upholding the BIA’s definitions of a particular

social group.

      Congress did not expressly define what constitutes a “particular social

group,” pursuant to 8 U.S.C. § 1231(b)(3)(A), INA § 241(b)(3)(A). Following

Acosta, the BIA further defined its requirements for a particular social group,

holding that “membership in a purported social group requires that the group have

particular and well-defined boundaries, and that it possess a recognized level of

social visibility.” Matter of S-E-G-, 24 I. & N. 579, 582 (BIA 2008). The

particularity requirement is defined as “whether the proposed group can accurately

be described in a manner sufficiently distinct that the group would be recognized,

in the society in question, as a discrete class of persons.” Id. at 584. The social

visibility requirement asks whether the shared characteristic of the group is

generally recognized by others in the community and whether the members of the

group are perceived as such by society. Id. at 586.

      In Castillo-Arias, we affirmed the BIA’s definitions and requirements for

establishing a particular social group. 446 F.3d at 1196-97. A panel of this Court

held that the BIA’s definition “strikes an acceptable balance between (1) rendering

‘particular social group’ a catch-all for all groups who might claim persecution,

which would render the other four [statutorily enumerated] categories meaningless,



                                           5
and (2) rendering ‘particular social group’ a nullity by making its requirements too

stringent or too specific.” Id. at 1197.

      In this Circuit, a panel is bound by prior panel decisions.

United States v. Steele, 147 F.3d 1316, 1318 (11th Cir. 1998) (en banc). We must

follow prior panel decisions until such time as they are overruled by either this

Court sitting en banc or the United States Supreme Court. Cargill v. Turpin, 120

F.3d 1366, 1386 (11th Cir. 1997).

      Here, because Castillo-Arias has not been overruled by this Court sitting en

banc or by the Supreme Court, we are bound to apply this precedent. See Cargill,

120 F.3d at 1386. We must accordingly continue to apply the BIA’s definition of a

particular social group and reject Pierre’s argument that the social visibility

criterion should not be considered in this appeal. See Hansen, 262 F.3d at 1248-

50.

      (b)    Whether Pierre met the BIA’s requirements for social visibility by
             establishing that he was one of a group of uniformed watchmen at
             the U.S. Embassy in Haiti

      Pierre argues that he was socially visible because he wore a uniform while

performing his duties as a watchman at the United States Embassy in Haiti, and

that he qualifies as a member of a particular social group under the Acosta

formulation because of his immutable characteristic as a past uniformed employee

at the embassy.
                                           6
       Based on the BIA’s particularity and social visibility criterion for

establishing a particular social group, in some circumstances, a group of uniformed

security guards working at an embassy could qualify as a particular social group.

See S-E-G-, 24 I. & N. at 582, 586. Here, however, the fact that Pierre was a

uniformed security guard does not, without more evidence, establish that the group

he was a member of would be generally recognized and perceived as a group in

their community. See id. Because Pierre failed to present evidence or testimony

establishing that his alleged group was socially visible, the agency’s finding that

Pierre was not entitled to asylum relief as a member of a particular social group

was supported by substantial evidence in the record, and accordingly, we affirm.1

See Adefemi, 386 F.3d at 1027; Al Najjar, 257 F.3d at 1284.

       AFFIRMED.2




       1
                Because we find that Pierre failed to meet his burden of establishing that he was
persecuted based on membership in a particular social group, we need not address the issue of
whether the district court erred in finding that his persecution based on membership in a
particular social group was a risk normally associated with his employment.

       2
               Pierre’s request for oral argument is denied.
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