                Not for Publication in West's Federal Reporter

          United States Court of Appeals
                       For the First Circuit


No. 16-1154

               SILVIA VERÓNICA GUEVARA-DE VILORIO,

                               Petitioner,

                                     v.

                         LORETTA E. LYNCH,
              ATTORNEY GENERAL OF THE UNITED STATES,

                               Respondent.


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


                                  Before

                 Torruella, Lipez, and Thompson,
                         Circuit Judges.


     Jason Panzarino and the Law Office of Johanna Herrero, on
brief for petitioner.
     Zoe J. Heller, Trial Attorney, Office of Immigration
Litigation, U.S. Department of Justice, Benjamin C. Mizer,
Principal Deputy Assistant Attorney General, Civil Division, and
Paul Fiorino, Senior Litigation Counsel, Office of Immigration
Litigation, on brief for respondent.


                            January 9, 2017
               TORRUELLA, Circuit Judge.         Silvia Verónica Guevara-de

Vilorio ("Guevara") petitions for review of a decision by the Board

of Immigration Appeals ("BIA"), which denied her application for

asylum and withholding of removal under §§ 208 and 241(b)(3) of

the    Immigration     and   Naturalization      Act,        8    U.S.C.   §§    1158,

1231(b)(3),      and   for   protection    under       the       Convention     Against

Torture ("CAT"), 8 C.F.R. §§ 1208.16-18.                     Because Guevara has

failed    to    establish    persecution    or     a    well-founded          fear   of

persecution, and has likewise failed to establish that she is a

member of a protected group, we deny her petition for review.

                               I.   Background

               Guevara was born in El Salvador on March 8, 1981, and

entered the United States in November 2005.                  After she was charged

with removability on September 14, 2006, she filed her asylum

application, and also requested withholding of removal and CAT

protection.       She has resided in Massachusetts for over a decade,

and has no criminal history or criminal arrests.                      She has three

U.S. citizen children.

               Before an Immigration Judge ("IJ"), Guevara testified

that while she, her husband, and their two children were living in

El Salvador, her husband Manuel Vilorio ("Vilorio") had run a

successful trucking business.1       Members of a powerful gang demanded


1   Vilorio had entered the United States in 1993 and applied for

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weekly payments from Vilorio and threatened him and his family

with death if he did not pay the extortion demands.             Vilorio told

Guevara that on one delivery, he had been followed by a car filled

with gang members wielding guns, and on another occasion gang

members had beaten him.          Her husband never paid the extortion

demands, and, fearing harm, came to the United States in April

2003.     After Vilorio left the country, gang members continued to

frequent Guevara's home, demanding to know the whereabouts of her

husband and leaving notes demanding money and threatening her with

harm if she did not comply, although she was never physically

harmed.       Guevara testified that she cannot return to El Salvador

because the gangs are still powerful and because she would not be

able to support herself there.

              Guevara was initially a derivative on her husband's

asylum application.        Vilorio separated from the family in 2010.

Still, the couple were scheduled to attend an immigration court

hearing on December 11, 2011.         After Vilorio failed to attend this

hearing, the judge ordered his removal in absentia.                   Guevara's

case    was    severed   from   her   husband's   and   she   filed    her   own




asylum in 1994, claiming that he and his family had been persecuted
by guerrillas and ex-guerrillas. Vilorio returned to El Salvador
in 1998, and married Guevara in 1999. He returned to the United
States in 2003, due to threats from gangs in El Salvador.


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application for asylum and withholding of removal on February 6,

2013.

             On September 19, 2014, Guevara attended a hearing before

the IJ, at the end of which the IJ issued an oral decision denying

Guevara's    asylum,   withholding    of   removal,     and   CAT   protection

applications, and finding that she was not eligible for voluntary

removal.     The IJ found Guevara's testimony not credible based on

discrepancies     between   statements      made   in     Vilorio's     asylum

application -- by then already two decades old -- and Guevara's

testimony.     Specifically, the IJ noted that Vilorio had made no

mention of a trucking business, but rather had indicated that he

had been a cook; Vilorio had stated that he had left El Salvador

because he had been threatened and recruited by the guerrillas;

and Vilorio had stated that he had never been threatened or

physically harmed.       The IJ further noted that though Guevara

testified that the gang members continued to extort money from her

after Vilorio had left the country, she made no such claim in her

application -- and the IJ did not find convincing her explanation

that she forgot to put it down.            The IJ did acknowledge that

Vilorio stated that he had once been followed by gang members

presumably seeking to steal his car or money.

             Alternatively, the IJ found that even if her testimony

had been credible, Guevara had failed to demonstrate that she


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either had been a victim of past persecution or that she had a

well-founded fear of future persecution based on a statutorily

protected ground.         He found that the threats she received were not

immediate or menacing enough to rise to the level of persecution.

To the extent that Guevara fears extortion and harm by gangs if

she were to return, the IJ found that such acts do not constitute

persecution on account of a protected ground.                    Though Guevara

claimed that she would be harmed on account of her membership in

a particular social group made up of individuals perceived as

wealthy,      the    IJ   ruled    that   the   group   was    not   sufficiently

particular or socially distinct.            Even assuming the cognizability

of such a group, the IJ found that Guevara had not demonstrated

the required nexus between the harm she fears and her status as

the wife of a man with a lucrative business.                  Because she failed

to demonstrate sufficient proof for her asylum application, the IJ

found that she necessarily failed to meet the higher burden of

proof required for withholding of removal, and that she had failed

to establish the necessary grounds for CAT protection.                 Thus, the

IJ   denied    her    relief      and   protection   applications.       Guevara

appealed to the BIA on October 14, 2014, but did not file an appeal

brief.

              On January 15, 2016, the BIA affirmed the IJ's denial of

asylum.    Without addressing the IJ's adverse credibility finding,


                                          -5-
the BIA found that even if she had testified credibly, Guevara had

failed to establish past persecution or an objectively reasonable

fear of future persecution on a protected ground.                             The threats

were    neither    so    immediate     nor    so     menacing       as   to    constitute

persecution,      and    the   gang's    extortion         was      criminal     but    not

persecutory.      Similarly, the BIA found that fear of gang violence

and extortion is not "on account of" a protected ground.                          The BIA

found   no   evidence     of   political       opinion,        and   determined        that

Guevara's proposed social group of wealthy individuals lacked the

particularity and social distinction to constitute a particular

social group.      The BIA likewise found that because she had not met

her burden for asylum, Guevara necessarily had not satisfied the

higher clear probability standard for withholding of removal, nor

had she demonstrated that it was more likely than not that she

would   be   tortured     in   El    Salvador      so     as   to    qualify     for   CAT

protection.       Guevara now petitions this Court to review the BIA's

decision.

                           II.      Standard of Review

              This Court reviews the BIA's findings of fact and

determinations      of    credibility        under    a    "substantial         evidence"

standard.     See 8 U.S.C. § 1252(b)(4)(B); INS v. Elías-Zacarías,

502 U.S. 478, 481 n.1 (1992).                A court "accept[s] the agency's

findings of fact, including credibility findings, as long as they


                                         -6-
are 'supported by reasonable, substantial, and probative evidence

on the record considered as a whole.'"                         Segran v. Mukasey, 511

F.3d 1, 5 (1st Cir. 2007) (quoting Elías-Zacarías, 502 U.S. at

481).    Under this deferential standard of review, a court will

reverse only if "any reasonable adjudicator would be compelled to

conclude to the contrary."             8 U.S.C. § 1252(b)(4)(B).              "Unless the

evidence 'points unerringly in the opposite direction,' that is,

unless it compels a contrary conclusion, the findings must be

upheld."     Segran, 511 F.3d at 5 (quoting Laurent v. Ashcroft, 359

F.3d 59, 64 (1st Cir. 2004)).                Questions of law are reviewed de

novo.    Liu v. Holder, 714 F.3d 56, 59 (1st Cir. 2013).

                                    III.    Discussion

             Guevara       spends     substantial            portions    of   her   briefs

assailing the IJ's determination that she lacked credibility.

However,     the     BIA      did    not     rely       on     the    IJ's    credibility

determination.           Rather,      the    BIA    "affirm[ed]         the   Immigration

Judge's denial of asylum based on the determination that, even if

the respondent testified credibly, she did not establish past

persecution        or    an     objectively-reasonable                fear    of    future

persecution on a protected ground under the Act."                         "Where the BIA

does not adopt an IJ's opinion but instead makes an independent,

superceding decision, we review the decision of the BIA, and not

that    of   the   IJ.        Because      the    BIA   made     no     determination   of


                                            -7-
[petitioner]'s        credibility     in     reaching      its     decision,

[petitioner]'s credibility is not an issue here."          Xu v. Gonzales,

424 F.3d 45, 48 (1st Cir. 2005)(internal citations omitted).

Therefore,    "[w]e   cannot   and   need   not   review   the   credibility

determination of the IJ."      Id.

             As to her remaining arguments, Guevara bears the burden

of demonstrating that she is "unable or unwilling to return" to

her home 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).     She has failed to meet this burden.

             Guevara contends that she is a member of a social group,

namely successful entrepreneurs who resist the demands of gangs.

But "we have rejected proposed social groups 'based solely on

perceived wealth, even if signaling an increased vulnerability to

crime,' regardless of why one is perceived as wealthy."           Beltrand-

Alas v. Holder, 689 F.3d 90, 94 (1st Cir. 2012) (quoting García-

Callejas v. Holder, 666 F.3d 828, 830 (1st Cir. 2012)).             We have

also "decided a number of cases that have rejected the argument

that people who oppose gang membership or recruitment are members

of a particular social group."       Id. at 93 (citing García-Callejas,

666 F.3d at 830 (1st Cir. 2012)).




                                     -8-
          Guevara also argues that the threats from gangs she faced

in El Salvador amount to persecution, and she is therefore entitled

to a presumption of future persecution.               In order for threats to

rise to the level of persecution, however, they must have been "so

menacing as to cause significant actual 'suffering or harm.'"

Bonilla v. Mukasey, 539 F.3d 72, 77-78 (1st Cir. 2008) (holding

that the BIA was not compelled to find past persecution based upon

evidence of a string of threatening phone calls, a threatening

letter identifying Bonilla as a military target, and graffiti).

The threats Guevara has alleged were not so menacing as to compel

a reasonable adjudicator to find that Guevara has suffered from

persecution,   and     Guevara   has     not   alleged     any   physical   harm.

Guevara's efforts to claim that she suffered persecution through

emotional harm are similarly to no avail.                 This Court recognizes

that "under the right set of circumstances, a finding of past

persecution    might   rest   on    a    showing     of   psychological     harm."

Makhoul v. Ashcroft, 387 F.3d 75, 80 (1st Cir. 2004).                  However,

Guevara failed to provide any testimony or other evidence that the

threatening notes caused her any psychological harm.

                              IV.       Conclusion

          Guevara's petition for review is denied.




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