      United States Court of Appeals
                      For the First Circuit


No. 11-1214

                 ERIKA DE CARVALHO-FROIS ET AL.,

                           Petitioners,

                                v.

              ERIC H. HOLDER, JR., ATTORNEY GENERAL,

                           Respondent.


              PETITION FOR REVIEW OF AN ORDER OF THE

                   BOARD OF IMMIGRATION APPEALS


                              Before

                    Boudin, Selya and Howard,
                         Circuit Judges.


     Carlos E. Estrada on brief for petitioner.
     Tony West, Assistant Attorney General, Civil Division, Anthony
W. Norwood, Senior Litigation Counsel, and Lisa Morinelli, Trial
Attorney, Office of Immigration Litigation, on brief for
respondent.



                         January 26, 2012
          SELYA, Circuit Judge.         The lead petitioner, Erika de

Carvalho-Frois, is a Brazilian national.1             She seeks judicial

review of a final order of the Board of Immigration Appeals (BIA),

which upheld a denial of asylum by an immigration judge (IJ).

After careful consideration, we deny the petition for judicial

review.

          The facts are not complicated.        The petitioner entered

the United States illegally on December 31, 2006.             During her

entry, she was apprehended by the Department of Homeland Security

(DHS).    About   two   months   later,   the   DHS    initiated   removal

proceedings on the ground that the petitioner had entered the

United States without a valid entry document.              See 8 U.S.C.

§ 1182(a)(7)(A)(i)(I).    The petitioner conceded removability and

cross-applied for asylum and other relief.2

          In her asylum application and in her testimony before the

IJ, the petitioner related that she had repaired to the United



     1
       The lead petitioner's minor son, Jonathon Carvalho-Albino
Frois, is a derivative beneficiary of her asylum application (and,
thus, is also a petitioner). See 8 U.S.C. § 1158(b)(3)(A). For
ease in exposition, we discuss the case as if the lead petitioner
were the only affected party. Our decision is, of course, binding
upon both petitioners.
     2
       In addition to asylum, her original application sought
withholding of removal and protection under the United Nations
Convention Against Torture (CAT). The agency denied that relief.
In this court, the petitioner contests only the denial of her
asylum application. Consequently, we deem any arguments related to
either her withholding of removal or CAT claims abandoned. See
Nikijuluw v. Gonzales, 427 F.3d 115, 120 n.3 (1st Cir. 2005).

                                  -2-
States after witnessing two men fleeing from the scene of a

neighbor's murder. Specifically, she said that on August 16, 2006,

she heard gunshots while at home and saw two men leaving the

neighbor's abode.    As they left, one of them told her, "I know you

saw everything.     You're in danger.   Be very careful."   Later that

evening, police officers found the neighbor's bullet-riddled body.

            The petitioner took her son to her mother's house for the

night.   Upon returning home the next day, she received a telephone

call, presumably from one of the assailants.        The voice on the

other end of the line said: "We know where, where you live.        We

know you.   Please do not talk to the police about this, because if

you do we will kill you."         Following this conversation, the

petitioner again retreated to her mother's house.           She never

returned home.

            Approximately three weeks later, while the petitioner was

bringing her son to school, she spotted the man who had threatened

her on the night of the murder.     She did not exchange words with

him. Roughly four months after this encounter, she departed Brazil

for the United States.

            The petitioner testified that she never reported these

incidents to the police because, in her view, the police in Brazil

are corrupt and often allow criminals to kill witnesses.        In an

effort to support this supposition, she submitted various country-

conditions reports, human rights reports, and a newspaper article.


                                  -3-
The petitioner further testified that she feared that she and her

son would be killed either by the murderers or by the police should

they return to Brazil.   She admitted, however, that she had never

been threatened by any police officer.

          The IJ denied the petitioner's asylum application.    She

credited the petitioner's testimony regarding the threats,3 but

concluded that the petitioner had failed to establish either past

persecution or a well-founded fear of future persecution.

          The IJ deemed the evidence insufficient to show past

persecution for three reasons. First, the threats were not serious

enough to qualify as persecution.     Second, the petitioner's fear

was unconnected to any statutorily protected ground.   Although she

claimed "social group" membership, her professed social group —

witnesses to a serious crime whom the government is unable or

unwilling to protect — was not legally cognizable.      Third, the

petitioner did not establish that the Brazilian government was

either unable or unwilling to protect her from the harm that she

feared.




     3
        Nevertheless,   the   IJ  stated   that   there  was   an
"extraordinarily troubling disconnect" between the petitioner's
testimony and two of the exhibits. Shortly after her arrival, the
petitioner stated in an interview with a border patrol agent and
reaffirmed in a separate sworn statement that her purpose for
entering the United States was to find work. When asked if she
might be harmed upon returning to Brazil, the petitioner answered
unqualifiedly in the negative.

                                -4-
              The IJ likewise determined that the petitioner had no

well-founded fear of future persecution. She mentioned some of the

same reasons that she had recounted in rejecting the claim of past

persecution. Additionally, the IJ determined that the petitioner's

stated fear of returning to Brazil was objectively unreasonable

because the petitioner had not established that the Brazilian

authorities could not or would not protect her if she returned.           In

all events, the petitioner could relocate within Brazil to avoid

being harmed by the purported murderers.

              The petitioner unsuccessfully appealed the IJ's decision.

The BIA concluded that the threats alleged by the petitioner did

not constitute "mental, psychological, emotional [or] physical

abuse amounting to persecution," that there was no nexus between

the described threats and government action or inaction, and that

the petitioner's claimed social group lacked social visibility

(and, thus, was not legally cognizable).        This timely petition for

judicial review followed.

              We review the factual findings underpinning the BIA's

denial   of     an   asylum   application   through   the   prism   of   the

substantial evidence rubric.       Morgan v. Holder, 634 F.3d 53, 56-57

(1st Cir. 2011).      Under that rubric, the agency's findings must be

upheld so long as they are "supported by reasonable, substantial,

and probative evidence on the record considered as a whole."             INS

v. Elias-Zacarias, 502 U.S. 478, 481 (1992).          Absent an error of


                                     -5-
law, we will reject the agency's findings only when the record

compels a conclusion contrary to that reached by the agency.

Morgan, 634 F.3d at 57; Lopez Perez v. Holder, 587 F.3d 456, 460

(1st Cir. 2009).   Additionally, we review legal questions de novo,

albeit with some deference to the BIA's reasonable interpretations

of the statutes and regulations that fall within its purview.

Mendez-Barrera v. Holder, 602 F.3d 21, 24 (1st Cir. 2010).

            To be eligible for asylum, an alien must show that "she

is unable or unwilling to return to her homeland 'because of [past]

persecution or a well-founded fear of [future] persecution on

account of'" one of five statutorily enumerated grounds. Id. at 25

(quoting 8 U.S.C. § 1101(a)(42)(A)) (alterations in original).

"Persecution" is a term of art in immigration law.      Lopez Perez,

587 F.3d at 461.    The elements of persecution — past or future —

are identical: the alien 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.      Morgan,

634 F.3d at 57; Lopez Perez, 587 F.3d at 461-62.

            If an alien establishes past persecution, a rebuttable

presumption of a well-founded fear of future persecution arises.

Mendez-Barrera, 602 F.3d at 25; Lopez Perez, 587 F.3d at 461.      In

the absence of proof of past persecution, an alien still can

establish    a   well-founded   fear   of   future   persecution   by


                                 -6-
demonstrating both that she genuinely fears future persecution and

that her fears are objectively reasonable. Morgan, 634 F.3d at 57-

58; Mendez-Barrera, 602 F.3d at 25.

          In the case at hand, the petitioner complains that the

BIA erred in affirming the IJ's determination that she failed to

demonstrate either past persecution or a well-founded fear of

future persecution. We explain briefly why the petitioner's plaint

fails.

          An inability to establish any one of the three elements

of persecution will result in a denial of her asylum application.

See Morgan, 634 F.3d at 59; Lopez Perez, 587 F.3d at 462.       Here,

the IJ and the BIA found the petitioner's claims of persecution

(both past and future) wanting in three fundamental respects.      If

the agency's findings on any one of those determinations are

supportable, the petitioner cannot prevail. For simplicity's sake,

then, we proceed directly to the weakest point in the petitioner's

asseveratory   array:   the   agency's   determination   that     the

petitioner's proposed social group was not cognizable.

          To show persecution "on account of . . . membership in a

particular social group," 8 U.S.C. § 1101(a)(42)(A), an alien must

establish that the putative social group is legally cognizable.

Mendez-Barrera, 602 F.3d at 25.    A cognizable social group is one

whose members share "a common, immutable characteristic that makes

the group socially visible and sufficiently particular."   Id.   For


                                  -7-
a group to be socially visible, "it must be generally recognized in

the community as a cohesive group."   Id. at 26; see Faye v. Holder,

580 F.3d 37, 41-42 (1st Cir. 2009).

          The petitioner asserts that her claimed social group –

witnesses to a serious crime whom the Brazilian government is

unwilling or unable to protect – is socially visible.       In this

regard, she relies heavily on the fact that she had been identified

by the murderers. Building on this foundation, she speculates that

the murderers' entire gang (which assumes without a shred of proof

that the murderers belonged to a gang) and complicit Brazilian

police officers knew that she had witnessed the two men flee the

murder scene.   Because her status as a witness to a serious crime

was known to those seeking to do her harm, her thesis runs, her

claimed social group was socially visible.

          This line of argument mistakes the proper inquiry.     In

determining whether a purported social group is socially visible,

the relevant question is "whether the social group is visible in

the society, not whether the alien herself is visible to the

alleged persecutors."   Mendez-Barrera, 602 F.3d at 27.    The fact

that the petitioner was known by a select few to have witnessed a

crime tells us nothing about whether the putative social group was

recognizable to any extent by the community.      Cf. Scatambuli v.

Holder, 558 F.3d 53, 60 (1st Cir. 2009) (commenting, in the course

of upholding a finding that a claimed social group lacked social


                                -8-
visibility,   that     "the   universe    of    those      who   knew   of   the

petitioners' identity as informants was quite small [and] the

petitioners were not particularly visible.").

           Here, moreover, the visibility of the putative social

group is deficient in yet another respect; the petitioner has

pointed to no common and immutable characteristic that renders

members of the group socially visible in Brazil.             This, in itself,

is a fatal flaw.     See Mendez-Barrera, 602 F.3d at 26-27.             Because

we discern no feature of the group that would enable the community

readily to differentiate witnesses to a serious crime from the

Brazilian populace as a whole, the claimed group is simply too

amorphous to satisfy the requirements for social visibility.                 See

id.

           Our holding today is consistent with the case law in this

circuit: the claimed social group of witnesses to a serious crime

whom the government is unable or unwilling to protect is not

appreciably more visible than other proposed groups previously

found not to be cognizable.       See, e.g., id. (upholding agency's

determination that the proposed group of "young women recruited by

gang members who resist such recruitment" is not socially visible);

Faye, 580 F.3d at 41-42 (upholding agency's determination that

proposed group of women who had a child out of wedlock is not

socially   visible);    Scatambuli,      558   F.3d   at    60-61   (upholding

agency's determination that proposed group of informants is not


                                   -9-
socially visible).    We therefore conclude that the BIA did not err

in finding that the petitioner's professed social group was not

legally cognizable.

           This gap in the petitioner's proof dooms her claims of

past persecution and a well-founded fear of future persecution

alike.     Each   formulation   requires   that   the   persecution   be

perpetrated "on account of" one of the statutorily enumerated

grounds.   8 U.S.C. § 1101(a)(42)(A).       The petitioner chose to

premise both her claim of past persecution and her claim of well-

founded fear of future persecution on her membership in a group

that lacks the requisite social visibility.        Consequently, both

claims topple.

           We need go no further.4      The petitioner's failure to

satisfy an essential element of the three-part showing needed to

ground a finding of persecution requires us to deny her petition

for judicial review.



The petition for judicial review is denied.




     4
       Because we find unassailable the agency's conclusion that
the petitioner's claimed social group was not legally cognizable,
we need not reach the issues of (i) whether the threats made were
sufficiently serious to rise to the level of persecution, (ii)
whether there was a sufficient nexus between the harm the
petitioner experienced and government action or inaction, or (iii)
whether the petitioner can safely relocate within Brazil.

                                 -10-
