          United States Court of Appeals
                      For the First Circuit


No. 18-1314

                  JAIME EDUARDO URGILEZ MENDEZ,

                           Petitioner,

                                v.

                      MATTHEW G. WHITAKER,
                    ACTING ATTORNEY GENERAL,*

                           Respondent.


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


                              Before

                Barron and Selya, Circuit Judges,
                      and Katzmann, Judge.**


     Glenn L. Formica, Elyssa N. Williams, and Formica Williams,
P.C. on brief for petitioner.
     Chad A. Readler, Acting Assistant Attorney General, Civil
Division, Keith I. McManus, Assistant Director, Office of
Immigration Litigation, and Rosanne M. Perry, Trial Attorney,
Office of Immigration Litigation, on brief for respondent.




     * Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney
General Matthew G. Whitaker has been substituted for former
Attorney General Jefferson B. Sessions, III as the respondent.
     **Of the United States Court of International Trade, sitting
by designation.
December 11, 2018
             SELYA, Circuit Judge.       The petitioner, Jaime Eduardo

Urgilez Mendez, is an Ecuadorian national.                He seeks judicial

review of an order of the Board of Immigration Appeals (BIA)

dismissing     his     application    for     asylum.1       After     careful

consideration, we deny his petition.

             The relevant facts are straightforward.              On April 19,

2013, the petitioner entered the United States illegally at Laredo,

Texas.      In short order, the Department of Homeland Security

initiated    removal    proceedings    against    him.      The     petitioner

conceded removability and applied for asylum.               He premised his

asylum application on a claim that he had been persecuted in the

past (and, thus, feared future persecution) by gang members on

account of his political opinion and/or membership in a particular

social group.

             At a hearing held before an immigration judge (IJ) on

April 12, 2017, the petitioner testified that while in Ecuador, he

had surreptitiously gone to the police to report gang activity in

his town.    Specifically, he told the police that gang members were

extorting money from his family and other community members.                The

record   contains    nothing   that   would    indicate    that    either   the


     1 The petitioner also unsuccessfully applied for withholding
of removal and protection under the United Nations Convention
Against Torture. In his petition for judicial review, however, he
challenges only the dismissal of his asylum application.
Consequently, we make no further reference to the other forms of
relief that the petitioner originally sought.


                                     - 3 -
petitioner's views about gang activity or his role as an informant

were known outside of official circles.             By the same token, the

record contains no hint that the petitioner voiced his accusations

publicly.

             Sometime in 2004 — the record is tenebrous as to how

much time elapsed after the petitioner's private conversations

with the police — the petitioner was stabbed by a gang member known

as "Shaggy."    His injuries required significant medical treatment,

and the attack left the petitioner emotionally traumatized.               When

asked    what   prompted    the   assault,    the    petitioner    expressed

uncertainty.     He eventually speculated that "maybe it could have

been because I had gone to the police."             And even though he had

approached the police in secret, he ruminated that "maybe [Shaggy]

knew."    This suspicion apparently derived from the petitioner's

unsubstantiated    belief    that   "the    police    and   the   gangs   work

together."

             The petitioner related that, subsequent to the stabbing

incident, he was interviewed by a local prosecutor.                   To his

knowledge, though, no action was taken against Shaggy. Once again,

the record contains nothing to indicate that either the fact of

the petitioner's meeting with the prosecutor or the contents of

their discussion was known outside the prosecutor's office.

             This was not the end of the matter.             The petitioner

asserted that Shaggy continued to threaten him by leaving notes


                                    - 4 -
and   spray-painting    messages    on   his   house.     But    no    further

confrontation occurred until 2008, when the petitioner was again

attacked by unidentified persons, whom he suspected to be gang

members.   This attack left him with a scar on his face.              Asked to

explain why he had been attacked, the petitioner was unable to

offer any explanation.

           At the conclusion of the hearing, the IJ expressed grave

reservations about the petitioner's credibility but nonetheless

assumed that his testimony was credible.          Even on this arguendo

assumption, the IJ rejected the petitioner's request for asylum.

Critically, the IJ determined that the petitioner had failed to

establish a nexus between the harm that he described and any

statutorily protected ground for asylum status.           In the IJ's view,

the   violence   that   the   petitioner    experienced    was   likely    the

consequence of personal retaliation or retribution.

           The petitioner appealed, but the BIA upheld the IJ's

findings. In its decision, the BIA pointed out that the petitioner

had shifted gears and had proffered a new definition of the social

group to which he belonged:        state witnesses against criminals in

Ecuador.   The BIA noted that it "generally does not consider new

definitions proposed for the first time on appeal." Here, however,

the BIA opted to consider the petitioner's new definition, but

still found his asylum claim wanting on lack-of-nexus grounds.

This timely petition for judicial review followed.


                                    - 5 -
             Although judicial review in immigration cases generally

focuses on the final decision of the BIA, a different rule applies

when the BIA embraces the IJ's decision but adds its own gloss.

In such circumstances, judicial review focuses on the two decisions

as a unit.     See Perez-Rabanales v. Sessions, 881 F.3d 61, 65 (1st

Cir. 2018).      This is such a case.

             Judicial review of the denial of asylum is deferential.

See 8 U.S.C. § 1252(b)(4)(B).            In conducting this tamisage, we

examine factbound challenges only to ensure that the agency's

factual findings are supported by substantial evidence in the

administrative record as a whole.          See INS v. Elias-Zacarias, 502

U.S. 478, 481 (1992); Makhoul v. Ashcroft, 387 F.3d 75, 79 (1st

Cir. 2004).      This agency-friendly standard requires us to accept

the agency's findings "unless the record is such as would compel

a   reasonable      factfinder    to   reach    a    contrary   determination."

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

another way, the denial of asylum must be affirmed unless the

administrative record "unequivocally indicates error."                  Makhoul,

387 F.3d at 79 (citing Elias-Zacarias, 502 U.S. at 481 & n.1).

             Against this backdrop, we turn to the particulars of the

case at hand.       To begin, an asylum-seeker must establish that he

is a refugee.       See 8 U.S.C. § 1158(b)(1).             A refugee is someone

who   cannot   or    will   not   return   to       his   homeland   "because    of

persecution or a well-founded fear of persecution on account of


                                       - 6 -
race, religion, nationality, membership in a particular social

group, or political opinion."          Id. § 1101(a)(42)(A).     A credible

showing of past persecution creates a rebuttable presumption that

the asylum-seeker has a well-founded fear of future persecution.

See Mendez-Barrera, 602 F.3d at 25.

            In this context, "[p]ersecution is a protean term, not

defined by statute."     Lopez de Hincapie v. Gonzales, 494 F.3d 213,

217 (1st Cir. 2007).      Nevertheless, our case law makes manifest

that there is a floor:     persecution requires something "more than

mere   discomfiture,      unpleasantness,         harassment,   or     unfair

treatment."   Mendez-Barrera, 602 F.3d at 25 (quoting Nikijuluw v.

Gonzales,   427   F.3d   115,   120    (1st   Cir.   2005)).    For   present

purposes, we assume that the type and quantum of harm described by

the petitioner — a stabbing that resulted in substantial injury

and medical treatment — was sufficient to cross this threshold.

            A finding that the petitioner suffered a level of harm

sufficient to constitute persecution does not end the asylum

inquiry.    To gain asylum, the petitioner must also establish that

the harm was inflicted "on account of" one or more of the five

statutorily enumerated grounds:           "race, religion, nationality,

membership in a particular social group, or political opinion."            8

U.S.C. § 1101(a)(42)(A). This "on account of" element is "commonly

referred to as the nexus requirement."           Alvizures-Gomes v. Lynch,

830 F.3d 49, 52-53 (1st Cir. 2016).           To satisfy it, the petitioner


                                      - 7 -
— who bears the burden of proof — must show by probative evidence,

see Lopez de Hincapie, 494 F.3d at 218, that the enumerated ground

on which his asylum application hinges was "at least one central

reason" for the harm that he endured, 8 U.S.C. § 1158(b)(1)(B)(i).

The Supreme Court has emphasized that proving the required nexus

is "critical" to an asylum-seeker's success.2         Elias-Zacarias, 502

U.S. at 483.

              The petitioner first tries to superimpose his asylum

claim onto this framework by alleging past persecution and a well-

founded fear of future persecution based on political opinion

(specifically, his imputed political opinion in "opposition to

lawbreakers").       In his view, reporting gang activity to local

authorities amounted to an expression of a protected political

opinion against lawbreakers.         This boils down to a suggestion that

by    being   an   informant,   he   necessarily   expressed   a   political

opinion.      Both the IJ and the BIA rejected this suggestion.        So do

we.




       2
       There is, of course, a further requirement for asylum: the
alleged persecution not only must be causally connected to a
statutorily enumerated ground but also must be "the direct result
of government action, government-supported action, or government's
unwillingness   or   inability   to   control   private   conduct."
Nikijuluw, 427 F.3d at 121. Because the petitioner has failed to
satisfy the nexus requirement, see text infra, it is unnecessary
for us to consider whether he has satisfied the "government action"
requirement.


                                     - 8 -
           The petitioner's thesis suffers from a series of related

flaws:    his reports to the authorities were made in secret, his

role as an informant was never publicly disclosed, and nothing in

the   record   indicates   that   he     divulged    information     to   the

authorities in order to express a political opinion.           To impute a

political opinion premised on an individual's holding of that

opinion, we have required, at a minimum, "evidence that the would-

be persecutors knew of the [political] beliefs and targeted the

belief holder for that reason."        Mendez-Barrera, 602 F.3d at 27

(emphasis in original).    Here, no evidence in the record supports

— let alone compels — a reasonable inference that the petitioner's

private    conversations   with    the     authorities     were     publicly

disseminated, "leaked," or otherwise made known to Shaggy.

           Another point is worth making.           "Because people report

criminal conduct to law enforcement for various reasons," we have

declined to impute a political opinion based on a statement to the

police without some evidence that the statement was made to express

a political opinion.   Amilcar-Orellana v. Mukasey, 551 F.3d 86, 91

(1st Cir. 2008).     There is no such evidence here:              the record

indicates that the petitioner went to the police to stop gang

members from extorting money from his family and his neighbors,

not for any other purpose.

           This ends this aspect of the matter.          Given the porous

foundation for the petitioner's "political opinion" claim, it is


                                  - 9 -
unsurprising that the IJ and the BIA determined that the petitioner

failed to carry his burden of proving the required nexus.             On this

record,    the   petitioner's    unsupported    speculation    that   Shaggy

targeted him because of his political opinion is entitled to little

weight.3    After all, divulging information in private is not a

typical way in which to make a public expression of a political

opinion.    See Amilcar-Orellana, 551 F.3d at 91.

            The petitioner has a fallback argument.          He alleges past

persecution based on his membership in a particular social group:

those who act as state witnesses against criminals in Ecuador.

This argument, too, lacks force.

            To establish a right to asylum on the basis of membership

in a social group, an alien must demonstrate that the group was

socially   visible;   that     its   members   share   the   same   immutable

characteristic; and that the group be sufficiently particular.

See Perez-Rabanales, 881 F.3d at 65; Alvizures-Gomes, 830 F.3d at

54; Scatambuli v. Holder, 558 F.3d 53, 59 (1st Cir. 2009).             In the

BIA's estimation, the petitioner's claim ran aground due to a lack

of visibility.     We agree.




     3 The petitioner's argument is all the more speculative
because — as the BIA indicated — the record is consistent with a
conclusion that the stabbing was a personal attack on the
petitioner.  Our cases make pellucid that immigration laws are
"not intended to protect aliens from violence based on personal
animosity." Romilus v. Ashcroft, 385 F.3d 1, 6 (1st Cir. 2004).


                                     - 10 -
            As said, the petitioner claims membership in a social

group that he describes as individuals who are state witnesses

against criminals in Ecuador.          The BIA found, inter alia, that the

claim foundered because the petitioner's membership was "based on

having secretly informed police of gang activities in his home

country."    As such, the claim fell "closely" in line with claims

previously rejected under the BIA's precedents, see, e.g., In re

C-A-, 23 I. & N. Dec. 951 (B.I.A. 2006), "the methodology of which

was affirmed in Scatambuli."

            To put the BIA's rationale into perspective, we briefly

rehearse our decision in Scatambuli.             There, we held that the

visibility of particular individuals associated with a putative

social   group   is   germane    to   the   social   group   analysis.   See

Scatambuli, 558 F.3d at 59-60.           A member satisfies this standard

only if he possesses characteristics "visible and recognizable by

others in the [native] country."               Id. at 59 (alterations in

original) (quoting In re C-A-, 23 I. & N. Dec. at 960).                  Of

particular pertinence, Scatambuli cited approvingly the BIA's

observation that, with respect to confidential informants, "the

very nature of the conduct at issue is such that it is generally

out of the public view."        Id. (quoting In re C-A-, 23 I. & N. Dec.

at 960).    Thus, "visibility is limited to those informants who are

discovered."     Id. (quoting In re C-A-, 23 I. & N. Dec. at 960).




                                      - 11 -
          The     BIA's    reliance    on      Scatambuli   strikes   us     as

appropriate. In Scatambuli, we upheld the denial of asylum because

substantial evidence supported its finding that "the universe of

those who knew of the petitioners' identity as informants was quite

small."   Id. at 60.      So it is here.       The BIA determined that the

petitioner,   a   self-described      secret    informant   who   adduced   no

evidence that his association with the putative social group was

ever disclosed, could not have been perceived within the community

as belonging to that group.        Since the record does not compel a

contrary conclusion, Scatambuli controls — and the rule of that

case requires us to uphold the BIA's determination.

          In an effort to blunt the force of this reasoning, the

petitioner    contends    that   his    case     is   distinguishable      from

Scatambuli because the aliens there were informants to United

States law enforcement whereas the petitioner was an informant to

local law enforcement in his homeland.                This is a distinction

without a difference.       Regardless of the sovereign to which an

informant's information was divulged, the question is whether the

informant lacked visibility.       See id.      Here, the BIA answered this

question in the affirmative, and the record does not "compel a

reasonable factfinder to reach a contrary determination."             Mendez-

Barrera, 602 F.3d at 24.         No more is exigible to satisfy the

substantial evidence test.




                                   - 12 -
          We need go no further. For the reasons elucidated above,

the petition for judicial review is



Denied.




                             - 13 -
