           Case: 17-13309   Date Filed: 06/27/2018   Page: 1 of 7


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                      ________________________

                            No. 17-13309
                        Non-Argument Calendar
                      ________________________

                        Agency No. A208-752-974



CRISTIAN ARTURO LOPEZ-AREVALO,

                                                                      Petitioner,

                                  versus

U.S. ATTORNEY GENERAL,

                                                                    Respondent.

                      ________________________

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

                              (June 27, 2018)

Before MARTIN, JILL PRYOR, and ANDERSON, Circuit Judges.

PER CURIAM:
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      Christian Arturo Lopez-Arevalo (“Arevalo”), a native and citizen of El

Salvador, petitions this Court for review of the Board of Immigration Appeals’

(“BIA”) determination that he did not establish eligibility for asylum, withholding

of removal, or relief under the United Nations Convention Against Torture and

Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”). On

appeal, Arevalo argues that his credible testimony that the Mara Salvatrucha (“MS-

13”) threatened to harm his family if they did not repay money that his brother had

stolen, that the family fled from their home to avoid harm, and that the gang killed

his uncle shortly after Arevalo left El Salvador provided substantial evidence for a

finding that he suffered past persecution and had a well-founded fear of future

persecution on account of his family relationship with his brother.

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

expressly adopted the Immigration Judge’s (“IJ”) decision or relied on its

reasoning. Gonzalez v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016). Here,

the BIA did not expressly adopt the IJ’s opinion or rely on its reasoning, and thus

we review only the BIA’s decision. Id. In a petition for review of a BIA decision,

we review conclusions of law de novo and factual determinations under the

substantial evidence test. Id. Issues not decided by the BIA are not properly

before this Court. Id. In addition, where the agency does not discredit an asylum

seeker’s testimony, we accept that testimony as credible. See Kazemzadeh v. U.S.


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Att’y Gen., 577 F.3d 1341, 1354 (11th Cir. 2009) (noting that the government

could not argue on appeal that an asylum seeker’s testimony was less than credible

where neither the BIA nor the IJ discredited his testimony).

      The substantial-evidence test requires us to “view the record evidence in the

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

favor of that decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1026−27 (11th Cir.

2004) (en banc). We “must affirm the BIA’s decision if it is supported by

reasonable, substantial, and probative evidence on the record considered as a

whole.” D-Muhumed v. U.S. Att’y Gen., 388 F.3d 814, 817–18 (11th Cir. 2004)

(quotation marks omitted). To reverse fact findings, we “must find that the record

not only supports reversal, but compels it.” Mendoza v. U.S. Att’y Gen., 327 F.3d

1283, 1287 (11th Cir. 2003).

      The Attorney General or Secretary of the Department of Homeland Security

(“DHS”) has discretion to grant asylum if the alien meets the Immigration and

Nationality Act’s (“INA”) definition of a “refugee.” INA § 208(b)(1), 8 U.S.C.

§ 1158(b)(1). A “refugee” is one who is unable or unwilling to return to his home

country, and is unable or unwilling to avail himself of the protection of his 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. INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). The asylum applicant


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carries the burden of proving statutory “refugee” status. INA § 208(b)(1)(B)(i), 8

U.S.C. § 1158(b)(1)(B)(i). To meet this burden, the applicant must present

evidence establishing past persecution on account of a statutorily protected ground

or a well-founded fear that the alien will be persecuted on account of a protected

ground. INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A).

      Persecution is an extreme concept, requiring 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). Accordingly, we have held that menacing phone

calls and threats to an applicant and her family did not rise to the level of past

persecution that would compel a finding in the applicant’s favor. Id. Similarly, we

concluded that record evidence did not compel a finding of past persecution where

the record showed that the applicant was detained for five days and subjected to

some physical abuse, but there was no evidence that the petitioner was hurt while

detained. Zheng v. U.S. Att’y Gen., 451 F.3d 1287, 1290–91 (11th Cir. 2006). To

establish a well-founded fear of future persecution, the applicant must demonstrate

that his fear is both subjectively genuine and objectively reasonable. Sepulveda,

401 F.3d at 1231. A showing of past persecution creates a presumption of a well-

founded fear of future persecution, which the government may rebut. Id.

      The BIA has held that a “particular social group” refers to persons who share

a common, immutable characteristic, such as sex, color, or kinship ties, or in some


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circumstances a shared past experience such as former military leadership or land

ownership. Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1193 (11th Cir.

2006); id. at 1196 (deferring to the BIA’s formulation of “particular social group”).

Furthermore, the group must have sufficient “social visibility,” and persecution

based on membership in a particular social group should not be defined so broadly

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

1196–97.

      The asylum applicant must show a nexus between the persecution he

suffered or fears and a statutorily protected ground by offering credible, direct, and

specific evidence in the record. Rodriguez Morales v. U.S. Att’y Gen., 488 F.3d

884, 890 (11th Cir. 2007). The alien must demonstrate that one of the enumerated

grounds “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). Evidence consistent with a

finding that the alien was persecuted based on a refusal to cooperate with the

persecutors or was a victim of criminal activity is insufficient to show that an

enumerated ground was one central reason for persecution. Ruiz v. U.S. Att’y Gen.,

440 F.3d 1247, 1257−58 (11th Cir. 2006); see also Matter of J–B–N & S–M–, 24 I.

& N. Dec. 208, 214 (BIA 2007) (interpreting the phrase “central reason” to require

that the protected ground not be “incidental, tangential, superficial, or subordinate

to another reason for harm”).


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      To obtain withholding of removal, an applicant must establish that his life or

freedom would be threatened in the proposed country of removal because of his

race, religion, nationality, membership in a particular social group, or political

opinion. INA § 241(b)(3)(A), 8 U.S.C. § 1231(b)(3)(A). The standard for

withholding of removal is more stringent than the “well-founded fear of future

persecution” standard required for asylum. Rodriguez Morales, 488 F.3d at 891.

The alien must show that there is a clear probability of persecution if the alien is

returned to his home country. Id. If the alien establishes past persecution, it is

presumed that his life or freedom would be threatened if removed unless the

government rebuts the presumption by a preponderance of the evidence. 8 C.F.R.

§ 208.16(b).

      To qualify for protection under the CAT, an alien must establish that he

more likely than not will be tortured at the instigation of or with the consent or

acquiescence of government authorities if removed to his home country. Malu v.

U.S. Att’y Gen., 764 F.3d 1282, 1292–93 (11th Cir. 2014). An alien who cannot

meet the less stringent “well-founded fear” standard for asylum necessarily fails to

establish eligibility for withholding of removal or protection under the CAT.

Forgue v. U.S. Att’y Gen., 401 F.3d 1282, 1288 n.4 (11th Cir. 2005); D-Muhumed,

388 F.3d at 819.




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      The record does not compel reversal of the BIA’s asylum determination.

First, Arevalo’s credible testimony that a gang threatened his household on a single

occasion was insufficient to establish past persecution. Second, substantial

evidence supported a conclusion that Arevalo was not targeted on account of his

family membership, but was instead targeted for money, because he credibly

testified that (1) the gang threatened harm only if he did not repay money that his

brother had stolen; (2) the gang specifically threatened him because he was the

primary income earner; (3) the gang killed his uncle because his uncle failed to

repay the stolen money; (4) the gang threatened his entire household, which

included not only blood relatives, but also his common-law wife; and, (5) the gang

did not contact or threaten his siblings living elsewhere in El Salvador. Third,

substantial evidence supported a conclusion that Arevalo did not have a well-

founded fear of future persecution because he credibly testified that, after he left

the country, the gang had not contacted any member of his former household or his

siblings living in El Salvador. Because substantial evidence supported the BIA’s

determination that Arevalo did not show a well-founded fear of future harm for

asylum, the BIA also did not err in concluding that Arevalo failed to satisfy the

more stringent standard for withholding or removal and CAT protection.

      PETITION DENIED.




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