                                                            [DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                      ________________________  ELEVENTH CIRCUIT
                                                              MAY 10, 2005
                             No. 04-13230                   THOMAS K. KAHN
                         Non-Argument Calendar                  CLERK
                       ________________________

                 BIA Nos. A79-044-246 & A79-044-247

CESAR ELIU ROMERO-RODRIGUEZ,
MAYCOL JESUS ROMERO-RODRIGUEZ,

                                                      Petitioners,

     versus

U.S. ATTORNEY GENERAL,

                                                      Respondent.

                      __________________________

                   Petition for Review of an Order of the
                       Board of Immigration Appeals
                       _________________________

                              (May 10, 2005)


Before BIRCH, HULL and WILSON, Circuit Judges.

PER CURIAM:
      Through counsel, Cesar Eliu Romero-Rodriguez (“Cesar”) and his brother,

Maycol Jesus Romero-Rodriguez (“Maycol”) (collectively “the petitioners”),

petition for review of the Board of Immigration Appeal’s (“BIA”) final order,

affirming, without opinion, the Immigration Judge’s (“IJ”) decision denying them

asylum and withholding of removal under the Immigration and Nationality Act

(“INA”) and the United Nations Convention Against Torture and Other Cruel,

Inhuman, or Degrading Treatment or Punishment (“CAT”). Because the

petitioners removal proceedings were commenced after 1April 1997, the

permanent rules of the Illegal Immigration Reform and Immigrant Responsibility

Act of 1996, Pub. L. No. 104-208, 110 Stat. 3009 (1996), govern their petition for

review. A review of the record does not compel the conclusion that the petitioners

suffered past persecution or had a well-founded fear of future persecution and

indicates that substantial evidence supports the IJ’s finding that the petitioners

failed to demonstrate their eligibility for asylum. Moreover, because the burden of

proof for withholding of removal under the INA and the CAT is higher than that

for asylum, the IJ also properly denied the petitioners withholding of removal.

Accordingly, the petition for review is DENIED.




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                                I. BACKGROUND

      On or about 21 September 2001, the petitioners, natives and citizens of

Honduras, entered the United States without being admitted or paroled. See R1 at

357, 445. That same day, the Immigration and Naturalization Service (“INS”)

served the petitioners with Notices to Appear in Removal Proceedings. At an

initial hearing before an IJ, the petitioners, through counsel, conceded their

removability, but indicated their intent to submit applications for asylum and

withholding of removal under the INA and the CAT.

      The IJ issued a decision with respect to each petitioner and made similar

findings in both cases. The IJ found that the testimony of both petitioners was

“generally” or “fairly consistent” with their asylum applications, with the

exception that their applications stated that they first were recruited in 1994, while

they testified that they first were approached by the gang in 1999. R1 at 24, 48.

The IJ indicated, however, that he was concerned with the following: (1) Cesar

stated that he came to the United States not only to avoid the pressure of joining a

gang in Honduras, but also to support his wife; and (2) Maycol left Honduras only

two days after the birth of his daughter, which suggests that he may have come to

the United States for the purpose of acquiring employment to support his daughter.

Next, the IJ stated that, given the Country Report and other documentation, he was

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aware that Honduras had a problem with gangs and the lawlessness generated by

their activities. The IJ found, however, that Cesar and Maycol failed to

demonstrate that they had been persecuted or had a well-founded fear of future

persecution on account of any of the five statutory grounds. Noting that, under

Matter of Vigil, 19 I&N Dec. 572 (BIA 1988), the forced recruitment of young

men by guerrilla organizations does not constitute persecution within the meaning

of the INA, the IJ found that, similarly, the attempted recruitment of the petitioners

by a gang involved exclusively in criminal activities did not constitute

persecution.

      Additionally, the IJ noted that, with respect to Cesar, although he asserted

that he had been recruited on several occasions, he had never been harmed. In the

decision regarding Maycol, the IJ stated that, because the Honduran government

was attempting to control the lawlessness that exists in that country, he could not

find that a reasonable person in the Maycol’s situation would fear returning to

Honduras on account of any of the five statutory grounds. R1 at 25, 49.

Accordingly, the IJ found that the petitioners had failed to meet their burden for

asylum. R1 at 26, 49.

      The IJ then found that, since the petitioners failed to meet their burden for

asylum, they could not meet the higher burden of proof required for withholding

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of removal under the INA. Next, the IJ found that the petitioners failed to meet

their burden for CAT relief since they had never been tortured, and there was no

reason to believe that, upon their return to Honduras, they “would be tortured by

the act or acquiescence or consent of an official or person acting in an official

capacity.” R1 at 26; 50.

      The petitioners appealed the IJ’s decision, arguing that they had established

that they were persecuted and had a well-founded fear of persecution on account

of their membership in a particular social group. The BIA sent the petitioners a

briefing scheduling, which stated that the petitioners had until 12 April 2004, to

file a brief. After the deadline for filing briefs had passed, the petitioners

submitted their brief, along with a motion to accept a late-filed brief, but the BIA

denied the petitioners’ motion. Thereafter, the BIA affirmed, without opinion, the

IJ’s decision.

                                  II. DISCUSSION

      On appeal, the petitioners argue that the IJ erred by denying their

application for asylum and withholding of removal because they established that

they suffered persecution, in the form of threats, on account of their membership

in a social group. They identify their social group as “Honduran citizens

persecuted for their refusal to join a criminal organization . . . due to their religious

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and conscientious upbringing.” Petitioners’ brief at 14. The petitioners further

assert that (1) due to “their unwillingness to betray their trained consciences,” they

would be persecuted if they returned to Honduras, and (2) they “should not be

placed in a position in which they will be forced to commit acts that go against

their religious upbringing.” Id. at 12, 14.

      We review the IJ’s decision in this case, not the BIA’s, because the BIA

summarily affirmed the IJ’s decision, thereby making that the final agency

determination. See Sepulveda v. U.S. Attorney General,        F.3d   ,   (11th Cir.

Mar. 2, 2005). To the extent that the IJ’s decision was based on a legal

determination, we review the IJ’s decision de novo. Mohammed v. Ashcroft, 261

F.3d 1244, 1247-48 (11th Cir. 2001). We review the IJ’s factual determinations

under the substantial evidence standard and “must affirm the [IJ’s] decision if it is

supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” Sepulveda,      F.3d at    (internal quotations and citation

omitted). “Under this highly deferential standard of review, the IJ’s decision can

be reversed only if the evidence compels a reasonable fact finder to find

otherwise.” Id. at   . (internal quotations and citation omitted).

      An alien who arrives in, or is present in, the United States may apply for

asylum. 8 U.S.C. § 1158(a)(1). The Attorney General has the discretion to grant

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asylum if the alien meets the INA’s definition of a “refugee.” 8 U.S.C.

§ 1158(b)(1). A “refugee” is:

      [A]ny person who is outside any country of such person’s nationality
      . . . and 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 proving

statutory “refugee” status. Najjar v. Ashcroft, 257 F.3d 1262, 1284 (11th Cir.

2001). If the applicant meets this burden, then the AG may exercise his discretion

to grant the applicant asylum. Id. The BIA defines “membership in a particular

social group” as persons who hold “an immutable characteristic” or common trait

“such as sex, color, or kinship ties, or in some circumstances . . . shared past

experience[s] such as former military leadership or land ownership.” 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).

      To establish asylum eligibility, the alien must, with specific and credible

evidence, establish: (1) past persecution on account of a statutorily listed factor;

or (2) a “well-founded fear” that the statutorily listed factor will cause future

persecution. 8 C.F.R. § 208.13(a), (b); Najjar, 257 F.3d at 1287. A “well-founded



                                           7
fear” of persecution may be established by showing (1) past persecution that

creates a presumption of a “well-founded fear” of future persecution, (2) a

reasonable possibility of personal persecution that cannot be avoided by relocating

within the subject country, or (3) a pattern or practice in the subject country of

persecuting members of a statutorily defined group of which the petitioner is a

part. 8 C.F.R. § 208.13(b)(1), (2). “[T]he statute protects against persecution not

only by government forces but also by nongovernmental groups that the

government cannot control.” Sotelo-Aquije v. Slattery, 17 F.3d 33, 37 (2nd Cir.

1994).

      Neither the INA nor the regulations define “persecution.” In Gonzalez v.

Reno, 212 F.3d 1338, 1355 (11th Cir. 2000), however, we discussed other circuits’

holdings that “persecution” is an “extreme concept,” requiring more than “a few

isolated incidents of verbal harassment or intimidation,” or “[m]ere harassment.”

“[T]o be an act of persecution, the behavior . . . must threaten death,

imprisonment, or the infliction of substantial harm or suffering.” Sharif v. INS, 87

F.3d 932, 935 (7th Cir. 1996). “Threats alone generally do not constitute

persecution; only rarely, when they are so immediate and menacing as to cause

significant suffering or harm in themselves, do threats per se qualify as

persecution.” Vatulev v. Ashcroft, 354 F.3d 1207, 1210 (10th Cir. 2003).

                                          8
      If “an applicant is unable to meet the ‘well-founded fear’ standard for

asylum, he is generally precluded from qualifying for either asylum or withholding

of deportation.” Najjar, 257 F.3d at 1292-93 (internal quotations and citations

omitted). The burden of proof for an applicant for withholding of removal under

the CAT, as with the applicant under the INA, is higher than the burden imposed

on an asylum applicant. Id. at 1303.

      Upon careful review of the record on appeal and upon consideration of the

parties’ briefs, we discern no reversible error.

                                III. CONCLUSION

      Because a review of the record does not compel the conclusion that the

petitioners suffered past persecution or had a well-founded fear of future

persecution, substantial evidence supports the IJ’s finding that the petitioners

failed to demonstrate their eligibility for asylum. Moreover, because the burden of

proof for withholding of removal under the INA and the CAT is higher than that

for asylum, the IJ also properly denied the petitioners withholding of removal.

Accordingly, we deny the petition for review.

      PETITION DENIED.




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