           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            June 16, 2009

                                       No. 08-60440                    Charles R. Fulbruge III
                                                                               Clerk

MANUEL CALEL-CHITIC

                                                   Petitioner
v.

ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL

                                                   Respondent




                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                 BIA No. A98 113 452


Before REAVLEY, WIENER, SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Petitioner Manuel Calel-Chitic (“Petitioner”) arrived in the United States
in 2004 from Guatemala and sought asylum here. He contends that because he
witnessed a crime committed by government officials in his hometown, he is
subject to being persecuted on return there either (1) as a member of the social
group comprising government informants or (2) for his implicit pro-State
political view. The Immigration Judge (“IJ”) held that Petitioner is ineligible
for a grant of asylum, even though his life might be in danger if he returns to his

       *
         Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
                                       No. 08-60440

hometown, because any persecution that would occur there would be based on
neither his membership in a social group nor his political views. The Bureau of
Immigration Appeals (“BIA”) agreed, as do we, so we deny Petitioner’s petition
for review.1
                             I. FACTS AND PROCEEDINGS
        The facts are not in dispute. While walking home from school in 1998 in
their home town of Chiche, Guatemala, Petitioner and his brothers saw local
officials, former military officers, and other men unloading military-style
weapons from a truck in what appeared to be an illicit arms trafficking
transaction. The men beat Petitioner and his brothers and warned them never
to tell anyone what they had seen. Petitioner and his brothers have endured
threats ever since, and one brother was killed in an apparently related incident.
Some six years later, Petitioner fled to this country to escape the threats on his
life.
        Following his illegal entry into the United States, Petitioner sought
asylum, which the IJ denied. On remand by the BIA on an unrelated legal
question, the IJ again denied Petitioner’s asylum petition. The BIA affirmed,
issuing a final removal order.
                               II. STANDARD OF REVIEW
        We have jurisdiction over final removal orders of the BIA.2 We review the
BIA’s factual findings for substantial error and its legal conclusions de novo. 3

        1
         Petitioner also seeks mandatory withholding of removal, which entails a nearly
identical showing to that required for asylum status. See 8 U.S.C. § 1231(b)(3). As we explain,
Petitioner fails to demonstrate that he is being persecuted based on his “race, religion,
nationality, membership in a particular social group, or political opinion,” so he is ineligible
for withholding and that relief is denied as well. See id.
        2
            8 U.S.C. § 1252 (2005).
        3
       Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007). The BIA’s opinion “must reflect
meaningful consideration of the relevant substantial evidence supporting the alien’s claims.”
Abdel-Masieh v. INS, 73 F.3d 579, 585 (5th Cir. 1996). “Substantial evidence” requires that

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In this case, we will consider the underlying IJ opinion, because the BIA largely
adopted the findings of the IJ without elaboration.4 Reversal is permissible only
if the evidence does not just support a contrary conclusion, but compels it.5 The
applicant for asylum has the burden of proving that the evidence compels
reversal.6
                                         III. ANALYSIS
          An alien seeking asylum pursuant to 8 U.S.C. § 1158(b)(1) must first
demonstrate that he is a “refugee,” that is, he is unable or unwilling to return
to his country of citizenship or residence because of a “well-founded fear of
persecution on account of [(1)] race, [(2)] religion, [(3)] nationality, [(4)]
membership in a particular social group, or [(5)] political opinion.” 7 Petitioner
contends that the latter two enumerated bases — membership in a particular
social group and political opinion — apply to his case.8
A. Jurisdiction
          The government contends that we are without jurisdiction to hear this
case because Petitioner failed to exhaust his administrative remedies, as




the decision be based on the evidence presented and be substantially reasonable.     Carbajal-
Gonzalez v. INS, 78 F.3d 194, 197 (5th Cir. 1996).
          4
              Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006).
          5
        Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994) (citing INS v. Elias-Zacarias, 502 U.S.
478, 481 n.1 (1992)); see also 8 U.S.C. § 1252(b)(4).
          6
        Chen, 470 F.3d at 1134. The burden of proof is by a “preponderance of the evidence.”
Matter of Acosta, 19 I&N Dec. 211, 215 (BIA 1985), overruled on other grounds by Matter of
Mogharrabi, 19 I&N Dec. 439 (BIA 1987).
          7
              8 U.S.C. § 1101(a)(42); see also, e.g., INS v. Cardoza-Fonseca, 480 U.S. 421, 423
(1987).
          8
         The IJ considered and rejected Petitioner’s contention that he was being and again
will be persecuted because he is of Mayan descent. Petitioner has since abandoned that
contention.

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required by statute.9 According to the government, Petitioner never specifically
raised the question whether his position as a witness to a crime involving
government officials placed him in a specific social group for the purposes of an
asylum analysis. We cannot accept the government’s view. Petitioner has
maintained since the initiation of this action that he is in danger because of the
illegal acts that he witnessed being committed by former and current
government officials. The IJ ruled that Petitioner failed to prove his eligibility
for asylum on any of the five enumerated bases, specifically stating that
Petitioner’s contention that he feared retaliation by those he saw committing the
criminal acts was not a permitted ground for asylum.                      We conclude that
Petitioner sufficiently raised the issues now before us, so that we have
jurisdiction to consider his petition for review.
B. Membership in a Social Group
       As noted, Petitioner asserts two grounds in support of his asylum claims:
(1) He is a member of a particular social group consisting of witnesses to crimes
committed by government officials (“government witnesses”);10 (2) his tormentors
are persecuting him because of his political opinion, viz., they perceive him as
anti-crime and therefore pro-State. As Petitioner offers no evidence whatsoever
in support of the latter argument, and finding it singularly unpersuasive, we
reject it out of hand.
       Petitioner’s social-group argument does him little more good. Although it
is not impossible that some “particular social group” could be made up of


       9
         8 U.S.C. § 1252(d)(1); see also Omari v. Holder, 562 F.3d 314, 318-19 (5th Cir. 2009)
(citing Wang v. Ashcroft, 260 F.3d 448, 452 (5th Cir. 2001)), pet. for reh’g denied, No. 07-60814
(June 8, 2009).
       10
         The parties characterize Petitioner as arguing that he is a member of a class of
government informants. We find this somewhat misleading, as we find no evidence in the
record that he ever acted as a government informant or, indeed, ever told anyone in
Guatemala that he and his brothers witnessed the arms deal. For this reason, we refer to
Petitioner’s putative “social group” as being that of “government witnesses.”

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government witnesses, he has not demonstrated that such is the case here. A
social group must be readily identifiable 11 and have at least one immutable
characteristic so fundamental to an individual’s identity that he cannot change
it or should not be required to change it.12 Critically, the individual seeking
asylum must demonstrate that his persecution is because of his membership in
that social group. “The social group category was not meant to be a ‘catch all’
applicable to all persons fearing persecution.”13
       Petitioner has shown only that a gang of local criminals has threatened
him because they do not want to be caught and convicted. Petitioner has not
shown that he is identifiable as a member of a determinable group of
government witnesses who suffer persecution in Guatemala, nor that his
tormentors have any interest in persecuting government witnesses generally as
a group. Petitioner’s putative persecutors appear interested only in insulating
themselves from prosecution. The threats are specific to Petitioner and to one
occurrence that he and his brothers witnessed on one afternoon in 1998, and not
because of his membership in any recognizable social group.14                       Criminal


       11
          In re C-A, 23 I&N Dec. 951, 960 (BIA 2006) (considering whether noncriminal
informants comprise a “particular social group” and holding that they do not); see also
Scatambuli v. Holder, 558 F.3d 53, 60 (1st Cir. 2009) (affirming BIA decision finding that
“[w]itnesses in criminal cases, or other investigations, do not share a characteristic which
identifies them to others.”); In re A-M-E & J-G-U, 24 I&N Dec. 69, 74 (BIA 2007) (shared
characteristic of social group should be one that is generally recognizable to others in the
community).
       12
            Matter of Acosta, 19 I&N Dec. 211, 233-34 (BIA 1985).
       13
            In re C-A, 23 I&N Dec. at 960.
       14
           Petitioner has contended that he need not demonstrate motive with precision, relying
on cases in which the asylum-seeker may not have evidence of his persecutors’ precise motives.
See, e.g., INS v. Elias-Zacarias, 502 U.S. 478, 483-84 (1992). But the weakness in Petitioner’s
argument is not a lack of evidence of motive; rather, it is that the evidence shows that he has
been threatened out of criminal retaliation, not because of his membership in a particular
social group. In re S-P, 21 I&N Dec. 486, 495 (BIA 1996) (“[T]he task of the alien is to
demonstrate the reasonableness of a motivation which is related to one of the enumerated

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retaliation such as this is not a basis for asylum,15 and holding otherwise would
transform asylum into a garden variety witness protection program.
       Petitioner has not established that the persecution he fears targets
members of one or more of the five exclusive categories enumerated in 8 U.S.C.
§ 1101(a)(42), so he fails to meet the definition of “refugee.” As this ends our
inquiry, we do not reach the question whether his fear of persecution is well-
founded.
                                   IV. CONCLUSION
       Petitioner has failed to demonstrate that he is eligible for asylum, so his
petition for review is DENIED.




grounds.”) (internal quotation marks and citation omitted).
       15
          See, e.g., Scatambuli, 558 F.3d at 61; In re C-A, 23 I&N Dec. at 952 (“the group of
noncriminal informants is not a ‘particular social group’”); see also In re A-M-E & J-G-U, 24
I&N Dec. at 76 (threats of criminal extortion are not a basis for asylum); Romilus v. Ashcroft,
385 F.3d 1, 6 (1st Cir. 2004) (“The [Immigration and Nationality Act] is not intended to protect
aliens from violence based on personal animosity.”).

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