                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                         File Name: 07a0376n.06
                           Filed: June 5, 2007

                                    No. 06-3881


                       UNITED STATES COURT OF APPEALS
                            FOR THE SIXTH CIRCUIT

Gil Batres Portillo,

      Petitioner,                              ON PETITION FOR REVIEW FROM
                                               THE BOARD OF IMMIGRATION
v.                                             APPEALS

Alberto R. Gonzales,

      Respondent.


Before: MARTIN and SUTTON, Circuit Judges; GRAHAM, District Judge*

                                       OPINION

      GRAHAM, District Judge.            This is an appeal from an order of

the Board of Immigration Appeals (“BIA” or the “Board”) adopting

and affirming the decision of the Immigration Judge (“IJ”) which

denied Petitioner’s application for withholding of removal filed

pursuant to §241(b)(3) of the Immigration and Nationality Act

(“INA”), 8 U.S.C. §1231(b)(3).1 Petitioner is a 33-year-old native

and citizen of El Salvador who entered the United States illegally

through Nogales, Arizona on July 20, 1996.                    Petitioner contends

that he will be subject to persecution on account of political

opinion if he is forced to return to El Salvador.                   For the reasons

set forth below, we DENY the petition for review.

      *
       The Honorable James L. Graham, United States District Judge for the Southern
District of Ohio, sitting by designation.
      1
       The IJ also denied Petitioner’s application for asylum as it was untimely.
Petitioner does not contest this ruling on appeal. In addition, Petitioner withdrew his
application for relief under the Convention Against Torture in the proceedings before the
IJ.
                                I.    STANDARD OF REVIEW

       This court’s jurisdiction to review a removal order by the

Board    is   pursuant      to       Section   242      of   the    INA,     which     confers

jurisdiction on the Courts of Appeals to review final orders of

removal.      See 8 U.S.C. §1252; Singh v. Aschcroft, 398 F.3d 396, 400

(6th Cir. 2005). We will reverse the Board’s determination against

withholding of removal only if it is “‘manifestly contrary to

law.’”    Almuhtaseb v. Gonzales, 453 F.3d 743, 749 (6th Cir. 2006)

(quoting      8   U.S.C.    §1252(b)(4)(C)).                 To    reverse       the   Board’s

determination, this court must find that the evidence “‘not only

supports a contrary conclusion, but indeed compels it.’”                               Ouda v.

INS, 324 F.3d 445, 451 (6th Cir. 2003) (quoting Klawitter v. INS,

970 F.2d 149, 151-52 (6th Cir. 1992)). Stated differently, we will

only    reverse     where       the    evidence         is   “so    compelling         that   no

reasonable factfinder could fail to find the requisite persecution

or fear of persecution.”               Ouda, 324 F.3d at 451.              We defer to the

administrative       findings          of   fact     except        when    any     reasonable

adjudicator       would    be    compelled         to    conclude     to     the    contrary.

Almuhtaseb, 453 F.3d at 749.                Where, as here, the Board adopts the

IJ’s reasoning, we review the IJ’s decision directly to determine

whether the Board’s decision should be upheld.                        Denko v. INS, 351

F.3d 717, 723 (6th Cir. 2003).

                  II.     FACTUAL AND PROCEDURAL BACKGROUND

A.   Commencement of Removal

       Removal proceedings began against Petitioner on December 30,

2003, when the former Immigration and Naturalization Service filed

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a Notice to Appear with the Immigration Court and charged that

Petitioner was subject to removal pursuant to INA §212(a)(6)(A)(I),

8 U.S.C. §1182(a).         On September 21, 2004, Petitioner filed an

Application      for     Asylum     and       for      Withholding     of     Removal

(“Application”). Petitioner represented in his Application that he

was seeking withholding of removal solely on the basis of his

membership in a particular social group.                  (Administrative Record

(“A.R.”) 131.) He did not indicate that he was seeking withholding

of removal on the basis of political opinion.                        (Id.)        As the

justification for his application for such relief, Petitioner

stated that he had been kidnapped by and forced to join the FMLN

Communist guerrillas when he was 16 years old.                 He asserted that if

he is returned to his home country, he fears that he will be

mistreated by Mara Salvatrucha (“M/S”) gang members because he

refused to join them.        As additional support for his Application,

Petitioner attached a Declaration in which he further articulated

his fear of the M/S gang members and his “terrible memories from

the civil war.”        (A.R. 136-37.)

B.     Merits Hearing Before the IJ

       On March 25, 2005, the IJ conducted the final hearing on the

merits.    At this hearing, Petitioner testified that during the

Salvadoran civil war, he was kidnapped from his home in the town of

Masahuat   and   forced     to    serve   in    a   Communist       guerrilla      army.

Petitioner alleged that he was taught how to use weapons and how to

fight in battles.       He said that he was regularly kicked and beaten

with   rifle   butts.      Petitioner         stated    that   he    and    the    other

                                          3
conscripts were told that they should fight because it was a “good

thing to do,” and that they should be able “to die while [they]

were fighting.”        (A.R. 72.)      According to Petitioner, if he did not

listen to the guerrillas, they would beat him.                        Petitioner further

believed    that       the    guerrillas          would       kill    him    if     he     fled.

Nevertheless, after approximately three months with the guerrilla

army, Petitioner fled and lived with a family in a town within El

Salvador called Nahualpa for one year.                           He then moved to a

different town in El Salvador, Pie de la Cuesta, where he safely

remained in the country from 1988 until 1996, when he entered the

United States illegally.               According to Petitioner’s testimony

before the IJ, he fled El Salvador because he believed that after

the end of the civil war, the guerrillas had become gang members

and criminals who would continue to threaten his life.

      After consideration of Petitioner’s testimony, the IJ found

that although Petitioner was credible, he had not demonstrated

eligibility      for    withholding.              Petitioner         was    ineligible       for

withholding      because      he     failed       to    demonstrate         that    his     past

detention by the guerrilla army was on account of one of the five

protected     grounds        which    would       entitle       him    to    such        relief.

Specifically, the IJ concluded that Petitioner’s past detention by

the   guerrillas       was    not    on   account         of    political         opinion    or

Petitioner’s membership in a particular social group.

      The   IJ     further         determined          that    Petitioner          failed     to

demonstrate any future probability of persecution that exists for

him countrywide in El Salvador.                   He opined: “The Court is taking


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nothing   away   from   [Petitioner’s]     experience,    yet,    the    clear

evidence . . . shows that the civil war is over, and that the

guerrillas are not targeting either former guerrillas who escaped

or   former   combatants   against   the    guerrillas.”         (A.R.   32.)

Additionally, to the extent Petitioner feared gang members in El

Salvador, the Immigration Judge noted that fear of rampant crime in

an alien’s home country is not one of the five statutory grounds

which would entitle Petitioner to withholding of removal. Finally,

the judge concluded that Petitioner was eligible for voluntary

departure.

C.   Petitioner’s Appeals to the BIA and This Court

     Petitioner filed a notice of appeal to the Board.            On May 31,

2006, in a one-page order, the Board adopted and affirmed the

decision of the IJ and dismissed the appeal.             Petitioner timely

filed a petition for review by this court.          Petitioner contends

that his “forced conscription into the Salvadoran guerrilla army,

with beatings, exposure to combat, and threats of assassination of

those who flee the guerrillas,” constitutes persecution on account

of political opinion and that, consequently, he is eligible for

withholding of removal, despite the Supreme Court’s holding in INS

v. Elias-Zacarias, 502 U.S. 478 (1992).

     Petitioner’s primary argument in this appeal is that he was

persecuted on account of imputed political opinion, that is, that

he was persecuted by the guerrillas either because they perceived

him to be sympathetic to their cause or because he could be forced

to adopt their position.       In response, the Government asserts,

                                     5
first, that this court should not consider Petitioner’s imputed

political   opinion   argument   because   he   failed   to   exhaust   his

administrative remedies with respect to this claim.           Second, the

Government contends that because the imputed political opinion

argument is the primary claim raised in Petitioner’s brief before

this court, Petitioner has abandoned or waived any challenge to the

IJ’s conclusion that he did not face a clear probability of future

persecution.   Finally, the Government argues, in the alternative,

that even if this court reviews this case on its merits, Petitioner

has failed to establish that the record compels reversal of the

final removal order.

                            III.   ANALYSIS

A.   Withholding of Removal Statutory Framework and Burden of Proof

      Petitioner seeks this court’s review of the Board’s denial of

his request for withholding of removal under INA §241(b)(3), 8

U.S.C. §1231(b)(3).     Withholding of removal is required if the

alien can demonstrate that “‘his or her life or freedom would be

threatened in the proposed country of removal on account of race,

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

political opinion.’” Liti v. Gonzales, 411 F.3d 631, 640 (6th Cir.

2005) (quoting 8 C.F.R. §1208.16(b)).      To qualify for withholding

of removal, Petitioner must demonstrate that there is a “‘clear

probability that he will be subject to persecution if forced to

return to the country of removal.’”             Singh, 398 F.3d at 401

(quoting Pilica v. Ashcroft, 388 F.3d 941, 951 (6th Cir. 2004)).

To establish a clear probability, Petitioner must demonstrate that

                                   6
it is more likely than not that he will be persecuted upon return.

Liti, 411 F.3d at 641.    A petitioner who demonstrates that he has

suffered past persecution on account of a protected ground is

entitled   to   a   rebuttable   presumption   that   he   faces   future

persecution.    Almuhtaseb, 453 F.3d at 750.

B.   Petitioner’s claim of persecution on account of political
     opinion was sufficiently exhausted.

     Before a federal court may assert jurisdiction over an appeal

from a removal order, the alien must have exhausted all his

administrative remedies.     8 U.S.C. 1252(d)(1).     This circuit has

interpreted the exhaustion requirement to mean that the petitioner

must “first argue the claim before the IJ or the BIA before an

appeal may be taken.”    Csekinek v. INS, 391 F.3d 819, 822 (6th Cir.

2004); Coulibaly v. Gonzales, No. 05-4333, 2007 U.S. App. LEXIS

6628, at *3 (6th Cir. Mar. 16, 2007)(declining jurisdiction where

there was “no evidence in the record that petitioner ever presented

these claims to either the Immigration Judge or the Board of

Immigration Appeals”).    The purpose of the exhaustion requirement

of §1252(d)(1) is: 1) “to ensure that the INS, as the agency

responsible for construing and applying the immigration laws and

implementing regulations, has had a full opportunity to consider a

petitioner’s claims; 2) to avoid premature interference with the

agency’s processes; and 3) to allow the BIA to compile a record

which is adequate for judicial review.”        Ramani v. Ashcroft, 378

F.3d 554, 559 (6th Cir. 2004) (internal quotations omitted).          We

conclude that these purposes are satisfied here and that Petitioner


                                    7
sufficiently exhausted his administrative remedies with regard to

this claim because: 1) the IJ ruled on the issue of persecution on

account of political opinion; 2) Petitioner’s claims of persecution

on account of membership in a particular social group and political

opinion are premised upon the same facts and evidence that were

presented to both the IJ and the Board; and 3) the precise issue of

imputed political opinion was raised in Petitioner’s brief before

the Board.

      Although Petitioner did not raise the argument of persecution

on   account    of    political    opinion          before   the   IJ,   based   upon

Petitioner’s testimony, we think it is fair to say that the IJ

nevertheless recognized or anticipated the potential for such an

argument and decided to rule upon it.                   Relying upon the Supreme

Court’s holding in Elias-Zacarias, the IJ correctly noted that it

is well settled that a person recruited into the ranks of rebels

does not in and of itself constitute persecution on account of

political opinion. See Elias-Zacarias, 502 U.S. at 482-83. The IJ

thus determined that because Petitioner had not articulated any

political opinion that would establish that his recruitment was for

anything other than to swell the ranks of the guerrilla army, he

had not met his burden of proving persecution on account of

political opinion.

      In his brief to the Board, Petitioner challenged the IJ’s

conclusion     that   he   had    failed       to    demonstrate    persecution   on

account of either his membership in a particular social group or

his imputed political opinion.         Petitioner stated:


                                           8
     [Petitioner] believes that he did suffer past persecution
     – surely being a child victim of kidnapping, being forced
     to live in the hills with guerrillas, exposed to combat
     and other dangers qualifies as persecution – on account
     of either his membership in a particular social group or
     his imputed political opinion.

(A.R. 6) (emphasis added.)     Petitioner set forth the same facts

about his experience with the guerrilla army which were presented

to the IJ, but argued specifically in support of a finding of

persecution on both grounds.    Petitioner stated:

     They grabbed him, as opposed to other citizens of El
     Salvador, because he was a healthy young man who was
     within easy reach – he lived in Masahuat, one of the most
     conflicted areas of the country, so he was close at hand.
     . . . Thus [Petitioner] was persecuted not necessarily
     because of his political opinion, but because he was a
     member of a particular social group: young men living in
     hotly contested war zones who are easy to kidnap.

                                * * *

     Moreover, if we could turn the clock back and interview
     the FMLN guerrillas, they would surely be certain that
     since [he] was a Salvadoran peasant, then he must support
     them politically – or if he didn’t, he should.       They
     didn’t kidnap young men who they thought would turn out
     to be their enemies.

(A.R. 6.)    Petitioner specifically challenged the IJ’s reliance

upon Elias-Zacarias to determine that he had not demonstrated

persecution on account of political opinion.      Thus, we conclude

that Petitioner sufficiently exhausted his claim of persecution on

account of political opinion for us to exercise jurisdiction over

his petition.

C.   Petitioner has proffered no evidence which would compel
     reversal of the Immigration Judge’s determination that he
     failed to prove persecution on account of political opinion –
     imputed or actual.

     1.     Petitioner failed to prove past persecution on account of

                                  9
            political opinion.

      In the proceedings before the IJ, Petitioner testified at

length   about    his    experiences        with    the   guerrilla      army    in   El

Salvador.     Petitioner stated that he had been kidnapped by the

guerrilla army and had been taught how to use various weapons to

fight. Petitioner testified that he was taken into custody so that

he could learn how to fight on behalf of the guerrillas in

furtherance      of    their    goal   of     increasing   the    area    that    they

controlled.      On consideration of Petitioner’s testimony regarding

this detention by the guerrillas, the IJ stated in his order that

Petitioner “[had] articulated no political opinions.”                     (A.R. 28.)

Even on Petitioner’s appeal to the Board, he offered nothing but

his conjecture as to the possible motive of the guerrillas in

kidnapping Petitioner.           Petitioner stated in his brief: “[I]f we

could turn the clock back and interview the FMLN guerrillas, they

would surely be certain that since [Petitioner] was a Salvadoran

peasant, then he must support them politically – or if he didn’t,

he   should.”         (A.R.    6.)     This      conjecture,    without    more,      is

insufficient to prove the guerrillas’ motive.                  Indeed, the Supreme

Court in Elias-Zacarias stated that because the statute makes

motive critical, a petitioner “must provide some evidence of it,

direct or circumstantial.              And if he seeks to obtain judicial

reversal of the BIA’s determination, he must show that the evidence

he presented was so compelling that no reasonable factfinder could

fail to find the requisite fear of persecution.”                  Elias-Zacarias,

502 U.S. at 483-84.           This, Petitioner has failed to do.

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      In   his    brief    before     this      court,   Petitioner     attempts      to

distinguish his case from Elias-Zacarias; however, his attempts are

unavailing. Petitioner argues that his treatment by the Salvadoran

guerrilla army was more severe than that accorded to Elias-Zacarias

by the Guatemalan guerrillas.            Yet, Petitioner misses the point of

the Supreme Court’s holding in Elias-Zacarias, which did not turn

on   the    degree    of    the   persecution,       but    the    motive     for   the

persecution.       Like the petitioner in Elias-Zacarias, Petitioner

here failed to articulate, before either the IJ or the Board, any

political opinion that would establish that his recruitment was for

anything other than to swell the ranks of the guerrilla army.

Petitioner similarly failed to demonstrate with sufficient evidence

that the guerrilla army imputed any political opinion to him that

served as the motive for his kidnapping and detention.                     Therefore,

we find that the evidence presented in this case does not compel a

conclusion contrary to that of the IJ.

      2.     Because Petitioner failed to prove past persecution on
             account of political opinion, or any other protected
             ground,2 he is not entitled to a presumption of future
             persecution on the same basis.

      In his brief before this court, Petitioner argues that because
he has suffered past persecution, he is presumed to be at risk of
future persecution, and is therefore eligible for withholding of
removal.     When an applicant for withholding is determined to have



      2
       Petitioner does not challenge before this court the IJ’s conclusion that he did
not suffer persecution on account of his membership in a particular social group. This
court has held that “it is proper for an appellate court to consider waived all issues
not raised in an appellant’s briefs.”     Ramani, 378 F.3d at 558 (citing Farm Labor
Organizing Comm. v. Ohio State Highway Patrol, 308 F.3d 523, 528 n.1, 544 n.8 (6th Cir.
2002)). Petitioner’s failure to address the IJ’s determination with regard to persecution
on account of membership in a social group constitutes waiver.

                                           11
suffered past persecution in the proposed country of removal, on
account of a protected ground, it is presumed that the applicant’s
life or freedom would be threatened in the future in the country of
removal.       See   Almuhtaseb,       453   F.3d     at   750    (citing   8    C.F.R.
§208.16(b)(1)(I)).3         This presumption may be rebutted if the IJ
finds by a preponderance of the evidence that: 1) there has been a
fundamental change in the circumstances such that the applicant’s
life or freedom would not be threatened on account of one of the
statutorily protected grounds; or 2) the applicant could avoid a
future threat to his life or freedom by relocating to another part
of    the    proposed      country     of        removal   and,    under    all    the
circumstances, it would be reasonable to expect the applicant to do
so.   8 C.F.R. §1208.16(b)(1).           Because the IJ correctly found that
Petitioner     failed     to   prove    past      persecution     on   account    of   a
statutorily protected ground, Petitioner is not entitled to the
benefit of this presumption.
      We also note that after determining that Petitioner’s past
detention was not on account of one of the five protected grounds,
the IJ also found that: 1) the Salvadoran civil war has ended and
the guerrillas are not targeting former guerrillas who escaped or
former combatants against the guerrillas and 2) Petitioner could
avoid a future threat by living in some other part of El Salvador,
as he safely did for at least eight years prior to coming to the
United States.        Thus, any presumption to which Petitioner might
otherwise have been entitled had he proven persecution on account
of a protected ground, nevertheless would have been rebutted by the
clear evidence before the IJ.


      3
       Although the Almuhtaseb court applied 8 C.F.R. §208.16, the relevant regulation
in this case is 8 C.F.R. §1208.16, which applies to proceedings before the Board. See
Huang v. INS, 436 F.3d 89, 90, n.1 (2d Cir. 2006).      However, the language of these
regulations is identical, and cases construing §208.16(b)(1) are thus instructive in the
instant case.

                                            12
D.    The evidence does not compel reversal of the Immigration
      Judge’s determination that Petitioner failed to prove a clear
      probability of future persecution in El Salvador.

      The    Government     contends    that   Petitioner   has   waived   any

challenges to the IJ’s conclusion that he did not face a clear

probability of future persecution.           Yet, Petitioner does challenge

this determination by attempting to rely upon the presumption of

future persecution.         As discussed, supra, however, Petitioner’s

reliance on this presumption is unavailing.

      The record is devoid of any evidence other than Petitioner’s

conclusory testimony to support the contention that the guerrillas

have become gang members who will harm him because he fled.                In

fact, there is evidence to the contrary.               The IJ relied upon

findings from a State Department Report, the validity of which

Petitioner does not challenge here, in determining that “there is

no evidence that the guerrillas, who are now disbanded and part of

the political process in El Salvador, are targeting escapees from

their ranks or people who fought against them.”               (A.R. 29.)   We

agree with the IJ that Petitioner’s claim that he will be harmed by

the   gang   members   is    severely    undermined   by    Petitioner’s   own

testimony that he safely remained in the country for several years

after he fled.     The IJ also opined that to the extent Petitioner

fears gangs, criminal activity is not a basis for withholding of

removal.     (A.R. 33) (citing Olivia-Muralles v. Ashcroft, 328 F.3d

25 (1st Cir. 2003)); see also Konan v. AG of the United States, 432

F.3d 497, 506 (3d Cir. 2005) (stating that “general conditions of

civil unrest or chronic violence and lawlessness do not support

                                        13
asylum”).   The   record   supports    the    Board’s   conclusion   that

Petitioner failed to meet his burden of proof that he will be

subject to persecution if he is returned to El Salvador.

                           IV.   CONCLUSION

     For the foregoing reasons, we AFFIRM the Board’s decision and

DENY Petitioner’s request for review.




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