          United States Court of Appeals
                      For the First Circuit


No. 11-1548

                     EDGAR ROLANDO TAY-CHAN,

                           Petitioner,

                                v.

              ERIC H. HOLDER, JR., Attorney General,

                           Respondent.


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


                              Before

                       Lynch, Chief Judge,
              Torruella and Boudin, Circuit Judges.



     Randy Olen on brief for petitioner.
     Ada E. Bosque, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, U.S. Department of Justice,
Stuart F. Delery, Acting Assistant Attorney General, Civil
Division, and William C. Peachey, Assistant Director, Office of
Immigration Litigation, on brief for respondent.



                         November 9, 2012
           LYNCH, Chief Judge.      On June 11, 2009, an Immigration

Judge ("IJ") denied petitioner Edgar Rolando Tay-Chan's application

for   withholding   of   removal   but   granted   his   application   for

voluntary departure.      The Board of Immigration Appeals ("BIA")

affirmed the IJ's decision and dismissed Tay-Chan's appeal from

this decision on April 14, 2011.         Tay-Chan timely petitions for

review.   We deny the petition.

                                    I.

           Tay-Chan is a native and citizen of Guatemala who entered

the United States without inspection either in August of 2004

(according to the Immigration and Naturalization Service ("INS") of

the U.S. Department of Justice) or June or July of 2003 (according

to Tay-Chan's own testimony in removal proceedings).

           On April 25, 2006, INS issued Tay-Chan a notice to appear

in removal proceedings.     On March 19, 2008, Tay-Chan conceded in

removal proceedings that he was removable as charged in the notice

to appear, but refused to designate a country for removal purposes.

Instead, he sought withholding of removal or, in the alternative,

voluntary departure.1


      1
       The IJ observed that "[t]he respondent has not applied for,
nor is he eligible for, political asylum. The respondent arrived
in the United States in July of 2003, and did not submit his
application for asylum until March 19, 2008." Though the BIA noted
that "it appears that the respondent only sought withholding of
removal and is not contesting the Immigration Judge's finding that
his asylum application was untimely filed," it "nonetheless
affirm[ed] that his application was time-barred." Tay-Chan does
not challenge this finding before us.

                                   -2-
            At his June 11, 2009 hearing, Tay-Chan testified that he

was born and lived in Guatemala, where he and members of his family

experienced several incidents of violence, and that he was thirty

years old.      In 1986, Tay-Chan's uncle was "kidnapped, and he

disappeared."    Tay-Chan speculated as to the reason: "[i]t could

have been the police.    It could have been the armed forces.        But I

don't know."    Tay-Chan's declaration added that it might have been

"guerrillas" who kidnapped his uncle.      In any event, Tay-Chan and

his family "never heard from him again."

            Tay-Chan's declaration also stated that in 1995 or 1996,

he "was shot at, an act of random violence, by someone that I did

not know."     Tay-Chan testified that he was shot five times and

still had one bullet in his body, and repeated that "I don't know

who it was."    Tay-Chan went to the authorities after the shooting;

though the police "took note of it," they never investigated, and

did not arrest or prosecute anyone.       Tay-Chan admitted that there

were   no   witnesses   to   his   shooting,   and   agreed   that   "it's

understandable that the police weren't able to make an arrest . .

. since nobody saw it." He remained in Guatemala for another seven

or eight years without harm.

            In April of 2003, Tay-Chan's brother, a bus driver, was

shot to death for refusing to pay tribute to the Maras.          "Maras"

refers to one or more Guatemalan gangs.        See Socop v. Holder, 407

F. App'x. 495, 496 (1st Cir. 2011); Picon-Aragon v. Attorney Gen.


                                    -3-
of the U.S., 444 F. App'x. 601, 602 (3d Cir. 2011).                  Tay-Chan

testified that he did not "know if [the authorities] looked or not,

but there was nobody detained for it."            One or two of Tay-Chan's

cousins died "under the same conditions or the same causes"; though

the authorities may have investigated these incidents, they never

found the guilty persons.

            In June or July of 2003, Tay-Chan left Guatemala and came

to the United States.         As he testified, he "came from Guatemala due

to the crime rate.       Well, because of the economic situation, the

problem with the maras."             Tay-Chan has since married and had a

child here2 who was nine months old at the time of Tay-Chan's

testimony.

            Tay-Chan testified to his belief that neither the police

nor the military could protect him if he were to return to

Guatemala because "there are many people in the armed forces, in

the military and in the police that are in -- with the people that

are   in   the   maras   or    the   burglars."    He   elaborated   that   in

Guatemala,

      I don't think that there is any place where you can feel
      safe. Like I said, you might buy your own house. And,
      then, these people come, and they demand a monthly rate
      from you, so that they won't kill you. And it's the same
      thing with -- if you want to have a business. They, they
      will ask the same. They, they will ask you to pay for
      your security. You can't have a good quality of life.
      You cannot buy your car. You cannot have money in the


      2
      Tay-Chan also had two children, aged eight and ten years old
at the time of his testimony, in Guatemala.

                                        -4-
     bank. Because they'll find out about these things. And,
     so, they, they, they come. And, and they extort. And
     they don't let you build up your life.

            The IJ's oral decision found Tay-Chan's testimony to be

credible,    and   that     Tay-Chan     had    not   been   a    victim   of   past

persecution on account of one of the statutory grounds, noting that

"the respondent is unable to ascertain the reason for him having

been shot or by whom."       The IJ also concluded that it was not "more

likely than not that [Tay-Chan] would face persecution on account

of one of the five statutory grounds," since "[w]hat we have here

is that the respondent fears harm from ordinary criminals" whose

motivation was "merely to steal [Tay-Chan's] money."                        The IJ

further noted that following Tay-Chan's shooting, he "remained in

Guatemala thereafter for a period of seven or eight years without

further   harm     having    come   to     him."      The    IJ   considered    the

mistreatment Tay-Chan's family members suffered in Guatemala, but

noted that there was no evidence as to the motive behind some of

this mistreatment.          The IJ denied Tay-Chan's application for

withholding of removal3 but granted him voluntary departure.

            The    BIA    agreed    that       Tay-Chan     was   ineligible    for

withholding of removal and dismissed his appeal.                      As the BIA

explained,




     3
        Though Tay-Chan did not apply for relief under the
Convention Against Torture ("CAT"), the IJ nonetheless found that
Tay-Chan was ineligible for such relief.

                                         -5-
      The group [Tay-Chan] seeks to define -- victims of gang
      threats and possible extortion -- is overly broad and not
      defined with sufficient particularity to delineate its
      membership.    It also lacks social visibility to be
      perceived as a group by society and is not marked by a
      common, immutable characteristic, such as shared past
      experience or sex, color, or kinship ties. See Matter of
      C-A-, 23 I&N Dec. 951, 958-59 (BIA 2006). The respondent
      has therefore failed to establish that a statutorily
      enumerated ground, be it membership in a particular
      social group or any other protected ground like political
      opinion, was or will be at least one central reason for
      his fear of returning to Guatemala and that there is a
      clear probability of his persecution, if returned there.
      See INS v. Cardoza-Fonseca, 480 U.S. 421 (1987); INS v.
      Stevic, 467 U.S. 407 (1984).     It is, moreover, well-
      established that an asylum applicant's fear of harm
      resulting from general conditions of violence and civil
      unrest affecting the home country's populace as a whole
      does not constitute a "well-founded fear of persecution"
      within the meaning of the Act, much less a clear
      probability of persecution. See Matter of S-V-, 22 I&N
      Dec. 1306 (BIA 2000).

Tay-Chan timely sought review.

                                    II.

           Tay-Chan's petition for review argues that the BIA erred

by (1) determining that Tay-Chan had not been a victim of past

persecution in Guatemala, and (2) holding that Tay-Chan was not a

member of a particular social group. He also asserts that imposing

a   requirement   of    "social   visibility"   as   to   "social   groups"

"constitute[s]         [an]   arbitrary    and       capricious      agency

interpretation[]."

           Where the BIA affirms an IJ's ruling while analyzing the

bases offered for that ruling, we review the IJ's and BIA's

opinions as a unit.       Hussain v. Holder, 576 F.3d 54, 57 (1st Cir.


                                    -6-
2009).    We consider only the record upon which the order is based,

8 U.S.C. § 1252(b)(4)(A)-(B), and accept administrative findings of

fact so long as they are "supported by reasonable, substantial, and

probative evidence on the record considered as a whole."             Seng v.

Holder,    584   F.3d   13,   17   (1st    Cir.   2009)   (quoting   INS   v.

Elias-Zacarias, 502 U.S. 478, 481 (1992)) (internal quotation marks

omitted).    We may overrule the BIA's decision only if there is an

error of law or the evidence "compels a contrary conclusion."

Segran v. Mukasey, 511 F.3d 1, 5 (1st Cir. 2007).            We review the

BIA's conclusions of law de novo, giving some deference to its

interpretation of statutes and regulations within its purview.

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

            Withholding of removal protects an otherwise removable

alien from removal to a country where “the alien's life or freedom

would be threatened in that country because of the alien's race,

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

political opinion.”       8 U.S.C. § 1231(b)(3)(A).         Withholding of

removal "imposes a 'more stringent burden of proof on an alien than

does a counterpart claim for asylum,'" Morgan v. Holder, 634 F.3d

53, 60 (1st Cir. 2011) (quoting Rodriguez-Ramirez v. Ashcroft, 398

F.3d 120, 123 (1st Cir. 2005)), because "the alien must demonstrate

'a clear probability of persecution, rather than merely a well-

founded fear of persecution.'"        Id. (quoting Ang v. Gonzales, 430

F.3d 50, 58 (1st Cir. 2005)).        An applicant may show that he was


                                     -7-
subject to past persecution; this creates a rebuttable presumption

that       he   will   be   subject   to    future     persecution.   8   C.F.R.

§ 1208.16(b)(1). Alternatively, an applicant may carry this burden

by demonstrating that he will “more likely than not” face future

persecution.       Id. § 1208.16(b)(2).          Under the REAL ID Act of 2005,4

in addition to meeting his burden of showing persecution, Tay-Chan

must show that one of the five protected grounds was or will be at

least      “one   central     reason”      for   his   persecution.   8   U.S.C.

§§ 1158(b)(1)(B)(i), 1231(b)(3)(C).

                The term "social group," one of the protected grounds, is

not defined by statute, and we have upheld the BIA's definition.5

See, e.g., Beltrand-Alas v. Holder, 689 F.3d 90, 93-94 (1st Cir.

2012); Larios v. Holder, 608 F.3d 105, 108 (1st Cir. 2010); Mendez-

Barrera, 602 F.3d at 25; Faye v. Holder, 580 F.3d 37, 41 (1st Cir.

2009); Scatambuli v. Holder, 558 F.3d 53, 59-60 (1st Cir. 2009).

Accord: Orellana–Monson v. Holder, 685 F.3d 511, 519–20 (5th Cir.

2012); Rivera–Barrientos v. Holder, 666 F.3d 641, 648-53 (10th Cir.


       4
       Because Tay-Chan submitted his application for withholding
of removal on March 19, 2008, his application is governed by the
REAL ID Act of 2005 (which became effective on May 11, 2005). See
8 U.S.C. § 1158 note (Effective Date of 2005 Amendment); Díaz-
García v. Holder, 609 F.3d 21, 27 (1st Cir. 2010).
       5
       Petitioner acknowledges our case law but asks that we change
it in light of the Seventh Circuit decision in Gatimi v. Holder,
578 F.3d 611 (7th Cir. 2009). Our prior precedents bind the panel.
See Mongeau v. City of Marlborough, 492 F.3d 14, 18-19 (1st Cir.
2007).   Further, petitioner makes no claim that there has been
inconsistent application of the standard as to the claim he is
making. And he did not make any such argument to the BIA.

                                           -8-
2012); Al–Ghorbani v. Holder, 585 F.3d 980, 994 (6th Cir. 2009);

Ramos–Lopez v. Holder, 563 F.3d 855, 858–61 (9th Cir. 2009);

Davila–Mejia v. Mukasey, 531 F.3d 624, 628–29 (8th Cir. 2008);

Ucelo–Gomez v. Mukasey, 509 F.3d 70, 73 (2d Cir. 2007) (per

curiam).

              "[T]he BIA has described a social group as a group of

persons sharing a common, immutable characteristic that makes the

group     socially       visible    and     sufficiently   particular."

Mendez-Barrera, 602 F.3d at 25.           For a group to satisfy the social

visibility criterion, "it must be generally recognized in the

community as a cohesive group," id. at 26, and "[t]he relevant

inquiry is whether the social group is visible in the society, not

whether the alien herself is visible to the alleged persecutors,"

id. at 27.      The particularity inquiry concerns whether the group

can     "be    defined    with     sufficient    particularity   to   avoid

indeterminacy."      Scatambuli, 558 F.3d at 59 (citing In re A-M-E &

J-G-U-, 24 I. & N. Dec. 69, 76 (BIA 2007)).

              Tay-Chan argues that the IJ and BIA erred in concluding

that he had not been the victim of past persecution in Guatemala

because "[t]he harm suffered by Mr. Tay-Chan and his family were

not isolated incidents, but a pattern of persecution directly

related to Mr. Tay-Chan by way of their family relationship." Tay-

Chan asserts that his "testimony, which was accepted as true,

established that he was shot by individuals he assumed were gang


                                      -9-
members; his brother was killed by gang members during an extortion

attempt; two cousins were killed, and his uncle was kidnapped and

presumably killed as well."

          "[I]t is not enough merely to show that multiple members

of a single family had negative experiences.     Those experiences

would, at the very least, have to rise to the level of persecution

and be causally linked to family membership." Ruiz v. Mukasey, 526

F.3d 31, 38 (1st Cir. 2008).   Tay-Chan admitted he did not know

the motives behind the mistreatment he and his uncle experienced in

Guatemala, and that the killings of his brother and cousins were

economically motivated.    The IJ and BIA thus did not err in

concluding that Tay-Chan had failed to demonstrate past persecution

on account of a protected ground.     That finding of a failure to

show past persecution means there was no presumption of future

persecution.

          As to future persecution, Tay-Chan disputes the BIA's

affirmance of the IJ's finding that he has not shown that it was

more likely than not that he would face persecution on the basis of

a statutorily protected ground. He argues the BIA erred because he

belongs to what he terms a "social group" which faces persecution.

          The BIA reasonably understood Tay-Chan to be claiming

that this social group was "victims of gang threats and possible

extortion."    The BIA reasonably rejected this purported "social

group" as overly broad and having insufficient particularity to


                               -10-
meet the social group criterion, and explained why.               It made no

error.

            It    also   stressed   that   fear   of   harm    from    general

conditions of violence and civil unrest does not even establish a

"well-founded fear of persecution," the asylum standard, much less

a clear probability of persecution, the withholding of removal

standard.    We have agreed that "mere vulnerability to criminal

predations cannot define a cognizable social group." Arévalo-Girón

v. Holder, 667 F.3d 79, 83 (1st Cir. 2012).

            On petition to this court, Tay-Chan shifts ground and

says that the BIA mischaracterized his proposed social group in

this case.       He now argues that the social group is "expatriates

returning to Guatemala after long residence in the United States

who return with their United States citizen children."                Tay-Chan

made no such claim to the IJ6 or the BIA as to the social group on

which he relied.      At most, he asserted to the BIA that his having

a child was another factor adding to his risk.                His failure to

identify such a group before the IJ or BIA is an omission for which

he alone is responsible.      It is certainly not grounds for granting

his petition for review.        And the BIA reasonably rejected the

argument he did make.




     6
       Before the IJ, Tay-Chan asserted that if he returns to
Guatemala, he will be viewed as a person who is returning from the
United States and has money.

                                    -11-
           Finally, Tay-Chan argues that "the Court's acceptance of

the Board's recently-enacted concept of 'social visibility' as a

requirement for qualification as a particular social group . . . .

must be reexamined, particularly in light of the recent decision of

the United States Supreme Court in Judulang v. Holder[], 132 S. Ct.

476 (2011)."   We have already rejected this argument, explaining

that   "Judulang   is   inapposite    to    this   case   as   it   involved   a

different statutory provision and did not involve an agency's

interpretation of any statutory language." Beltrand-Alas, 689 F.3d

at 93.

           We deny Tay-Chan's petition for review.




                                     -12-
