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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 17-13309
Non-Argument Calendar
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Agency No. A208-752-974
CRISTIAN ARTURO LOPEZ-AREVALO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of a Decision of the
Board of Immigration Appeals
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(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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