[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 11-10829 ELEVENTH CIRCUIT
APRIL 16, 2012
Non-Argument Calendar
JOHN LEY
________________________
CLERK
Agency No. A028-551-091
YADER RAMON CASTILLO-GUERRERO,
Petitioner,
versus
U.S. ATTORNEY GENERAL,
Respondent.
________________________
Petition for Review of a Decision of the
Board of Immigration Appeals
________________________
(April 16, 2012)
Before EDMONDSON, WILSON and BLACK, Circuit Judges.
PER CURIAM:
Yader Ramon Castillo-Guerrero, a native and citizen of Nicaragua,
petitions for review of the order by the Board of Immigration Appeals (“BIA”)
affirming the decision of the Immigration Judge (“IJ”). The IJ’s decision denied
asylum and withholding of removal.* No reversible error has been shown; we
dismiss the petition in part and deny it in part.
We review the BIA’s decision in this case because the BIA did not
expressly adopt the IJ’s decision. See Al Najjar v. Ashcroft, 257 F.3d 1262, 1284
(11th Cir. 2001). “While we consider the BIA’s interpretation of applicable
statutes de novo, ‘we are also obliged . . . to defer to the BIA’s interpretation . . . if
that interpretation is reasonable.” Id. (internal quotation omitted). And we review
fact determinations under the “highly deferential substantial evidence test”
whereby we “must affirm the BIA’s decision if it is ‘supported by reasonable,
substantial, and probative evidence on the record considered as a whole.’”
Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th Cir. 2004) (en banc). We
“view the record evidence in the light most favorable to the . . . decision and draw
all reasonable inferences in favor of that decision.” Id. at 1027. To reverse a fact
determination, we must conclude “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 IJ also denied relief under the Convention Against Torture. We will not address this claim,
however, because Castillo-Guerrero failed to challenge this denial in his appeal to the BIA -- and,
thus, failed to exhaust his administrative remedies -- and fails to raise the issue on appeal. See
Amaya-Artunduaga v. U.S. Att’y Gen., 463 F.3d 1247, 1250-51 (11th Cir. 2006); Sepulveda v. U.S.
Att’y Gen., 401 F.3d 1226, 1228 n.2 (11th Cir. 2005).
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An alien may obtain asylum if he is a “refugee,” that is, a person unable or
unwilling to return to his country of nationality “because of persecution or a well-
founded fear of persecution on account of” a protected ground, including political
opinion and membership in a particular social group. 8 U.S.C. §§ 1101(a)(42)(A),
1158(a)(1), (b)(1). The asylum applicant bears the burden of proving statutory
“refugee” status with specific and credible evidence. Forgue v. U.S. Att’y Gen.,
401 F.3d 1282, 1287 (11th Cir. 2005).
Castillo-Guerrero sought asylum and withholding of removal based on his
membership in a particular social group consisting of people who resisted gang
recruitment efforts. He contended that two neighborhood gangs tried to recruit
him and threatened to kill him if he refused to join. When the gangs continued to
harass him -- despite his reports to the police -- Castillo-Guerrero fled to Costa
Rica, where he stayed for almost five years before entering the United States.
The BIA denied relief, concluding that Castillo-Guerrero failed to
demonstrate that he was a member of a “particular social group” within the
meaning of the Immigration and Nationality Act (“INA”) because mistreatment on
account of resistance to gang recruitment does not constitute persecution on
account of a protected ground. The BIA also determined that the group that
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Castillo-Guerrero described was “too amorphous” to be recognized as a particular
social group.
For purposes of the INA, members of a “particular social group” are people
with a “shared characteristic . . . such as sex, color, or kinship ties, or in some
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). In determining whether a social group qualifies for protection under
the INA, courts must consider whether the shared characteristic is immutable and
whether it is socially visible. Id. at 1194. In other words, the shared characteristic
“must be one that the members of the group either cannot change, or should not be
required to change because it is fundamental to their individual identities or
consciences” and one that is “highly visible and recognizable by others in the
country in question.” Id. at 1193-94.
Castillo-Guerrero has not identified himself as a member of a social group
that meets these requirements. Although he may be at risk of persecution, that risk
alone does not create a “particular social group”. See id. at 1198. And nothing
evidences that the gangs “would treat [Castillo-Guerrero] any differently from any
other person the [gangs] perceived to have interfered with its activities.” See id.;
see also Matter of S-E-G-, 24 I.&N. Dec. 579 (BIA 2008) (concluding that a social
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group consisting of people who had resisted recruitment efforts by a criminal gang
“based on their own personal, moral, and religious opposition to the gang’s values
and activities” did not constitute a “particular social group” under the INA). Thus,
Castillo-Guerrero has failed to demonstrate either that his proposed social group
shares an immutable characteristic or is sufficiently visible.
Substantial evidence supports the BIA’s decision that Castillo-Guerrero was
unentitled to asylum; and we are not compelled to reverse the decision. Castillo-
Guerrero’s failure to establish eligibility for asylum forecloses his eligibility for
withholding of removal. See Forgue, 401 F.3d at 1288 n.4.
PETITION DISMISSED IN PART, DENIED IN PART.
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