Aguilar v. Mukasey , 294 F. App'x 147 ( 2008 )


Menu:
  •                 REVISED SEPTEMBER 26, 2008
    IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT    United States Court of Appeals
    Fifth Circuit
    FILED
    No. 07-60822                   September 26, 2008
    Summary Calendar
    Charles R. Fulbruge III
    Clerk
    OSCAR ORLANDO AGUILAR
    Petitioner
    v.
    MICHAEL B MUKASEY, U S ATTORNEY GENERAL
    Respondent
    Petition for Review of an Order of the
    Board of Immigration Appeals
    BIA No. A97 745 836
    Before KING, GARWOOD and BARKSDALE, Circuit Judges.
    PER CURIAM:*
    Oscar Orlando Aguilar (Aguilar), a native and citizen of El Salvador,
    petitions for review of the Board of Immigration Appeals’ (BIA’s) decision
    denying his application for withholding of removal. Aguilar claims that he
    suffered persecution in El Salvador because gang members threatened to kill
    him, his mother, and his brother unless his brother joined their gang. He also
    *
    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    should not be published and is not precedent except under the limited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. 07-60822
    claims that he will face more persecution in El Salvador if he is forced to return
    to that country.
    If the BIA has made no error of law, we will affirm its conclusion if it is
    based     on   the   evidence   presented    and   is   substantially   reasonable.
    Ontunez-Tursios v. Ashcroft, 
    303 F.3d 341
    , 351 (5th Cir. 2002). We will reverse
    only if the evidence compels a contrary conclusion. Carbajal-Gonzalez v. I.N.S.,
    
    78 F.3d 194
    , 196 (5th Cir. 1996).
    An applicant for withholding of removal bears the burden of
    demonstrating a clear probability that his life or freedom would be threatened
    on account of race, religion, nationality, membership in a particular social group,
    or political opinion if he is returned to his country of origin. Chen v. Gonzales,
    
    470 F.3d 1131
    , 1138 (5th Cir. 2006). A clear probability is one that establishes
    that it is more likely than not that the applicant would be subject to persecution
    for one of the reasons specified by law. Campos-Guardado v. I.N.S., 
    809 F.2d 285
    , 290 (5th Cir. 1987). The clear-probability standard for withholding of
    removal requires that the applicant show “a higher objective likelihood of
    persecution than that required” to prevail on an application for asylum. Chen,
    
    470 F.3d at 1138
     (noting that an applicant for asylum must demonstrate a well-
    founded fear of persecution).      Threats alone do not necessarily constitute
    persecution. See Tesfamichael v. Gonzales, 
    469 F.3d 109
    , 116 (5th Cir. 2006);
    Mikhael v. I.N.S., 
    115 F.3d 299
    , 304 & n.4 (5th Cir. 1997).
    Aguilar testified that he first came to the United States in March 2001,
    that he returned to El Salvador in December 2003 because his mother was sick.
    His parents and his brother lived in El Salvador. In January 2004 Aguilar was
    told by his mother and brother that gang members – recognizable as such by
    their tattoos – came by (but not inside) their house and told his mother and
    brother, that if his brother did not join the gang they would “kill him, kill my
    mother and kill me.” Aguilar was not present at that time. In his affidavit in
    support of his application for withholding Aguilar states that “gangs came
    2
    No. 07-60822
    around our house while I was there and threatened to kill everyone unless our
    brother joined them.” Aguilar testified that neither he nor any of his family ever
    reported any of this to the police or other authorities. There is no evidence any
    of the gang members had any type of weapon. Because of these threats his
    brother left El Salvador and Aguilar does not know where he is. Aguilar because
    of those threats left El Salvador in February 2004 entering the United States in
    March 2004. Aguilar also testified that he, himself, had never had any problems
    with gangs and was “never harmed” while in El Salvador. There is no evidence
    of any harm to either of his parents who remain in El Salvador (or to his
    brother). There is no other evidence of threats or anything else claimed to
    constitute persecution or to pose a risk of persecution on return. The evidence
    does not compel the conclusion either that Aguilar had actually suffered
    persecution in El Salvador or that there is a clear probability that he will suffer
    persecution if returned to El Salvador.
    Moreover, there was no evidence that any of the threats implicated any of
    the protected grounds provided by law. See Roy v. Ashcroft, 
    389 F.3d 132
    , 138
    (5th Cir. 2004) (“A clear probability means that it is more likely than not that
    the applicant’s life or freedom would be threatened by persecution on account of
    either his race, religion, nationality, membership in a particular social group, or
    political opinion.”). Except for stating that he fears more threats of the type he
    previously received, which did not amount to persecution, Aguilar points to no
    evidence of future acts that would constitute persecution. Additionally, none of
    the threats of which Aguilar complains implicate any of the protected grounds.
    See Roy v. Ashcroft, 
    389 F.3d 132
    , 138 (5th Cir. 2004).1
    1
    Nothing in Aguilar’s testimony even suggests otherwise. His withholding
    application answers “no” to the question:
    “Have you or your family members ever belonged to or been
    associated with any organizations or groups in your home country,
    such as, but not limited to, a policity party, student group, labor
    3
    No. 07-60822
    Although Aguilar mentions the Convention Against Torture (CAT) in his
    brief in this court, he did not argue a CAT claim in his brief to the BIA.
    Consequently, we have no jurisdiction to consider a CAT claim by Aguilar. See
    Witter v. I.N.S., 
    113 F.3d 549
    , 554 (5th Cir. 1997).
    PETITION DENIED.
    union, religious organization, military or paramilitary group, civil
    patrol, guerrilla organization, ethnic group, human rights group, or
    the press or media?”
    His affidavit states that he is “a member of a particular social group, that
    is a male.”
    4