Case: 14-13233   Date Filed: 04/24/2015   Page: 1 of 7


                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 14-13233
                         Non-Argument Calendar
                       ________________________

                        Agency No. A094-889-427



RODRIGO DIAZ-HINCAPIE,
MARIA PAULA VEGA RESTREPO,
NATALIA DIAZ VEGA,

                                                                      Petitioners,

                              versus

U.S. ATTORNEY GENERAL,

                                                                     Respondent.

                       ________________________

                  Petition for Review of a Decision of the
                       Board of Immigration Appeals
                        ________________________

                              (April 24, 2015)

Before WILSON, JULIE CARNES and FAY, Circuit Judges.

PER CURIAM:
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      Rodrigo Diaz-Hincapie (Diaz-Hincapie), his wife Maria Paula Vega

Restrepo, and their daughter Natalia Diaz-Hincapie Vega seek review of the Board

of Immigration Appeals’ (BIA) final order affirming the Immigration Judge’s (IJ)

denial of Diaz-Hincapie’s application for asylum and withholding of removal.

      We review only the decision of the BIA, except to the extent that the BIA

expressly adopts the IJ’s decision. Najjar v. Ashcroft, 

, 1284 (11th

Cir. 2001). To the extent the BIA agrees with the IJ’s reasoning, we will also

review the IJ’s decision. 

factual determinations under the

substantial evidence test. Carrizo v. U.S. Att’y Gen., 

, 1330 (11th

Cir. 2011) (per curiam). We must affirm a decision if it is supported by

reasonable, substantial, and probative evidence on the record considered as a

whole. 

test, we view the record evidence in the light most favorable

to the decision and draw all reasonable inferences in favor thereof. 

reverse an IJ’s factual findings only if the evidence compels a reasonable factfinder

to find otherwise. 

Whether a group constitutes a particular social

group under the Immigration and Nationality Act (INA) is a question of law that

we review de novo. See Castillo-Arias v. U.S. Att’y Gen., 

, 1195

(11th Cir. 2006).




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      The Attorney General has the discretion to grant asylum to an alien who

establishes that he or she is a “refugee.” INA § 208(b)(1), 8 U.S.C. § 1158(b)(1).

A “refugee” is:

      any person who is outside any country of such person’s nationality or,
      in the case of a person having no nationality, is outside any country in
      which such person last habitually resided, and who is unable or
      unwilling to return to, and is unable or unwilling to avail himself or
      herself of the protection of, that 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). To establish eligibility, the alien

must, with specific and credible evidence, establish (1) past persecution on account

of a statutorily listed factor, or (2) a well-founded fear that the statutorily listed

factor will cause future persecution. 8 C.F.R. § 208.13; Sepulveda v. U.S. Att’y

Gen., 

, 1230–31 (11th Cir. 2005) (per curiam). “[P]ersecution is an

extreme concept, requiring more than a few isolated incidents of verbal harassment

or intimidation.” 

(internal quotation marks omitted).

       The applicant must also demonstrate that one of the enumerated grounds

“was or will be at least one central reason” for the persecution. INA

§ 208(b)(1)(B)(i), 8 U.S.C. § 1158(b)(1)(B)(i). The statutory grounds for asylum

specifically include “membership in a particular social group, or [a] political

opinion.” INA § 101(a)(42)(A), 8 U.S.C. § 1101(a)(42)(A). “Persecution on

account of political opinion is persecution on account of the victim’s political
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opinion, not the persecutor’s.” Sanchez v. U.S. Att’y Gen., 

, 437–38

(11th Cir. 2004) (per curiam) (internal quotation marks omitted). The key question

is whether the persecutor is acting because of the applicant’s political opinion. See

We have held that “evidence that either is consistent with acts of private

violence or the petitioner’s failure to cooperate with guerillas, or that merely shows

that a person has been the victim of criminal activity, does not constitute evidence

of persecution based on a statutorily protected ground.” Ruiz v. U.S. Att’y Gen.,

, 1258 (11th Cir. 2006) (per curiam).

      Congress has not defined what constitutes a “particular social group” under

the INA, and we defer to the BIA’s reasonable interpretation of that term, pursuant

to Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 

, 104 S.

Ct. 2778 (1984). 

–96. In Castillo-Arias, we

approved the BIA’s definition of a “particular social group” as a group of persons

who “share a common, immutable characteristic . . . such as sex, color, or kinship

ties, or in some circumstances a shared past experience such as former military

leadership or land ownership.” 

1196–97 (internal quotation marks

omitted). This 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.” 

(internal quotation marks

omitted).


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      To qualify as a “particular social group,” a group must: (1) share an

immutable characteristic, (2) not be defined by the risk of persecution alone, and

(3) not be too numerous or inchoate. Rodriguez v. U.S. Att’y Gen., 

,

1310 (11th Cir. 2013) (per curiam). Additionally, a particular social group must

have “social visibility” (which the BIA recently renamed “social distinction”),

which requires a group to be socially distinct within the society in question, i.e., it

must be perceived as a group by society. Matter of W-G-R-, 26 I. & N. Dec. 208,

210–12 (BIA 2014). Apart from social distinction, a purported social group lacks

particularity if the description of the group is too amorphous to allow members to

be recognized as a discrete class of people. See Matter of S-E-G-, 24 I. & N. Dec.

579, 584–85 (BIA 2008).

      Additionally, an alien is eligible for withholding of removal if removing him

or her to a country would threaten the alien’s life or freedom on account of race,

religion, nationality, membership in a particular social group, or political opinion.

INA § 241(b)(3), 8 U.S.C. § 1231(b)(3). The burden is on the alien to show a clear

probability of future persecution, meaning that it is “more likely than not” that he

or she will be persecuted or tortured if returned to his or her country. 

. The standard is more stringent than the “well-founded fear”

standard for asylum, and if an applicant is unable to meet the “well-founded fear”

standard of proof for asylum, he or she will be unable to meet the standard for


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withholding of removal. Amaya-Artunduaga v. U.S. Att’y Gen., 

,

1249 n.3 (11th Cir. 2006) (per curiam).

      Substantial evidence supports the BIA’s and IJ’s denial of asylum and

withholding of removal. First, Diaz-Hincapie did not suffer past persecution

because the threatening phone calls that he received from members of the former

paramilitary group the United Self-Defense Forces of Colombia (“AUC”) did not

rise to the level of persecution. 

. Second, substantial

evidence supports the finding that Diaz-Hincapie did not show that the former

AUC members’ interest in him has survived his more than eight year absence from

Colombia and the AUC’s 2006 demobilization. See 

Third, Diaz-

Hincapie failed to show that the evidence compels the conclusion that the

persecution he fears is based on his political opinion or his membership in a

particular social group. Diaz-Hincapie has not shown specific facts to demonstrate

that the AUC’s interest in him is based on his political opinion or family

membership, rather than his refusal to pay funds that the AUC demanded. See

. Fourth, the agency did not err in determining that the

“social group” proposed by Diaz-Hincapie, a family that runs a successful business

and openly opposed the AUC, is not a “particular social group” for purposes of the

INA because Diaz-Hincapie presented no evidence that his proposed group is

socially distinct within Colombia. See Matter of W-G-R-, 26 I. & N. Dec. at 212.


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      Finally, because Diaz-Hincapie failed to carry his burden as to asylum, he

necessarily failed to carry the higher burden required to qualify for withholding of

removal. See 

n.3. Accordingly, because the

record does not compel reversal of the agency’s determination that Diaz-Hincapie

failed to meet his burden of establishing his eligibility for asylum or withholding of

removal, we deny the petition for review.

      PETITION DENIED.




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