Submitted: February 15, 2018
Petition for Review of an Order of the Board of Immigration
LOKEN, BENTON, and ERICKSON, Circuit Judges.
BENTON, Circuit Judge.
government began removal proceedings against Carlos A.
Mayorga-Rosa, a Guatemalan citizen who entered the United
States illegally. He sought asylum, withholding of removal,
and protection under the Convention Against Torture. The
immigration judge denied relief. The Board of Immigration
Appeals dismissed his appeal. Having jurisdiction under 8
U.S.C. § 1252, this court denies the petition for
testified that in 2010, he refused Freddie Rivera's
request to distribute drugs in the United States.
Mayorga-Rosa then talked to a man named Rafael about his
conversation with Rivera. Rafael later told Rivera that
Mayorga-Rosa had discussed Rivera's request. Mayorga-Rosa
claims that due to this, Rivera had Mayorga-Rosa's cousin
murdered. The murder happened in 2013, two weeks after his
cousin-also known as "Carlos Mayorga"-returned to
Guatemala from the United States. Mayorga-Rosa believes he
was the intended target of the murder, and that his cousin
was mistakenly killed because they went by the same name. He
testified he is afraid to return to Guatemala because Rivera
might kill him.
be eligible for asylum, an applicant must show that she is
unable or unwilling to return to her country of origin
'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.'" Marroquin-Ochoma v. Holder, 574
F.3d 574, 577 (8th Cir. 2009), quoting 8 U.S.C.
§ 1101(a)(42)(A). "An alien is eligible for
withholding of removal upon showing a clear probability that
his 'life or freedom would be threatened in that country
because of [his] race, religion, nationality, membership in a
particular social group, or political opinion.'"
Quinonez-Perez v. Holder, 635 F.3d 342, 345 (8th
Cir. 2011) (alteration in original), quoting 8
U.S.C. § 1231(b)(3)(A). "The clear probability
standard for withholding of removal is more onerous than the
well-founded fear standard for asylum." Malonga v.
Mukasey, 546 F.3d 546, 551 (8th Cir. 2008).
argues that he has a well-founded fear of persecution based
on his membership in a particular social group. He did not,
however, propose a group. The immigration judge
"infer[red] that the social group relates to refusal to
participate in drug trafficking and speaking out of turn
about a solicitation to become involved in drug
trafficking." The immigration judge concluded this group
As the case law has held concerning gangs, fear of gangs,
fear of gang recruitment, individuals returning from the
United States who may be perceived as wealthy, people who
fear gangs because of family members who are gang members or
former gang members, and a host of other situations involving
gang and gang violence, do not constitute particular social
BIA, Mayorga-Rosa contended that the immigration judge did
not allow closing arguments, when he planned to propose a
group. The BIA explained that Mayorga-Rosa "had an
obligation to present his proposed social group" to the
immigration judge, and he did "not have a legal right to
present a closing argument and should not have waited until
the end of the hearing to designate a social group."
review questions of law de novo, and we review the
agency's factual determinations under the substantial
evidence standard, reversing only where a petitioner
demonstrates that the evidence was so compelling that no
reasonable fact finder could fail to find in favor of the
petitioner." De Castro-Gutierrez v. Holder, 713
F.3d 375, 379 (8th Cir. 2013) (citation and internal
quotation marks omitted). "This court reviews the
BIA's decision as the final agency action, but to the
extent the BIA adopts the findings of the IJ, this court
reviews those findings as part of the final agency
action." R.K.N. v. Holder, 701 F.3d 535, 537
(8th Cir. 2012).
argues that the BIA should have required the immigration
judge to "seek clarification" about the social
group. He relies on the BIA's decision in Matter of
W-Y-C- & H-O-B-, 27 I&N Dec. 189 (BIA 2018).
There, the BIA described when an immigration judge must