United States Court of Appeals For the First Circuit

No. 23-1036

EVELIN RAQUEL MONTOYA-LOPEZ,

Petitioner,

v.

MERRICK B. GARLAND, United States Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Barron, Chief Judge, Lynch and Gelpí, Circuit Judges.

Kevin P. MacMurray and MacMurray & Associates on brief for petitioner. Brian M. Boynton, Principal Deputy Assistant Attorney General, Civil Division, Brianne Whelan Cohen, Senior Litigation Counsel, Office of Immigration Litigation, and Christina R. Zeidan, Trial Attorney, Office of Immigration Litigation, Civil Division, U.S. Department of Justice, on brief for respondent.

August 21, 2023 LYNCH, Circuit Judge. Evelin Raquel Montoya-Lopez

petitions for review of a decision of the Board of Immigration

Appeals ("BIA") affirming the immigration judge's ("IJ") order

denying her application for asylum and withholding of removal under

sections 208(b)(1)(A) and 241(b)(3)(A) of the Immigration and

Nationality Act ("INA"),

(b)(1)(A), 1231(b)(3)(A),

as well as relief under the Convention Against Torture ("CAT").

In its decision, the BIA adopted and affirmed the IJ's

denial, agreeing that the petitioner "did not establish past

persecution or a well-founded fear of future persecution on account

of one of the protected grounds enumerated in section 101(a)(42)(A)

of the INA,

(a)(42)(A)." First, the IJ determined

that the petitioner had not demonstrated past persecution. Second,

the IJ determined that, although the petitioner had a well-founded

fear of future persecution, there was no nexus between this fear

and her status as a member of a particular social group, because

neither of the two social groups the petitioner alleged -- "family

members of business owners perceived as wealthy" and "people who

have fled the gangs instead of continuing to pay extortion" -- was

cognizable under the particular social group criteria.

Because substantial evidence supports the IJ's factual

determinations and the BIA committed no errors of law in its

ruling, we deny the petition for review of the petitioner's asylum

and withholding of removal claims. Having failed to raise issue

- 2 - with the BIA's denial of CAT relief on appeal to this court, the

petitioner has waived this claim, and we deny that portion of her

petition as well.

I.

A.

The petitioner is a 30-year-old native and citizen of El

Salvador. She came to the United States on or about March 13,

2016, without inspection by an immigration officer. The petitioner

is unmarried and has two children, ages six and four, who were

born in the United States. Her parents and three of her five

siblings live in El Salvador, while her remaining two siblings

live in the United States. She obtained her "bachillerato" -- the

equivalent of a U.S. high school degree -- in El Salvador.1 Prior

to her arrival in 2016, she had never before visited the United

States.

Before leaving for the United States on March 5, 2016,

the petitioner lived in San Miguel, El Salvador, with her sister

Delmy.2 Her parents lived, and still reside, in San Miguel as

1 For more information on the bachillerato degree program in El Salvador, see El Salvador, AACRAO Edge, https://www.aacrao.org/edge/country/el-salvador (last visited Aug. 17, 2023).

2 In her testimony before the IJ on September 15, 2020, the petitioner stated that she was living in San Miguel, El Salvador, before coming to the United States, though later during the same hearing she testified that she had lived in San Ramon, El Salvador, until March 2016, but moved to San Miguel to be closer

- 3 - well. She sold fruits and vegetables at a stand Delmy owned in a

busy market in San Miguel, where she earned $10 per day. She

worked Monday through Saturday from 1:00 am until 2:00 pm or 4:00

pm, mostly alone, as her sister spent much of this time purchasing

additional produce to sell the following day.

In her testimony before the IJ, the petitioner stated

that after she had been working at her sister's fruit and vegetable

stand for between one and two years3 and the business became more

profitable, members of the MS-13 gang began to extort money from

the business. In the first instance, two men she identified as

gang members based on their baggy clothing approached her while

she was selling produce alone and gave her a phone, telling her

someone wanted to speak to her. When she answered, the person on

the other end of the line, whom she believed to be in the MS-13

gang, stated that he was in jail, and that since he had observed

her making a "good profit" at the fruit and vegetable stand, she

and her sister needed to pay some "rent," or extortion money, of

to her sister's business. This inconsistent timeline has not been raised as an issue on appeal.

3 On direct examination during her hearing in front of the IJ, the petitioner stated that she had been working at her sister's fruit and vegetable stand for approximately one year when she was first approached by the gang members, but on cross-examination during the same hearing, she stated that she had been working at the stand for "like two years" when the extortion began.

- 4 - $25 per week.4 He then stated "you already know what can happen

to you" if the petitioner did not pay the extortion money, which

she understood to mean that they could kill her. Based on her

experience in El Salvador and her knowledge that "they kill a lot

of people over there because of that," she believed this threat.

When she told her sister about the threat, her sister told her to

pay the fee, "otherwise they will hurt us."

The petitioner began to make these extortion payments on

a weekly basis from the profits of the fruit and vegetable stand.

Because her sister was never present at the stand when they

visited, the gang members only ever collected money from the

petitioner. She believed that the gang had not extorted money

from the stand before she began working there because it had

originally been a smaller and not as profitable operation; once

Delmy had hired her and purchased more merchandise for the stand,

the gang assumed that the stand was making more money and decided

to seek extortion payments.

When business was poor, the petitioner and her sister

used the petitioner's personal earnings from working at the stand

to pay the extortion money. Over the course of one year, the

4 In her memorandum in support of her Form I-589 Application for Asylum, the petitioner stated that the original extortion amount was $5 per week, but before the IJ, she said that the original amount was $25 per week. The IJ adopted the $25 per week amount in her oral decision.

- 5 - extortion payments increased, from $25 to $35, $50, and then $75,

at which point the stand's profits were insufficient to continue

paying.5 In order to pay the extortion money, the petitioner's

sister began to buy fruits and vegetables for the stand on credit

and use the profits to pay the gang members instead.

The petitioner stated that she did not believe that the

police could protect her from the gang in El Salvador because the

gang members also threaten the police for protecting civilians.

Yet she also stated that she and her sister never reported the

extortion to the police because she believed that the police would

arrest and prosecute the gang members if she identified them, and

she was afraid that the gang members had infiltrated the police

and would take revenge against her and Delmy for reporting by

killing them.

In the final weeks before the petitioner left for the

United States, she informed the gang members that due to low sales

at the stand, she and her sister could not afford the extortion

5 In her memorandum in support of her asylum application, the petitioner stated that the original extortion amount was $5 per week, which increased to $10 and then, after a few months, $50 per week, but before the IJ, she said that the original amount was $25 per week, which increased to $35, then $50, and finally $75. The IJ adopted the starting point of $25 per week and subsequent escalations in her oral decision. Additionally, before the IJ, the petitioner stated that the amounts increased over one year, but in the affidavit attached to her asylum application she stated that "[t]he threats began approximately seven months before I left El Salvador."

- 6 - payments, to which the gang members stated that they just wanted

the payments and did not care whether the stand produced enough

profits to provide them. She stated that she ultimately left El

Salvador out of fear that her sister could not afford to pay the

extortion money and the petitioner would be held responsible as

the individual who had been present at the stand delivering the

payments. She believed that by leaving El Salvador, rather than

continuing to pay extortion, she put herself in danger from the

gang, as she could recognize the gang members and identify them as

extortioners to other people and the police.

After the petitioner left El Salvador, her sister Delmy

remained in El Salvador and continued to make extortion payments

to the gang members. At the time of her hearing in front of the

IJ, the petitioner had not spoken to her sister in over a year.

The last she had heard, Delmy had closed the fruit and vegetable

stand, though she did not know with certainty whether Delmy was

still operating the stand. She also said that in their last

conversation, Delmy had told her that the gang members had

continued to charge the $75 per week extortion and she planned on

filing a police report against them, but the petitioner learned

from her mother that ultimately Delmy did not file a report. The

petitioner's mother also stated during this conversation that

Delmy wanted to go to Nicaragua or Panama.

- 7 - The petitioner testified that she is afraid to return to

El Salvador and claimed she does not have a place where she can

live there outside of San Miguel. She had previously lived in San

Ramon, Cuscatlán, El Salvador, a three-to-four hour bus ride from

San Miguel, with her sister, but claimed that she could not go

back there either because it is "a very dangerous place as well."

No one ever threatened or harmed her personally in San Ramon. She

believed gang members had killed several of her family members

there, including her cousin and her cousin's child, another cousin,

and a third cousin's husband. She testified that no arrests had

been made regarding those deaths, and her knowledge of the

perpetrators was based on reports from family members and is

uncorroborated by other evidence. She did not know why any of her

relatives were killed.

Before the IJ, the petitioner continued testifying that

she does not know whether the gang members asked about her or

attempted to look for her after she left El Salvador.6 She did

not attempt to relocate within El Salvador before leaving for the

6 The petitioner stated she was not sure whether the MS- 13 gang members had asked about her, but in the affidavit attached to her asylum application, she stated, "The MS-13 has asked for me, and my sister lied and told them that I was no longer working there because I had messed up the business and would no longer be working there. She did this because if she told them that I had come to the United States, she was afraid that the MS-13 would try to find me and continue extorting me." The IJ did not mention this discrepancy in her opinion, and the petitioner did not raise it as an issue on appeal.

- 8 - United States. The petitioner had not been physically harmed by

the gang members at the time she left El Salvador. When asked

whether, to her knowledge, Delmy had been threatened or physically

harmed since the petitioner left El Salvador, the petitioner stated

that the last thing Delmy had told her was that she intended to

file a police report because of continued extortion and that sales

were bad. The petitioner had told her to be careful.

B.

The petitioner was placed into removal proceedings by

the Department of Homeland Security through a Notice to Appear

filed on August 5, 2016, charging her with removability pursuant

to

(a)(6)(A)(i). She filed an application for

asylum on March 7, 2017. At a hearing before the immigration court

on December 6, 2017, the IJ found her removable and directed El

Salvador as the country for removal.

At her 2020 hearing before the IJ, the petitioner was

represented by counsel. She testified as the sole witness and

submitted a written declaration in support of her application.

She claimed that although she had told her family members about

the extortion she experienced in El Salvador, none of her family

members in El Salvador provided statements in support out of fear

of retaliation against them if they spoke against the gang members,

and she was not aware that she could provide statements from family

members located outside of El Salvador. The IJ found the

- 9 - petitioner to be a credible witness.

After hearing her testimony, the IJ denied the

petitioner's application for asylum, withholding of removal, and

CAT relief, finding that (1) the petitioner's experiences in El

Salvador fell below the level of harm necessary to establish past

persecution and (2) although the petitioner had demonstrated a

well-founded fear of future persecution, she had not met the

criteria for asylum or withholding of removal regarding the two

separate particular social groups she claimed. The IJ determined

that the petitioner's first claimed group, "family members of a

business owner perceived as wealthy," was not a valid particular

social group because it did not satisfy the requirement of

immutability. The IJ also determined that the petitioner's second

claimed group, "people who have fled gangs instead of continuing

to pay extortion," was not a valid particular social group because

it failed the requirement of being perceived as a distinct group

within El Salvador. The BIA adopted the IJ's findings of fact and

affirmed its legal conclusions; it held that the petitioner's

second claimed group failed because it was "based purely on fear

of crime and economic extortion."

This timely petition for review followed.

II.

We review the BIA's conclusions of law de novo but

provide "some deference to the agency's expertise in interpreting

- 10 - both the statutes that govern its operations and its own

implementing regulations." Cabrera v. Lynch,

(1st Cir. 2015). Where, as here, the BIA adopted the IJ's findings

of fact, "we review both the IJ's and the BIA's decisions as a

unit." Mazariegos-Paiz v. Holder,

(1st Cir. 2013)

(quoting Chen v. Holder,

(1st Cir. 2012)); see

also Camara v. Holder,

(1st Cir. 2013). We use

the "substantial evidence standard," a deferential standard that

"requires us to accept the [IJ's] factual findings . . . unless

the record is such as to compel a reasonable factfinder to reach

a contrary conclusion." Dorce v. Garland,

(1st

Cir. 2022) (omission in original) (quoting Mazariegos-Paiz,

); see also INS v. Elias-Zacarias,

(1992). "That the record supports a conclusion contrary to that

reached by the BIA [or IJ] is not enough to warrant upsetting the

BIA's [or IJ's] view of the matter." Lopez de Hincapie v.

Gonzales,

(1st Cir. 2007); see also Arkansas v.

Oklahoma,

(1992) (holding that when using the

substantial evidence standard, courts of appeals "should not

supplant [an] agency’s findings merely by identifying alternative

findings that could be supported by substantial evidence").

- 11 - III.

A.

We begin with the petitioner's asylum application. To

succeed, the petitioner bears the burden to "'demonstrate a well-

founded fear of persecution on one of five protected grounds' --

race, religion, nationality, political opinion or membership in a

particular social group." Paiz-Morales v. Lynch,

(1st Cir. 2015) (quoting Singh v. Holder,

(1st

Cir. 2014)); see

(a)(42), 1158(b)(1)(B)(i); see

also Elias-Zacarias,

. The petitioner "'can

meet this burden through proof of past persecution, which creates

a rebuttable presumption of a well-founded fear of future

persecution' or by demonstrating 'a well-founded fear of

persecution through an offer of specific proof that [her] fear is

both subjectively genuine and objectively reasonable.'" Chen v.

Lynch,

(1st Cir. 2016) (quoting Singh,

). The petitioner must also demonstrate that one of the five

protected grounds is at least "'one central reason' for the harm

alleged." Barnica-Lopez v. Garland,

(1st Cir.

2023) (quoting Singh v. Mukasey,

(1st Cir. 2008));

see

(b)(1)(B)(i).

1.

The IJ and BIA each concluded that the petitioner's

evidence of threats and extortion were insufficient to constitute

- 12 - past persecution. We find this conclusion is supported by

substantial evidence and affirm.

For harm to qualify as persecution, it "must add up to

more than ordinary harassment, mistreatment, or suffering." Lopez

de Hincapie,

. "We have long held that 'credible,

specific threats can amount to persecution if they are severe

enough' -- particularly if they are death threats." Aguilar-

Escoto v. Garland,

(1st Cir. 2023) (quoting Javed

v. Holder,

(1st Cir. 2013)); see also Un v.

Gonzales,

(1st Cir. 2005) ("[C]redible verbal

death threats may fall within the meaning of 'persecution.'"). We

have further recognized that "the addition of physical violence,

although not required, makes a threat more likely to constitute"

persecution, Javed,

, though "hollow

threats, . . . without more, certainly do not compel a finding of

past persecution." Moreno v. Holder,

(1st Cir.

2014) (omission in original) (emphasis added) (quoting Ang v.

Gonzales,

(1st Cir. 2005)).

Here, the IJ concluded that the petitioner did not meet

her burden of demonstrating that the threats she received

constituted past persecution. Specifically, the IJ stated that

the threats needed to be "more specific" than those shown by the

petitioner and that the petitioner did not "provide enough evidence

about specific threats." In so concluding, the IJ cited to our

- 13 - decision in Javed where we distinguished between, on the one hand,

"a single, vague threat or even a number of non-specific threats"

and, on the other, "credible, specific threats," where the latter

are more likely to constitute persecution.

.

Substantial evidence supports the IJ's determination that the

threats the petitioner received lacked sufficient specificity to

rise to the level of persecution.

The petitioner was threatened over the course of a year

while working at her sister's business by gang members who demanded

extortion payments. The weekly payments began at $25 per week and

increased to $75 per week, at which point the petitioner and her

sister could no longer afford them despite the petitioner

forfeiting her personal earnings and her sister buying produce on

credit and using the stand's income to pay extortion money instead.

Based on her experience living in El Salvador and her initial

conversation with her extortioners, the petitioner believed that

if she did not make these payments, she would be killed by the

gang members.

Yet, the threats that the petitioner received were of a

general nature. There were no displays of force or violence to

accompany the threats, and the petitioner was never physically

harmed by the gang during her time in El Salvador. Although she

mentioned that the extortion continued after she left, she did not

provide evidence that anyone had tried to threaten or harm her

- 14 - sister after the petitioner left El Salvador. The petitioner does

not know whether the gang members have asked about her or attempted

to look for her after the petitioner left El Salvador. She

believed that other relatives had been killed by gangs in El

Salvador, but did not know why, and did not provide evidence that

their deaths were related to the threats she received.

Viewing the evidence of the threats the petitioner

received and the surrounding circumstances, we find that the IJ's

conclusions that the threats were not sufficiently specific or

credible to rise to the level of persecution to be supported by

substantial evidence. Even taking the petitioner's claims as true,

we cannot say that the record "compel[s] a reasonable factfinder

to reach a contrary conclusion." Dorce,

.

The petitioner also argued that the economic harm she

suffered was sufficient to constitute past persecution. While, as

the petitioner notes, extortion alone may constitute persecution,

to reach this level the extortion must constitute "deliberate

imposition of severe economic disadvantage or the deprivation of

liberty, food, housing, employment, or other essentials of life."

Kadri v. Mukasey,

(1st Cir. 2008) (quoting Matter

of T-Z-,

(BIA 2007)); see also Matter of

T-Z-,

("[E]conomic difficulties must be

above and beyond those generally shared by others in the country

of origin."). For example, in Kadri, we held that the petitioner

- 15 - "may [have] be[en] able to sustain a claim for economic

persecution" under this standard because he was ostracized from

the medical profession in Indonesia and unable to earn a living as

a doctor due to his sexual orientation. 543 F.3d at 22.

Here, the petitioner has failed to provide evidence of

such hardship. In her testimony, she stated that making the

extortion payments deprived her and her sister of some of the

profits of the fruit and vegetable stand and that on occasion she

paid from her personal earnings when profits were low. She did

not testify that making these extortion payments imposed such

difficulty as to deprive her of her liberty, threaten her survival,

or bar her from employment.

On these facts we cannot say the record compels a finding

of past persecution.7

2.

The IJ and BIA next concluded that the petitioner, having

failed to prove she experienced past persecution, also failed to

demonstrate future persecution on the basis of a protected ground

because neither of the particular social groups she claimed --

7 The petitioner argues that the IJ erred by not addressing whether the petitioner's proffered particular social groups were cognizable or whether the petitioner had established a nexus between these groups and the harm she had suffered after finding her experiences failed to constitute past persecution. She asks that we remand her matter for re-adjudication on these questions. Because we find that the agency did not err in its finding of no past persecution, this argument is irrelevant.

- 16 - "family members of business owners perceived as wealthy" and

"people who have fled the gangs instead of continuing to pay

extortion" -- were legally cognizable.

"[A]n applicant for asylum or withholding of removal

based on membership in a particular social group must establish

that 'the group is (1) composed of members who share a common

immutable characteristic, (2) defined with particularity, and (3)

socially distinct within the society in question.'" Hernandez-

Martinez v. Garland,

(1st Cir. 2023) (quoting

Matter of M-E-V-G-,

(BIA 2014)). "Our

circuit has . . . 'accepted'" this three-part test.

(quoting

Mayorga-Vidal v. Holder,

(1st Cir. 2012)). "We

must defer to the BIA's interpretation of the term particular

social group as long as it is reasonable . . . [i.e.,] based on a

permissible construction of the statute."

(internal

quotation marks omitted).

a.

First, the IJ and BIA concluded that "family members of

business owners perceived as wealthy" was not cognizable as a

particular social group because it failed to meet the requirement

of immutability. "Immutability" with regard to a particular social

group means that all members "share a common, immutable

characteristic." Scatambuli v. Holder,

(1st Cir.

2009) (quoting In Re C-A-,

(BIA 2006)).

- 17 - This characteristic "must be one that members of the group either

cannot change, or should not be required to change, because it is

fundamental to their individual identities or consciences." In Re

C-A-,

.

Here, the petitioner had not been in contact with her

sister for more than a year before her merits hearing. The IJ was

"unable to find that [the petitioner] . . . ha[d] a well-founded

fear of future persecution as a family member of a business owner

perceived as wealthy" because the petitioner did not know whether

her sister Delmy was even still a business owner in El Salvador.

The BIA also concluded "there [wa]s no indication the claimed

group, or the business they once shared, continued to exist at the

time of the merits hearing." It thus held that the petitioner's

"past membership [in] this group would not likely be immutable nor

would she have a well[-]founded fear of persecution related to

this group upon return."

The petitioner argues that there is also "no definitive

indication that [her sister] is no longer a business owner," but

in an asylum proceeding the petitioner bears the burden of proving

a nexus between her harm and a legally cognizable particular social

group. See Paiz-Morales,

; Hernandez-Martinez,

.

The thrust of the petitioner's attack on the decision

below is that she has met that burden and that the agency erred in

- 18 - concluding otherwise insofar as it concluded that the claimed group

is not defined by an immutable characteristic. The petitioner

contends in support of her position that "a shared past experience"

may be an immutable characteristic, Matter of Acosta,

(BIA 1985), and that she and other family members

share the past experience of having been related to a business

owner. The petitioner further contends that regardless of whether

her sister is still a business owner, it is very likely that the

petitioner's persecutors will continue to impute her membership in

this particular social group, even if the perception does not

reflect reality.

But, as the BIA correctly noted, "[a] particular social

group must not be amorphous, overbroad, diffuse, or subjective,

and not every 'immutable characteristic' is sufficiently precise

to define a particular social group." Thus, even if we were to

assume that the claimed trait of a familial relation to a business

owner is immutable, a proposed social group such as the one

petitioner proposes -- that encompasses all family members of all

business owners, past or present, who were perceived as wealthy at

one point in time -- fails to meet this standard because it

represents a "large, diffuse portion of society with

characteristics simply too amorphous to readily distinguish the

boundaries of membership." Mayorga-Vidal,

(citing

Matter of S-E-G-,

(BIA 2008)). Thus, the

- 19 - petitioner's arguments with respect to this purported social group

fail.

b.

Second, the IJ concluded that the petitioner's other

alleged group, "people who have fled the gangs instead of

continuing to pay extortion," was not cognizable because the

petitioner had failed to submit sufficient evidence showing it "is

a discr[ete] group perceived by Salvadoran society as a group."

The BIA alternatively held that this group fails to meet the

criteria for a particular social group because "it is based purely

on fear of crime and economic extortion," and "[e]xposure to

general conditions of crime and violence does not constitute

persecution (past or future) for asylum purposes."

Although the petitioner challenges the BIA's rejection

of this group on the ground that it is not circular because it is

based on a shared immutable characteristic of a past experience,

the BIA also separately adopted the IJ's reasoning for denying her

claim of future persecution. And, in so ruling, the IJ gave as an

independent reason for concluding that this asserted group is not

cognizable that it lacks social distinctiveness. Thus, to succeed

in showing the group is cognizable, the petitioner must show not

only that the BIA's immutability analysis is mistaken but also

that the IJ erred in finding that the group lacks social

distinctiveness, as either ground for deeming the claimed group

- 20 - not to be cognizable suffices to preclude the group from being so

deemed. And while the petitioner contends that the IJ did err in

so finding, we disagree.

The petitioner argues that the IJ erred because reports

on country conditions in El Salvador showing that persons who

refuse to pay extortion are at an "increased risk of violent

retribution" provide evidence that "Salvadoran society perceives

members of this proposed group as a distinct group."8 She notes

also that the Salvadoran Legislative Assembly revised a counter-

terrorism criminal statute to impose criminal penalties on

individuals who "solicit[], demand[], offer[], promote[],

formulate[], negotiate[], convene[], or enter[] into a non-

persecution agreement" with gangs, which she claims includes the

kind of extortion agreement to which she was subjected, and argues

the imposition of laws meant to protect against extortion means

"people who have fled the gangs instead of continuing to pay

extortion" are viewed as a discrete group within El Salvador.

The petitioner's argument fails because this evidence,

which demonstrates that gang members who use extortion tactics are

8 The petitioner specifically cited a report from Human Rights Watch on El Salvador in 2019 which states "Gangs kill, disappear, rape, or displace, those who resist. These conditions have resulted in internal and cross-border displacement." She also stated, "studies estimate that nearly 300,000 Salvadorans were displaced in 2017 as a result of gang threats, violence, and extortion."

- 21 - a recognized threat in El Salvador and that individuals who resist

them face greater risk, focuses on her visibility to her alleged

persecutors, rather than the visibility of her alleged particular

social group to society. For the social distinction requirement,

"[t]he relevant inquiry is whether the social group is visible in

the society, not whether the alien herself is visible to the

alleged persecutors." Mendez-Barrera v. Holder,

(1st Cir. 2010). Further, we have repeatedly held that alleged

particular social groups based on resistance to gang pressure and

extortion attempts do not meet the social distinctiveness

requirement. See, e.g., Perez-Trujillo v. Garland,

(1st Cir. 2021) (finding "young, male, Salvadoran students who are

forcibly recruited into gangs, refuse gang orders, and desert the

gang" lacked social distinction); Mendez-Barrera,

(finding the group "young women recruited by gang members who

resist such recruitment" is not socially visible nor generally

recognized in the community (El Salvador) as a cohesive group).

Because the BIA made no error of law in interpreting the

statute and the IJ's factual findings related to the application

of these factors are supported by substantial evidence, we deny

the petition for review.

B.

The petitioner also asserted a claim for withholding of

removal under

(b)(3). "To petition successfully

- 22 - for withholding of removal, an alien must show that, if returned

to h[er] homeland, [s]he would more likely than not be subjected

to persecution on account of a statutorily protected ground."

Amouri v. Holder,

(1st Cir. 2009). Although based

upon the same requirements, "withholding of removal 'imposes a

more stringent burden of proof on an alien than does a counterpart

claim for asylum.'" Rivera-Coca v. Lynch,

(1st

Cir. 2016) (quoting Morgan v. Holder,

(1st Cir.

2011)). Because the BIA and IJ did not err when they concluded

that the petitioner had not suffered past persecution and that

neither of her alleged groups were cognizable for purposes of

asylum, it follows that they did not err when they concluded that

the petitioner did not meet her heavier burden for withholding of

removal. See, e.g., Hernandez-Martinez,

(applying

this logic).

C.

Although the petitioner originally entered a claim for

relief under the CAT before the IJ, who denied it, she did not

meaningfully challenge the IJ's denial on appeal before the BIA.

The BIA still affirmed the IJ's denial because the petitioner "did

not establish that it is more likely than not that she would be

subjected to torture in El Salvador by or with the acquiescence,

(including willful blindness) of a public official or other person

acting in an official capacity." By failing to raise any issue

- 23 - with that ruling on appeal before this court, the petitioner has

waived this claim. We deny any portion of the petition seeking

review of that part of the IJ and BIA decisions.

IV.

For the foregoing reasons, the petition for review of

the decision of the BIA is denied.

- 24 -