United States Court of Appeals
                     For the First Circuit


No. 23-2097

 LUIS EFRAIN VARGAS-SALAZAR; WILMA JEANETH VARGAS-LASSO; M.V.V.,

                          Petitioners,

                               v.

      MERRICK B. GARLAND, United States Attorney General,

                           Respondent.


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


                             Before

                  Gelpí, Lynch, and Montecalvo,
                         Circuit Judges.


     Kevin P. MacMurray and MacMurray & Associates on brief for
petitioner.
     Thankful T. Vanderstar, Senior Trial Attorney, Bryan M.
Boynton, Principal Deputy Assistant General, and Aimee J.
Carmichael, Acting Assistant Director, Office of Immigration
Litigation, U.S. Department of Justice, on brief for respondent.


                        October 17, 2024
           LYNCH, Circuit Judge.             Luis Efrain Vargas-Salazar and

his   derivative      beneficiaries          --   his           wife   Wilma   Jeaneth

Vargas-Lasso, and their son Maykel Eliab Vargas-Vargas -- natives

of Ecuador, petition for review of the Board of Immigration Appeals

("BIA") order affirming the Immigration Judge's ("IJ") denial of

their applications for asylum.           Vargas-Salazar also petitions the

denial of his application for withholding of removal. See 

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

           The BIA upheld the IJ's denial of relief, finding, inter

alia, that the petitioner failed to satisfy the requirements for

asylum   and   withholding    for      removal        on   two     grounds:    (1)    the

petitioner     had   not   shown   harm      rising        to    the   level   of    past

persecution and (2) also had not shown the required nexus between

his asserted harm and particular social groups.

           Because substantial evidence supports the BIA's finding

that the petitioner failed to show harm rising to the level of

past persecution and any well-founded fear of future persecution

was not on account of a protected ground, that suffices to deny

the petition for review.

                                        I.

           The petitioner, his wife, and son entered the United

States without inspection on June 28, 2021, and were served with

Notices to Appear on September 27, 2021, charging them with

removability    pursuant     to    

(a)(6)(A)(i).             They

                                       - 2 -
conceded   removability     through     counsel    on    March 3,     2022.   On

March 17, 2022, the petitioner1 filed an application for asylum,

withholding   of    removal,    and    protection       under   the   Convention

Against Torture ("CAT"), naming his wife and child as derivative

beneficiaries. The IJ held a hearing on the application on May 25,

2023. The petitioner, represented by counsel, was the sole witness

to testify.

           The     IJ   found   the    following    facts,      accepting     the

petitioner's testimony as credible.           Around 2020, the petitioner

joined or formed a taxi company with his cousin and about 30

coworkers in Quito, Ecuador.          Sometime in 2020, five members of a

gang called "the Teachers" (in English) arrived at the company

with pistols and ordered Vargas-Salazar's manager to pay three

thousand dollars or risk losing "the car or [his] life or something

like that."      The manager and the company decided to pay the sum

and the extortion attempts temporarily stopped.

           Some time passed before members of the same gang made a

second extortion attempt. This time, the extortion attempt was

accompanied by death threats to the petitioner and his family and



     1     We refer to Vargas-Salazar as the "petitioner."
          Vargas-Lasso and Vargas-Vargas are not eligible for
withholding of removal or protection under the Convention Against
Torture because these forms of relief do not carry derivative
benefits and they did not file separate applications. See Mariko
v. Holder, 

, 3 n.1 (1st Cir. 2011).


                                      - 3 -
language targeting the petitioner as an indigenous person.               The

petitioner and his company's workers decided not to pay this

extortion demand.    Sometime thereafter, the same five gang members

who made the first extortion attempt initiated a fight with and

made accompanying death threats to the petitioner, his cousin, and

his coworkers while out in a public place.             The petitioner, his

cousin, and other company members fought back, and the petitioner

was injured on the top of his head. Police were called and arrested

the   petitioner's   cousin   but   none    of   the   gang   members.   The

petitioner did not testify that the gang members had pistols during

the altercation.

           The petitioner went to a community clinic and received

stitches on his head.    He has a permanent scar at the injury site.

The petitioner did not testify that he received medical treatment

for his bruises and strikes from the fight.             The petitioner and

his family made plans to come to the United States immediately

after the physical altercation and arrived in the United States

shortly thereafter.

           In denying relief, the IJ held that "[the] injuries and

threats that the [petitioner] suffered individually or combined

together . . . [do] not rise to the level of past harm in this

case."    The IJ explained that "[t]he physical harm that the

[petitioner] suffered was treated with a brief visit to the local

clinic and did not further require any hospitalization or enduring


                                    - 4 -
debilitation."   "The threats that [the petitioner] received from

the gang members on himself and his family, while distressing,

also [did] not rise to the level of past harm because the threats

in this case were not so menacing as to cause significant actual

suffering or harm[.]" The IJ also noted the petitioner's testimony

that he had not "received any further threats or communications

from th[e] gang members" after the second altercation and that

"the gang members target other taxi companies because they are

seen as having the type of money to be able to pay the extortion."

The IJ found that the "serious threat and the injuries to the

[petitioner] were the direct result of the unpaid extortion demands

that the gang made on the [petitioner's] company the second time."

          The IJ separately addressed the petitioner's claim that

he had been persecuted on account of being an "indigenous male"

and he and his family had been persecuted as being "members of the

Vargas nuclear family" and found the petitioner had not established

nexus between the enumerated grounds and the harm he had suffered.

The IJ found that "there's insufficient evidence on this record to

support that the gang's targeting of [the petitioner] and their

efforts to extort money from [the petitioner] was on account of

his ethnicity or his membership to his family member, nuclear

family group, or his race, or any of the other protected grounds

as enumerated by the [petitioner] in this case," and so the




                              - 5 -
petitioner      and    his   family     "did    not    meet     their    burden    of

establishing a well-founded fear of future persecution."

              The IJ also denied the petitioner's application for

withholding of removal, as he had not met its higher bar.                    The IJ

denied his claim for protection under the CAT because he had shown

neither that he had ever been, nor that he was likely to, if

returned to Ecuador, be "detained or tortured by any governmental

official acting under the color of law."

              The BIA affirmed. 2       It adopted the IJ's findings of fact

and cited to this Court's decisions.                    The BIA "uph[e]ld the

Immigration Judge's conclusion that the [petitioner] has not shown

that he suffered harm severe enough to constitute persecution under

the   INA."      It   reasoned    that,    under      First    Circuit   case     law,

"[u]nfulfilled        threats    only    demonstrate      past    persecution      in

extreme cases, where the threat was 'so menacing as to cause

significant actual suffering or harm'" (quoting Touch v. Holder,

 (1st Cir. 2009)).               Here, the petitioner had not

shown that the threats caused such harm.                      In support, the BIA



      2   As for the petitioner's claim for protection under the
CAT, the BIA found it waived.     We agree with the BIA that the
petitioner waived this claim.      He could not, and does not,
challenge any determination of that claim on appeal because it is
unexhausted. See Singh v. Garland, 

 (1st Cir.
2023) ("[W]e consistently have held that arguments not made before
the BIA may not make their debut in a petition for judicial review
of the BIA's final order." (quoting Gomez-Abrego v. Garland, 

 (1st Cir. 2022))).


                                        - 6 -
emphasized that "the [petitioner] did not claim . . . that the

gang members had weapons during the altercation" nor did he

"testify that he required medical treatment other than stitches."

The BIA also upheld the IJ's "finding that the [petitioner] did

not show that the harm that he suffered and that he fears in

Ecuador was or would be on account of a protected basis under the

INA."3   This timely petition for review followed.

                                II.

           We apply the deferential "substantial evidence standard"

to the IJ's factual findings, which "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



     3    The petitioner argues that the BIA erred in applying the
incorrect standard in its mixed motive analysis, but we do not
address this argument because our decision does not rely on the
BIA's mixed motive analysis. To the extent that the petitioner is
trying to make the broader argument that the BIA applied the wrong
standard in reviewing the IJ's nexus conclusion, we think that is
a misreading of the BIA opinion, and, in any event, the petitioner
provides no support for its preferred interpretation of the
opinion. The BIA decision starts with this correct language and
citation: "We review the Immigration Judge's factual findings for
clear error, including findings as to the credibility of testimony.
We review questions of law, discretion, and judgment and all other
issues in appeals from decisions of Immigration Judges de novo.
See 

.l(d)(3)." The BIA also added a parenthetical
"stating that the persecutor's actual motive is a question of
fact," citing Matter of N-M-, 

 (BIA 2011),
when applying the clear error standard within its nexus discussion.
The BIA correctly referred to the clear error standard in reviewing
the IJ's findings of fact underlying its nexus determination.


                               - 7 -
original) (quoting Mazariegos-Paiz v. Holder, 

 (1st

Cir. 2013)); see also INS v. Elias-Zacarias, 

, 481 n.1

(1992) ("To reverse the BIA finding we must find that the evidence

not only supports that conclusion, but compels it[.]").          We review

the BIA's conclusions of law de novo.        Romilus v. Ashcroft, 

 (1st Cir. 2004).

          To succeed on an asylum application, a petitioner must

"demonstrate a well-founded fear of persecution" and that fear

must be "'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).         "This burden can

be met with 'proof of past persecution, which creates a rebuttable

presumption of a well-founded fear of future persecution.'"          Paiz-

Morales, 

 (quoting Singh, 

).

          Substantial evidence supports the IJ and BIA's finding

that the petitioner had not proven past persecution.        A showing of

persecution requires more than "unpleasantness, harassment, and

even basic suffering."     Nelson v. INS, 

 (1st Cir.

2000).   Unfulfilled threats rarely prove past persecution unless

they are "so menacing as to cause significant actual suffering or

harm."   Touch, 

 (quoting Butt v. Keisler, 

 (1st Cir. 2007)); see also Santos Garcia v. Garland, 67


                                 - 8 -
F.4th 455, 461 (1st Cir. 2023) (holding that three extortion

attempts by armed individuals accompanied by death threats, one of

which resulted in injuries to Santos Garcia, were insufficient

proof of past persecution).   We noted in Santos Garcia that "there

[was] no finding that [] threats [against the petitioner] were

'credible' threats of death as opposed to threats intended to

frighten him into paying, especially given the lack of severity of

the one assault."   67 F.4th at 461.   Substantial evidence supports

the same result here.    Nor did the petitioner show the threats

caused "significant actual suffering or harm."    Touch, 

 (quoting Butt, 

).

          The petitioner emphasizes that he sustained an injury to

his head from the fight with the gang members.          This injury

required only outpatient medical treatment which does not indicate

persecution.   See Jinan Chen v. Lynch, 

 (1st Cir.

2016) (whether the petitioner required hospitalization for his

injuries "bears on the 'nature and extent' of his injuries and is

certainly 'relevant to the ultimate determination.'") (quoting

Vasili v. Holder, 

 (1st Cir. 2013)).

          The petitioner also argues that "the Board's assertion

that 'the [Petitioner] did not claim, however that the gang members

had weapons during the altercation' was made against the weight of

the record."   Substantial evidence supports the Board's assertion.

The petitioner's testimony was that the gang members were armed


                               - 9 -
"when the first extortion demand came in" (emphasis added), which

was directed at his manager rather than himself.            He did not so

testify regarding the second altercation, during which he received

a head injury requiring stitches.

           Because the petitioner failed to show past persecution,

he is not entitled to a presumption of well-founded fear of future

persecution.     See Paiz-Morales, 

.     To qualify for

asylum, any well-founded fear of future persecution must be "on

account of race, religion, nationality, membership in a particular

social group, or political opinion."     Varela-Chavarria v. Garland,

 (1st Cir. 2023) (emphasis added)(quoting 

(a)(42)(A)).     The record does not support such a showing

here.   The petitioner presented no evidence of future persecution

other than his previously discussed evidence of past persecution.

He does not point to any events from which a continuing threat

could be inferred on account of his membership in his claimed

particular social groups or on account of any other protected

ground.

           "A petitioner who cannot clear the lower hurdle for

asylum will necessarily fail to meet the higher bar for withholding

of   removal."     Paiz-Morales,   

.      Here,   the

petitioner's asylum claim fails, so his withholding of removal

claim fails as well.

           We deny the petition for review.


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