1 The Honorable Raymond C. Clevenger, III, Circuit Judge of the United States Court of Appeals for the Federa l Circuit, sitting by designation. 

## United States Court of Appeals
FOR THE EIGHTH CIRCUIT

___________ No. 10-3521

___________ Jose Rene Constanza, *
* Petitioner, * * Petition for Review v. * of an Order of the * Board of Immigration Appeals. Eric H. Holder, Jr., Attorney * General of the United States, * [PUBLISHED]
* Respondent. *

___________ Submitted: June 13, 2011 Filed: August 1, 2011

___________ Before COLLOTON, CLEVENGER, 1 and BENTON, Circuit Judges.

___________ PER CURIAM.
Jose Constanza, a native and citizen of El Salvador, petitions for review of an order of the Board of Immigration Appeals (BIA) that affirmed an immigration judge’s (IJ) denial of asylum, withholding of removal, and relie f under the Convention Against Torture (CAT). We deny the petition.-2- Constanza arrived in the United Stat es at Douglas, Arizona, on or about November 17, 1997. At the time he arrived, Constanza was not admitted or paroled after inspection by an immigration office r. Constanza was granted Temporary Protective Status in 2002. On Decembe r 2, 2009, Constan za was convicted of domestic assault by strangulati on and was placed on probation.

On February 2, 2010, the Department of Homeland Security (DHS) commenced removal proceedings against Constanza. The DHS filed a Notice to Appear charging Constanza with removability as: (1) an alien present without admission or parole pursuant to 8 U.S.C. § 1182(a)(6)(A)(I); and (2) an alien convi cted of a crime involving moral turpitude pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(I). Constanza admitted the first charge and conceded to removability on that ground, but denied the second charge. Based on the record of conviction, the IJ found Constanza removable on the second charge. Constanza, howe ver, applied for asylum, withholding of removal, and relief under CAT on the gr ound that he will be persecuted by Mara Salvatrucha (MS-13) gang members in El Salvador based on his membership in social groups defined as persons resistant to gang membership, persons who have returned from the United States and are perceived as affluent, and persons who fear harm to their families from gangs.

In support of his application, Constanza testified that he fears returning to El Salvador because of the gang violence in the country. Constanza also testified that his family had two encounters with gang violence before he left El Salvador. Specifically, his nephew was kidnapped and he ld for ransom in 1995, and his cousin was robbed and killed in 1996 by gang members. On June 16, 2010, the IJ issued a written decision denying Constanza’s applicati on. The IJ found Constanza reasonably credible, but determined that resistance to gang membership, affluence, and fearing harm from gangs do not constitu te particular social groups. Thus, the IJ concluded that Constanza’s fears of returning to El Salvador do not rise to the level of persecution for which a grant of asylum coul d be made. The IJ further concluded that-3- Constanza had not adequate ly demonstrated that he had a reasonable fear of persecution upon his return to El Salva dor for several reasons, including: (1) Constanza did not flee El Salvador because of gang violence, but left because he was unable to sufficiently support his family with the wages he earned in El Salvador; and (2) Constanza’s siblings and children continueto reside in El Salvador and have not been targeted by gang violence, even though Constanza was known to be in the United States. Having determined that Constanza did not meet the burden for a grant of asylum, the IJ determined that he had not met the higher burden for withholding of removal. The IJ also determined that Constanza failed to show the existence of changed or extraordinary circumstances regarding his failure to apply for asylum within the one-year time limit required by la w. Finally, the IJ found that Constanza had not demonstrated government acquiescence to the gang violence.

On administrative review, the BIA affi rmed the IJ’s decision and dismissed Constanza’s appeal. The BIA he ld that the IJ did not err in concluding that Constanza failed to meet his burden of proof on the time liness of his asylum application. After an independent analysis of the record, th e BIA agreed with the IJ’s finding that Constanza did not establis h past persecution or a well-founded fear of future persecution by gangs. The BIA further f ound Constanza’s articulated social groups too broad and indeterminate for immigrati on purposes. Thus, the BIA concluded that Constanza failed meet his burden of proof to justify asylum and withholding of removal. The BIA also concluded that C onstanza failed to meet his burden for CAT relief. The present appeal followed.

Where, as here, the BIA issues an independent decision without adopting the IJ’s conclusions, we review only the BI A decision. Chak Yiu Lui v. Holder , 600 F.3d 980, 983 (8th Cir. 2010). We lack jurisdicti on to review the BIA’s determination that Constanza’s asylum application wa s barred as untimely filed. See8 U.S.C. § 1158(a)(3); Chibwe v. Holder , 569 F.3d 818, 820 (8th Cir. 2009). We review the BIA’s determinations regarding withhol ding of removal and CAT relief under the2 On appeal, Constanza abandons his ar gument that he has a well-founded fear of persecution based on his membership inthe particular social group defined as “persons who have returned from the Unite d States and are perceived as affluent.” Accordingly, we do not address the argument in this opinion.

-4- substantial evidence standard . Khrystotodorov v. Mukasey , 551 F.3d 775, 781 (8th Cir. 2008). Because Constanza is removable as a “criminal alien,” our jurisdiction is limited to constitutional claims and ques tions of law. Mocevic v. Mukasey , 529 F.3d 814, 816 (8th Cir. 2008) (citing 8 U.S.C. §§ 1252(a)(2)(C) and (a)(2 )(D)). We review the BIA’s legal determinations de novo, giving substantial deference to its interpretation of statutes and regul ations. Davila-Mejia v. Mukasey , 531 F.3d 624, 627 (8th Cir. 2008).

An applicant is entitled to withholding of removal if he demonstrates, a “clear probability” that he will face persecution upon repatriation on account of one of five protected grounds, including membership in a social group. INS v. Stevic , 467 U.S. 407, 430 (1984); see 8 U.S.C. § 1231(b)(3)(A) (listing protected grounds). We have held that a “clear probability” of future persecution is an “‘extreme concept’ that involves the infliction or threat of death, to rture, or injury to one’s person or freedom, on account of a protected charact eristic.” Malonga v. Holder , 621 F.3d 757, 764 (8th Cir. 2010) (quoting Sholla v. Gonzales , 492 F.3d 946, 951 (8th Cir. 2007)).

Constanza avers that he is entitled to withholding of removal because he has a well-founded fear of persecution based on hi s membership in two particular social groups, defined as: (1) a family that e xperienced gang violence; and (2) persons resistant to gang violence. 2Membership in a particul ar social group “refer[s] to persons who hold an immutable characteristic , or common trait such as sex, color, kinship, or . . . shared past experiences.” Davila-Mejia , 531 F.3d at 628. Moreover, “[t]he group characteristic must be one ‘that the members of the group either cannot change, or should not be required to cha nge because it is fundamental to their individual identities and consciences.’” Id. (quoting Matter of Acosta , 19 I. & N. Dec.-5- 211, 233 (BIA 1985), overruled on other grounds by Matter of Mogharrabi , 19 I. & N. Dec. 439 (BIA 1987)). In addition, a social group requires sufficient particularity and visibility such that the group is perceive d as a cohesive group by society. See id. at 628-29.

After a careful review of the record, we agree with the BI A that Constanza’s articulations of the social groups to whic h he claims to belong are too broad to be perceived as social groups by society. Although MS-13 harmedConstanza’s nephew and cousin in 1995 and 1996, respectively, there is no evidence in the record indicating that the gang specifically targetedConstanza’s family as a group. Nor does the record demonstrate that MS-13 will target Constanza’s family in the future, especially given that Constanza’s siblings and children have conti nued to reside in El Salvador and have not been targeted by M S-13. Constanza’s family is no different from any other Salvadoran family that has experienced gang violence. Thus, Constanza’s family lacks the visibility and particularity required to constitute a social
group.

Further, we are persuaded by the BIA’s conclusion, as well as authority from other circuits, that “persons resistant to gang violence” are too diffuse to be recognized as a particular social group. See, e.g. , Matter of S-E-G- , 24 I. & N. Dec. 579, 588 (BIA 2008); Lizama v. Holder , 629 F.3d 440, 447 (4th Cir. 2011); Larios v. Holder , 608 F.3d 105, 109 (1st Cir. 2010); Lushaj v. Holder , 380 Fed. Appx. 41, 43 (2d Cir. 2010); Barrios v. Holder , 581 F.3d 849, 855 (9th Cir. 2009); cf. MarroquinOchoma v. Holder , 574 F.3d 574 (8th Cir. 2009) (resist ance to gang recruitment is not political opinion and, therefore, not a protected ground for withholding of removal). As a result, we conclude that Constanza has not established that the alleged acts of3 To the extent that Constanza argue s on appeal for the first time past persecution generally and a well-founded fear of future persecution based on political opinion, we are without jurisdiction to a ddress these claims because Constanza has failed to exhaust his administrativ e remedies. Sultani v. Gonzales , 455 F.3d 878, 884 (8th Cir. 2006) (“Failure to raise an issu e before the agency constitutes a failure to exhaust administrative remedies and deprives this court of jurisdiction to hear the matter.”).

-6- mistreatment by MS-13 occurre d because of his membership in a particular social
group. 3

Finally, Constanza’s petition alleges that he was improperly denied CAT relief because the government of El Salvador has failed to protect his family or address his complaints regarding MS-13 in a meaningful way. Constanza further alleges that the government of El Salvador ha s failed to bring to justi ce all members of MS-13 and, as a result, the threat of to rture exists for him country-wid e. Constanza’s allegations, however, amount to nothing more than challe nges to factual determinations, which we lack jurisdiction to review unde r 8 U.S.C. § 1252(a)(2)(D). See Lovan v. Holder , 574 F.3d 990, 998 (8th Cir. 2009); Mocevic , 529 F.3d at 817; Saintha v. Mukasey , 516 F.3d 243, 249-50 (4th Cir. 2008).

Accordingly, we deny the petition for review.

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