NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FRANCIS BLADIMIR AVILA-ALFARO,

Petitioner,

v.

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 22-2041

Agency No.

A206-689-534

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted April 12, 2024**

Pasadena, California

Before: SILER ***, GOULD, and BEA, Circuit Judges.

Francis Bladimir Avila-Alfaro, a native and citizen of El Salvador, petitions 

for review of a Board of Immigration Appeals (BIA) decision dismissing his appeal 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Eugene E. Siler, United States Circuit Judge for the 

Court of Appeals, 6th Circuit, sitting by designation.

FILED

APR 16 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 22-2041

from a decision by an Immigration Judge (IJ) denying his applications for asylum, 

withholding of removal, and protection under the Convention Against Torture

(CAT). We have jurisdiction under 8 U.S.C. § 1252 and we deny the petition.

“Where, as here, the BIA agrees with the IJ decision and also adds its own 

reasoning, we review the decision of the BIA and those parts of the IJ’s decision 

upon which it relies.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1027–28 (9th Cir. 

2019). We review de novo questions of law. Bringas-Rodriguez v. Sessions, 850 

F.3d 1051, 1059 (9th Cir. 2017) (en banc). We review factual findings for 

substantial evidence. Id. The substantial evidence standard requires that we reverse 

when, based on the record evidence, “any reasonable adjudicator would be 

compelled to conclude to the contrary.” Id. (quoting Zhi v. Holder, 751 F.3d 1088, 

1091 (9th Cir. 2014)).

1. The denials of Avila-Alfaro’s claims for asylum and withholding of 

removal are supported by substantial evidence. The harm suffered by Avila-Alfaro 

is serious. He was not physically harmed but was threatened with death. 

Nonetheless, the record does not compel the conclusion that the harm he suffered 

constitutes persecution. Death threats alone “constitute persecution in only a small 

category of cases, and only when the threats are so menacing as to cause significant 

actual suffering or harm.” Duran-Rodriguez, 918 F.3d at 1028 (internal quotation 

marks and citation omitted). Here, the fact that Avila-Alfaro did not experience an 
3 22-2041

in-person confrontation after he stopped making extortion payments undermines the 

credibility of the gang members’ prior threats. And although Avila-Alfaro made 

many extortion payments, he does not provide sufficient evidence to compel the 

conclusion that these payments constitute economic persecution. See Ming Xin He 

v. Holder, 749 F.3d 792, 796 (9th Cir. 2014) (defining economic persecution as 

interference with a petitioner’s livelihood).

The record also does not compel the conclusion that Avila-Alfaro was or 

would be persecuted in the future on account of a protected ground. “El Salvadoran 

commercial drivers” is not a cognizable particular social group. 1 Being a 

commercial driver is not an immutable characteristic that is “fundamental” to one’s 

identity. See Macedo Templos v. Wilkinson, 987 F.3d 877, 882–83 (9th Cir. 2021); 

cf. Plancarte Sauceda v. Garland, 23 F.4th 824, 834 (9th Cir. 2022) (being a licensed

1 Avila-Alfaro argues that Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018) (A-B- I), 

which was subsequently vacated in Matter of A-B-, 28 I. & N. Dec. 307 (A.G. 2021), 

precluded him from making arguments based on an alternative (and unstated)

particular social group because A-B- I “automatically dismissed any claims that 

revolved around domestic violence.” Avila-Alfaro misreads A-B- I. See 27 I. & N.

Dec. at 320 (stating that the decision does “not decide that violence inflicted by nongovernmental actors may never serve as the basis for an asylum or withholding 

application based on membership in a particular social group”). Avila-Alfaro’s 

argument was not “entirely foreclosed” at the time he filed applications for relief, 

and he makes no other arguments regarding an exception to the exhaustion 

requirement set forth in 8 U.S.C. § 1252(d)(1). Alvarado v. Holder, 759 F.3d 1121, 

1128 (9th Cir. 2014), overruled on other grounds by Santos-Zacaria v. Garland, 598 

U.S. 411 (2023) (quoting Sun v. Ashcroft, 370 F.3d 932, 942 (9th Cir. 2004)). We 

therefore reject Avila-Alfaro’s argument based on an alternative particular social 

group for lack of exhaustion.
4 22-2041

nurse can be an immutable characteristic because “[u]nlike the skills necessary to 

drive a car, possessed by most adults, professional nursing skills are not shared by 

the general population”). Nor can “El Salvadoran commercial drivers” be defined 

with particularity because the group includes “large swaths of people and various 

cross-sections of a community.” See Macedo Templos, 987 F.3d at 882.

Even if “El Salvadoran commercial drivers” were a cognizable particular 

social group, a reasonable adjudicator could find that the gang members extorted 

Avila-Alfaro purely out of economic interest, rather than because he was a 

commercial driver. See Rodriguez-Zuniga v. Garland, 69 F.4th 1012, 1019 (9th Cir. 

2023); see also Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (a petitioner’s 

“desire to be free from harassment by criminals motivated by theft or random 

violence by gang members bears no nexus to a protected ground”).

2. Although Avila-Alfaro’s opening brief mentions the denial of his CAT 

claim in passing, he does not advance any substantive arguments about why this 

denial was erroneous. This challenge is thus waived. See Ghahremani v. Gonzales, 

498 F.3d 993, 997 (9th Cir. 2007). Regardless, the denial of Avila-Alfaro’s claim 

for CAT protection is also supported by substantial evidence. Avila-Alfaro has not 

shown that he has been previously persecuted, much less tortured, by gang members, 

and the death threats against him were not carried out after he stopped making 

payments. A reasonable adjudicator could conclude that Avila-Alfaro is unlikely to 
5 22-2041

be tortured upon return to El Salvador. See Dhital v. Mukasey, 532 F.3d 1044, 1051

(9th Cir. 2008) (per curiam) (“[T]he petitioner must demonstrate that he would be 

subject to a particularized threat of torture.” (internal quotation marks and citation 

omitted)).

PETITION DENIED.