NOT RECOMMENDED FOR PUBLICATION File Name: 22a0042n.06

Case No. 21

- 3472
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

JOSE ENMANUEL GIRON

- GIRON , aka Jose Emanuel Giron

- Giron, Petitioner ,

v.
MERRICK B. GARLAND , Attorney General, Respondent

. ____________________________________/ ) ) ) ) ) ) ) ) ) ON PETITION FOR REVIEW FROM THE UNITED STATES BOARD OF IMMIGRATION APPEALS

Before: SUTTON, Chief Judge ; GUY and DONALD, Circuit Judges. RALPH B. GUY, JR., Circuit Judge. Petitioner, a native and citizen of El Salvador,
entered the United States unlawfully after two encounters with gang members

. During removal proceedings, t he I mmigration Judge (IJ) denied his applications for asylum, wit hholding of removal, and protection under the Convention Against Torture

. T he Board of Immigration Appeals (BIA) affirm ed , without an opinion. Because petitioner has not identified anything that compels a contrary result , the petition for review is denied.
I . In May 2016, petitioner entered the United States through Texas without a valid entry document. Three months later, th e Department of Homeland Security (DHS) s erved petitione r with a Notice to Appear (NTA) and filed it with the immigration court. Petitioner was charg ed in
the NTA with removal from th is country for failure to possess a valid entry document and travelCase No. 21

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document at the time of application for admission, in violat ion of 8 U.S.C. § 1182( a)(7)(A)(i)(I).
T he NTA stated the place petitioner was to appear and noted that the date and time would be set
later

. In August 2016, petitioner appeared before an I J , without counsel . The IJ offered to continue the case to allow petitioner to retain counsel, but petitioner responded that he wished “to proceed [with] the case right now.” During the hearing, petitioner admitted that he recei ved the
NTA and had entered this county unla wfully

. The IJ thus sustained the charge of removal.
Petitioner then applied for asylum and withholding of removal in October 2016.
Petitioner ret ain ed counsel and submitted an updated application in November 2016, adding a request for protection under the Convention against Torture (CAT). Petitioner then filed his written pleading, in which he conceded the charges against him. P etitioner submitted his second upda ted application for asylum, withholding of removal, and protection under the CAT in
March 2019

. In his application, petitioner represented that neither he nor any family members have ever been associated with a political party, student group, labor union, religious organization, military or paramilitary group, ethnic group, human rights group, or the media in El Salvador. Nevertheless, a t the hearing held on April 4, 2019 , petitioner argued he was entitled to relief because he belonged to two social groups : (1) “person s who are prosperous in El Salvador”; and (2) “persons who resist[] the gangs in El Salvador.” Before testifying, p etitioner signed his application for relief

. Petitioner then testified about past threats and fear of future harm. W hen he liv ed in Ocoro, Morazon, El Salvador, he worked in mail and receiving at a store

. He was paid $500 (USD) per month, which was more money than other people made in El Salvador. He testified that people in his community knew that he was “prosperous ” b ecause they would “ watch [him] at work and [he]Case No. 21

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had more things than other people , ” such as a motorcycle. As a result, petitioner explained that on two occasions , in March and April of 2016, gang members approached him on his way home from
work , pointed a gun to his head , and threatened to kill him if he did not pay the gang members $100 per month

. H e allegedly went to the police in March of 2016 , but a police report was not
filed . T o initiate the investigation process, t he police asked petitioner for mo re information, such as names, pictures, telephone numbers, or the addresses where the gang members lived. Petitioner did not have any of that information, so he left and never returned to the police because , in his view, he “saw that they were not doing anything for [him].”
Because of the gang encounters , a doctor in El Salvador allegedly prescribed petitioner
medication in April 2016

. Petitioner paid the gang members for two months (March and April) , and then fled to the United States in May 2016. Since leaving El Salvador, his family and former boss have allegedly told him that the gang members continue to look for him at his former job , and
h is family also reported that gang members ha ve called his old telephone number. Petitioner
claim ed that he would be harmed if he return ed to El Salvador because he did not continue to pay the gang

. At the end of the hearing , the IJ issued an oral decision denying the relief petitioner requested. First, t he IJ found petitioner did not experience “ persecution ” in El Salvador . Second, the IJ found that, even if the “isolated threats” he received constitute persecution, the threats were not on account of his membership in a protected, cognizable group. Thus, although petitioner had a subjective fear of future p ersecution if he returned to El Sa l vador, the IJ concluded that his fear is not objectively reasonable. Third, the IJ found petitioner failed to show that, if removed to El
Salvador , it is more likely than not that he will be tortured at the hands of the Salvadoran government or someone acting with their consent or acquiescence.Case No. 21

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Petitioner appealed to the BIA . T he BIA affirmed the IJ ’s decision without opinion in April 2021

. See 8 C.F.R. § 1003.1(e)(4)

. The instant petition for review followed.
II .

“ Where the BIA affirms without opinion the decision of the IJ, ” as in this case, “ this court directly reviews the decision of the IJ ” as the final agency decision. Sanusi v. Gonzales , 474 F.3d 341, 345 (6th Cir. 2007)

. “ Questions of law are reviewed de no vo, but substantial deference is given to the BIA ’ s interpretation of the [Immigration and Nationality Act (INA) ] and accompanying regulations. ” Khalili v. Holder , 557 F.3d 429, 435 (6th Cir. 2009)

. “[F] indings of
fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary .” 8 U.S.C. § 1252(b)(4)(B)

. In the end, w e must uphold the immigration court’s ultimate determination on the relief requested if it is supported by “substantial evidence.” Kukalo v. Holder , 744 F.3d 395, 399

- 400 (6th Cir. 2011); Yu v. Ashcroft , 364 F.3d 700, 702

- 03 (6th Cir. 2004)

. S ubstantial evidence
“means

— and means only

— ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Biestek v. Berryhill , 139 S. Ct. 1148, 1154 (2019) (quoting Consol. Edison Co. of N.Y. v. NLRB , 305 U.S. 197, 229 (1938))

. That is , w e may reverse only if the
decision was “ manifestly contrary to law, ” 8 U.S.C. § 1252(b)(4)(C), such that “ the evidence not only supports a contrary conclusion, but indeed compels it , ” Haider v. Holder , 595 F.3d 276, 281 (6th Cir. 2010) (cleaned up) ( quoting Ouda v. INS , 324 F.3d 445, 451 (6th Cir. 2003) )

. III . A
. Asylum. There is no basis for overturning the IJ’s decision to deny petitioner asylum. To
be eligible for asylum at the discretion of the Attorney General , the applicant must establish thatCase No. 21

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he is a “refugee.” 8 U.S.C. § 1158(b)(1)(A)

- (B)(i) ; Gilaj v. Gonzales , 408 F.3d 275, 283 (6th Cir. 2005) (per curiam)

. A refugee is an alien who is “ unable or unwilling to return to

. . . [ their ] country because of [past] persecution or a well

- founded fear of [future] persecution on account of

race, religion, nationality, membership in a particular social group, or political opinion. ” 8 U.S.C. § 1101(a)(42)(A) ; see also 8 C.F.R. § 1208.13(b); Bonilla

- Morales v. Holder , 607 F.3d 1132, 1136 (6th Cir. 2010)

. Petitioner relies on both past persecution and fear of future persecution. Neither theory is viable.
The IJ correctly concluded that petitioner did not experience past “persecution” in
El Salvador

. Persecution is “the infliction of harm or suffering by the government, or persons the government is unwilling or unable to control, to overcome a characteristic of the victim.” Bonilla

Morales , 607 F.3d at 1136 (quoting Al

- Ghorbani v. Holder , 585 F.3d 980 , 997 (6th Cir. 2009) )

. B ecause t his case involves the conduct of non

- governmental actor s, i.e., gang members , petitioner was required to show that his alleged persecutors are “ either aligned with the government or that the government is unwilling or unab le to control” them. Antonio v. Barr , 959 F.3d 778, 793 (6th Cir. 2020) (citing Khalili , 557 F.3d at 436). T he IJ , however, did not make a finding on the “ unable

or unwilling ” issue . Although we must assume without deciding that the re quirement is satisfied ,

s ee Gonzales v. Thomas , 547 U.S. 183, 186 (2006) ; Hernandez

- Perez v. Whitaker , 911 F.3d 305,
318 (6th Cir. 2018) , petitioner is not entitled to relief on two other grounds

. First, t he threats petitioner experienced do not amount to persecution. “ Persecution

‘ requires more than a few isolated incidents of verbal harassment or intimidation, unaccompanied by any physical punishment, infliction of harm, or significant deprivation of liberty. ’” Singh v. Ashcroft , 398 F.3d 396, 401 (6th Cir. 2005) ( quoting Mikhailevitch v. INS , 146 F.3d 384, 390 (6th Cir. 1998))

. Petitioner was threatened twice by gang members who demanded money , withoutCase No. 21

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ever harming him

. T he two payments he made to the gang did not create “ economic restrictions
so severe that they constitute a real threat to life or freedom. ” Ouda , 324 F.3d at 454 (citation omitted)

. As we have held, a couple of “t hreats and requests for money ” is not persecution.
Kukalo , 744 F.3d at 400

- 01 ; see also Bonilla

- Morales , 607 F.3d at 1137

. Secon d, petitioner’s purported social groups

— “person s who are prosperous in El Salvador” and “persons who resist[] the gangs in El Salvador”

— are not “particular social group[s]” protected under 8 U.S.C. § 1101(a)(42)(A)

. A “particular social group” must satisfy three requirements: “ (1) immutability (members must share an immutable characteristic), (2) particularity (the group has discrete and definable boundaries), and (3) social distinction (society actually perceives the purported group as a distinct cl ass of persons). ” Cruz

- Guzman v.
Barr , 920 F.3d 1033, 1036 (6th Cir. 2019) ; see Umaña

- Ramos v. Holder , 724 F.3d 667, 671 (6th Cir. 2013). Petitioner has not offered any evidence that either of the two groups he proposes is perceived as a group by the Salv adoran society

. Menijar v. Lynch , 812 F.3d 491, 498 (6th Cir.
201 5 ) ; Umaña

- Ramos , 724 F.3d at 67 4

. And with respect to the first group, a nebulous term like “prosperous” can hardly “ provide a clear benchmark for determining who falls within the group. ” Matter of M

- E

- V

- G , 26 I. & N. Dec. 227, 239 (BIA 2014) ; cf. Menijar , 812 F.3d at 498

. Indeed,
we have held that “ affluent Guatemalan [s]” who have “lived in the United States” is not a valid
social group , Esteban v. Holder , 478 F. App ’ x 301, 30 3 (6th Cir. 2012) , and we have repeatedly
held that “ perceived wealth is not considered a social group ,” see, e.g. , Palokaj v. Holder , 510 F. App’x 464 , 468 (6th Cir. 2013) ; Diaz

- Hernandez v. Holder , 635 F. App’x 159, 161 (6th Cir. 2015) ; Reyes

- Cardona v. Holder , 565 F. App’x 366 , 368 (6th Cir. 2014); Cano

- Huerta v. Holder , 568 F. App’x 371 , 373 (6th Cir. 2014)

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The second purported social group is also specifically foreclosed, as we have already held
that “ mere defiance of unidentified th ugs ’ extortion demands ” does not make an applicant a member of a protected social group. Khozhaynova v. Holder , 641 F.3d 187, 195 (6th Cir. 2011) (quoting Lugovyj v. Holder , 353 F. App ’ x 8, 10 (6th Cir. 2009) ) ; see also Umaña

- Ramos , 724 F.3d

at 673 (holding that “ young Salvadorans who have been threatened because they refused to join the MS gang is not cognizable under the INA ” (cleaned up)).
Petitioner has likewise failed to establish a well

- founded fear of future persecution if he is
returned to El Salvador. Without past persecution, petitioner must show that : (1) “ he genuinely (subjectively) fears he will be persecuted based on a protected ground if returned to his native country ” ; and (2) “ his fears are objectively reasonable. ” Elias v. Gonzal es , 490 F.3d 444, 449 (6th
Cir

. 2007). But p etitioner has not done so because his fear of harm in returning to El Salvador is
not on account of his membership in a “particular social group. ” 8 U.S.C. § 1101(a)(42)(A) ;
Umaña

- Ramos , 724 F.3d at 673 ; Kukalo , 744 F.3d at 400

. Accordingly, the IJ’s decision to deny petitioner’s asylum application is not manifestly contrary to law

. B. Withholding of Removal. Withholding of removal is mandatory if an alien shows that
their “ life or freedom would be threa tened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion. ” 8 U.S.C. § 1231(b)(3)(A) ; see also 8 C.F.R. § 1208.16(b)(1)

- (2); Khalili , 557 F.3d at 435

. Again, any persecution petitioner might face upon removal is not because of his membership in any “ particular social group .” Thus , the IJ properly denied his claim for withholding of removal.Case No. 21

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- C
. Protection under the CAT. Petitioner fares no better in challenging the IJ’s decision to deny him protection under the CAT. Such relief is available where an applicant can show that “it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1 208.16( c)(2). “Torture, in any of its myriad manifestations, must entail the intentional infliction of severe mental or physical pain upon an individual by or at the instigation of or with the consent or acquiescence of a public official or other person acting i n an official capacity.” Zheng v. Lynch , 819 F.3d 287, 294

- 95 (6th Cir. 2016) (citation omitted); accord
8 C.F.R. § 1208.18(a)(1) , (4)

- (6)

. “Acquiescence of a public official requires that the public official, prior to the activity constituting torture, have awareness of such activity and thereafter breach his or her legal responsibility to intervene to prevent such activity.” 8 C.F.R. § 1208.18(a)(7). Here, there wa s no acquiescence on the part of the Salvadoran police

. As the I J noted , during petitioner’s credible fear interview he stated that he did not have any problems with, or fear of, the Salvadoran police or government

. U nlike asylum , any claim “[ t ] hat the Salvadoran government is unable to control the gangs does not cons titute acquiescence. ” Menijar , 812 F.3d

at 50 2 (collecting cases). And under the CAT , “ i t is not enough that [a] public official

. . . recklessly disregarded the truth, or negligently failed to inquire. ” 8 C.F.R. § 1 208.18(a)(7)

. That is especially important here where petitioner is the one who failed to provide the police with any information about the alleged extortionists , much less file a police report

. Nothing compels
reversal of the IJ’s decision to deny petitioner relief.Case No. 21

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- I V . Despite the foregoing, p etitioner asserts a last

- ditch argument urging dismiss al of the entire removal proceedings . He argues for the first time that if t he court declines to grant any of the
forms of requested relief, then under Niz

- Chavez v. Garland , 141 S. Ct. 1474 (2021), the court “should alternatively remand his proceedings for the purpose of rescinding the order of removal . . . and terminating his proceedings” for lack of jurisdiction because his NTA did not state the date
and time of his firs t hearing. We have rejected a similar argument. Rafael v. Garland , 15 F.4th 797, 800

- 01 (6th Cir. 2021). But here, the issue is unreviewable because petitioner did not raise it
before the BIA or the IJ. Khalili , 557 F.3d at 432

- 33 ; Ramani v. Ashcroft , 378 F.3d 554, 560 (6th Cir. 2004)

.

* * * The petition for review is DENIED.