* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

REVISED SEPTEMBER 26, 2008

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-60822

Summary Calendar

OSCAR ORLANDO AGUILAR

Petitioner

v.

MICHAEL B MUKASEY, U S ATTORNEY GENERAL

Respondent

Petition for Review of an Order of the

Board of Immigration Appeals

BIA No. A97 745 836

Before KING, GARWOOD and BARKSDALE, Circuit Judges.

PER CURIAM:*

Oscar Orlando Aguilar (Aguilar), a native and citizen of El Salvador,

petitions for review of the Board of Immigration Appeals’ (BIA’s) decision

denying his application for withholding of removal. Aguilar claims that he

suffered persecution in El Salvador because gang members threatened to kill

him, his mother, and his brother unless his brother joined their gang. He also

United States Court of Appeals

Fifth Circuit

F I L E D

September 26, 2008

Charles R. Fulbruge III

Clerk
No. 07-60822

2

claims that he will face more persecution in El Salvador if he is forced to return

to that country.

If the BIA has made no error of law, we will affirm its conclusion if it is

based on the evidence presented and is substantially reasonable.

Ontunez-Tursios v. Ashcroft, 303 F.3d 341, 351 (5th Cir. 2002). We will reverse

only if the evidence compels a contrary conclusion. Carbajal-Gonzalez v. I.N.S.,

78 F.3d 194, 196 (5th Cir. 1996).

An applicant for withholding of removal bears the burden of

demonstrating a clear probability that his life or freedom would be threatened

on account of race, religion, nationality, membership in a particular social group,

or political opinion if he is returned to his country of origin. Chen v. Gonzales,

470 F.3d 1131, 1138 (5th Cir. 2006). A clear probability is one that establishes

that it is more likely than not that the applicant would be subject to persecution

for one of the reasons specified by law. Campos-Guardado v. I.N.S., 809 F.2d

285, 290 (5th Cir. 1987). The clear-probability standard for withholding of

removal requires that the applicant show “a higher objective likelihood of

persecution than that required” to prevail on an application for asylum. Chen,

470 F.3d at 1138 (noting that an applicant for asylum must demonstrate a wellfounded fear of persecution). Threats alone do not necessarily constitute

persecution. See Tesfamichael v. Gonzales, 469 F.3d 109, 116 (5th Cir. 2006);

Mikhael v. I.N.S., 115 F.3d 299, 304 & n.4 (5th Cir. 1997). 

Aguilar testified that he first came to the United States in March 2001,

that he returned to El Salvador in December 2003 because his mother was sick.

His parents and his brother lived in El Salvador. In January 2004 Aguilar was

told by his mother and brother that gang members – recognizable as such by

their tattoos – came by (but not inside) their house and told his mother and

brother, that if his brother did not join the gang they would “kill him, kill my

mother and kill me.” Aguilar was not present at that time. In his affidavit in

support of his application for withholding Aguilar states that “gangs came
No. 07-60822

1Nothing in Aguilar’s testimony even suggests otherwise. His withholding

application answers “no” to the question:

“Have you or your family members ever belonged to or been

associated with any organizations or groups in your home country,

such as, but not limited to, a policity party, student group, labor

3

around our house while I was there and threatened to kill everyone unless our

brother joined them.” Aguilar testified that neither he nor any of his family ever

reported any of this to the police or other authorities. There is no evidence any

of the gang members had any type of weapon. Because of these threats his

brother left El Salvador and Aguilar does not know where he is. Aguilar because

of those threats left El Salvador in February 2004 entering the United States in

March 2004. Aguilar also testified that he, himself, had never had any problems

with gangs and was “never harmed” while in El Salvador. There is no evidence

of any harm to either of his parents who remain in El Salvador (or to his

brother). There is no other evidence of threats or anything else claimed to

constitute persecution or to pose a risk of persecution on return. The evidence

does not compel the conclusion either that Aguilar had actually suffered

persecution in El Salvador or that there is a clear probability that he will suffer

persecution if returned to El Salvador.

Moreover, there was no evidence that any of the threats implicated any of

the protected grounds provided by law. See Roy v. Ashcroft, 389 F.3d 132, 138

(5th Cir. 2004) (“A clear probability means that it is more likely than not that

the applicant’s life or freedom would be threatened by persecution on account of

either his race, religion, nationality, membership in a particular social group, or

political opinion.”). Except for stating that he fears more threats of the type he

previously received, which did not amount to persecution, Aguilar points to no

evidence of future acts that would constitute persecution. Additionally, none of

the threats of which Aguilar complains implicate any of the protected grounds.

See Roy v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004).1
No. 07-60822

union, religious organization, military or paramilitary group, civil

patrol, guerrilla organization, ethnic group, human rights group, or

the press or media?”

His affidavit states that he is “a member of a particular social group, that

is a male.”

4

Although Aguilar mentions the Convention Against Torture (CAT) in his

brief in this court, he did not argue a CAT claim in his brief to the BIA.

Consequently, we have no jurisdiction to consider a CAT claim by Aguilar. See

Witter v. I.N.S., 113 F.3d 549, 554 (5th Cir. 1997).

PETITION DENIED.