[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 16-12031

Non-Argument Calendar

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Agency No. A205-375-768

YUNIOR LOPEZ-PINEDA, 

 Petitioner,

versus

U.S. ATTORNEY GENERAL, 

 Respondent.

________________________

Petition for Review of a Decision of the

Board of Immigration Appeals

________________________

(July 13, 2017)

Before ED CARNES, Chief Judge, MARCUS and JILL PRYOR, Circuit Judges.

PER CURIAM:

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In June 2012 the Department of Homeland Security charged Yunior LopezPineda, a citizen of Guatemala, with being removable under 8 U.S.C. 

§ 1182(a)(7)(A)(i)(I), as an immigrant who, at the time of his application for 

admission, was not in possession of a valid entry or travel document. Through 

counsel, Lopez-Pineda filed an application for withholding of removal and for 

protection under the United Nations Convention Against Torture and Other Cruel, 

Inhuman, or Degrading Treatment or Punishment.

1

 In November 2014 an 

Immigration Judge denied his applications for relief and ordered him removed to 

Guatemala. The Board of Immigration Appeals affirmed the IJ’s order and denied 

Lopez-Pineda’s motion to remand. Lopez-Pineda now petitions for review of the

BIA’s decision. 

I.

Lopez-Pineda contends that the BIA’s conclusion that he was not eligible for 

withholding of removal was not supported by substantial evidence. He argues that 

the BIA failed to consider that he is subject to persecution because he belongs to a 

“particular social group” comprised of young “indigenous business entrepreneurs.” 

“In a petition for review of a BIA decision, we review conclusions of law 

de novo and factual determinations under the substantial evidence test.” Gonzalez 

v. U.S. Att’y Gen., 820 F.3d 399, 403 (11th Cir. 2016). Under the highly 

 1 Because he filed his application more than one year after arriving in the United States, 

Lopez-Pineda conceded that he was not eligible for asylum. See 8 C.F.R. § 208.4(a).

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deferential substantial evidence test, “we view the record evidence in the light most 

favorable to the [BIA’s] decision and draw all reasonable inferences in favor of 

that decision.” Adefemi v. Ashcroft, 386 F.3d 1022, 1026–27 (11th Cir. 2004) (en 

banc). We must affirm the BIA’s decision “if it is supported by reasonable, 

substantial, and probative evidence on the record considered as a whole.” DMuhumed v. U.S. Att’y Gen., 388 F.3d 814, 818 (11th Cir. 2004) (quotation marks 

omitted); see Mendoza v. U.S. Att’y Gen., 327 F.3d 1283, 1287 (11th Cir. 2003)

(“To reverse the [BIA’s] fact findings, we must find that the record not only 

supports reversal, but compels it.”). In this case, “we review only the BIA’s 

decision because the BIA did not expressly adopt the IJ’s opinion or reasoning.” 

Zhang v. U.S. Att’y Gen., 572 F.3d 1316, 1319 (11th Cir. 2009).

To qualify for withholding of removal, a petitioner must establish that his 

“life or freedom would be threatened” in his country because of his “race, religion, 

nationality, membership in a particular social group, or political opinion.” 8 

U.S.C. § 1231(b)(3)(A); see Rodriguez v. U.S. Att’y Gen., 735 F.3d 1302, 1308 

(11th Cir. 2013) (“The applicant must demonstrate that he would more likely than 

not be persecuted upon being returned to his country of origin.”). A petitioner may 

satisfy his burden of proof by showing either “(1) past persecution in his country 

based on a protected ground, in which case a rebuttable presumption is created that 

his life or freedom would be threatened if he returned to his country; or (2) a future 

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threat to his life or freedom on a protected ground in his country.” Delgado v. U.S. 

Att’y Gen., 487 F.3d 855, 861 (11th Cir. 2007) (quotation marks omitted).

Persecution is an “extreme concept” that “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.” Shi v. U.S. 

Att’y Gen., 707 F.3d 1231, 1235 (11th Cir. 2013). In determining whether an 

alien has suffered past persecution, the factfinder must consider the cumulative 

effect of the alleged acts. Delgado, 487 F.3d at 861. The statute governing 

withholding of removal protects “not only against persecution by government 

forces, but also against persecution by non-governmental groups that the 

government cannot control.” Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1257 (11th 

Cir. 2006). However, evidence that is consistent with acts of private violence or 

shows that the petitioner has been the victim of criminal activity does not, on its 

own, constitute evidence of persecution based on a statutorily protected ground. 

Id. at 1258. 

Even assuming that a “particular social group” of indigenous entrepreneurs

exists and Lopez-Pineda falls within that group, the record does not compel the 

conclusion that he suffered past persecution based on a protected ground. 

Mendoza, 327 F.3d at 1287. The evidence shows that three or four gang members 

approached Lopez-Pineda on five different occasions and demanded money from 

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him. They never physically attacked him or used any weapons against him, but he 

could see that they had knives. He gave them money the first two times but had no 

money to give them when they approached him the other three times. After the 

last encounter, the gang members threatened to kill him if he didn’t pay them 

within 24 hours. Lopez-Pineda fled Guatemala three weeks later. The gang 

members did not harass or attack his family before or after he fled the country.

The gang members’ actions, considered cumulatively, do not amount to 

persecution based on a protected ground. According to Lopez-Pineda’s own 

testimony, the gang members confronted him because they knew he ran a 

successful business and had a significant amount of money on him so that he could 

buy repair parts — not because he was a member of an indigenous entrepreneur 

group. Evidence that one is a victim of criminal activity is not evidence of 

persecution based on a statutorily protected ground. Ruiz, 440 F.3d at 1258. The 

BIA considered whether Lopez-Pineda was a member of a “particular social 

group” and concluded that, even if he were, the evidence showed “the central 

reason the criminal street gang targeted [him] was due to its criminal intent to 

extort him of the money he earned from his business repairing and installing 

electronics.” As a result, although the evidence shows that gang members held up

Lopez-Pineda, substantial evidence supports the BIA’s determination that he had 

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not suffered past persecution based on protected ground. See Rodriguez, 735 F.3d 

at 1308.

Because Lopez-Pineda did not show past persecution, it was still his burden

to show “a future threat to his life or freedom on a protected ground in his 

country.” Delgado, 487 F.3d at 861. An applicant who has not shown past 

persecution “cannot demonstrate that his or her life or freedom would be 

threatened if the [IJ] finds that the applicant could avoid a future threat to his or her 

life or freedom by relocating to another part of the proposed country of removal 

and, under all the circumstances, it would be reasonable to expect the applicant to 

do so.” 8 C.F.R. § 208.16(b)(2). It is the petitioner’s burden to show “that it 

would not be reasonable for him . . . to relocate” within the particular country. Id.

§ 208.16(b)(3)(i).

Substantial evidence supports the BIA’s determination that Lopez-Pineda 

could relocate within Guatemala to avoid any potential future threat to his life or 

freedom. The record shows that Lopez-Pineda completed his bachelor’s degree in 

electronic engineering and electricity, was an honor roll student, and successfully 

owned and operated an electronic repair workshop out of his home. He is young, 

healthy, educated, and hardworking. See id. § 208.16(b)(3) (listing factors to 

consider in determining the reasonableness of relocations). 

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Although Lopez-Pineda submitted articles suggesting that discrimination 

against indigenous people exists across Guatemala, that evidence is not enough to 

show a “future threat to his life or freedom” because he is an indigenous 

entrepreneur. Lopez-Pineda never identified the ethnicities of the gang members 

who accosted him or provided evidence that his status as an indigenous 

entrepreneur played a role in the gang members’ motivation. Instead, the evidence 

showed that they targeted him because he had money, and there is no evidence 

suggesting that he would face a future threat to his life or freedom in other parts of 

Guatemala from those or other gang members. As a result, Lopez-Pineda did not

demonstrate that he more likely than not would be persecuted on a protected 

ground if forced to return to Guatemala. Mendoza, 327 F.3d at 1287. Substantial 

evidence supports the BIA’s denial of withholding of removal. 

II.

Lopez-Pineda also contends that that the BIA abused its discretion in 

denying his motion to remand because he provided new evidence that was material 

and would likely change the outcome of his case. 

“[I]f a motion to remand seeks to introduce evidence that has not previously 

been presented, it is generally treated as a motion to reopen . . . .” Najjar v. 

Ashcroft, 257 F.3d 1262, 1301 (11th Cir. 2001). We review for abuse of discretion

the denial of a motion to reopen. Zhang, 572 F.3d at 1319. “The moving party 

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bears a heavy burden,” and our review is limited to determining whether the BIA 

exercised its discretion “in an arbitrary or capricious manner.” Id.

A motion to reopen must state the “new facts that will be proven at a hearing 

to be held if the motion is granted and shall be supported by affidavits or other 

evidentiary material.” 8 C.F.R. § 1003.2(c)(1). “A motion to reopen proceedings 

shall not be granted unless it appears to the [BIA] that evidence sought to be 

offered is material and was not available and could not have been discovered or 

presented at the former hearing.” Id. The alien must show that the “new evidence 

offered would likely change the result in the case.” Ali v. U.S. Att’y Gen., 443 

F.3d 804, 813 (11th Cir. 2006) (quotation marks omitted).

As the movant, Lopez-Pineda bore the “heavy burden” of proving that the 

BIA abused its discretion in denying his motion to reopen. Lopez-Pineda points to 

a report and four articles that he submitted to the BIA documenting the history of 

the“[p]ersecution of indigenous people in Guatemala.” Except for one article, all 

of the documents predate the IJ’s decision, and Lopez-Pineda does not explain how 

that evidence “was not available and could not have been discovered or presented 

at the former hearing.” See 8 C.F.R. § 1003.2(c)(1). The article dated after the 

IJ’s decision discusses the arrest of an indigenous activist who “was denouncing 

human rights violations” and “defending the natural resources of [indigenous] 

communities.” But Lopez-Pineda fails to connect that arrest to the likelihood that 

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he would be persecuted if he returns to Guatemala. Because Lopez-Pineda did not 

offer any new evidence “likely [to] change the result in [his] case,” Ali, 443 F.3d at 

813, the BIA did not abuse its discretion in denying his motion to reopen.2

PETITION DENIED.

 2 In his brief to this Court, Lopez-Pineda made only passing references to the denial of 

his claim for protection under the CAT. As a result, he has abandoned that claim, and we do not 

consider it. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) 

(“[A]n appellant abandons a claim when he either makes only passing references to it or raises it 

in a perfunctory manner without supporting arguments and authority.”).

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