NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 12-2099

___________

MIGUEL ORELLANA-GARCIA,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A094-320-156)

Immigration Judge: Honorable Walter A. Durling

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

November 21, 2012

Before: FISHER, GARTH and ROTH, Circuit Judges

(Opinion filed: January 29, 2013)

___________

OPINION

___________

PER CURIAM

Miguel Orellana-Garcia, a native and citizen of El Salvador, entered the United 

States with his family at the age of nine without inspection in 1996. After OrellanaGarcia pleaded guilty to a marijuana offense in 2007, the Government charged him as 
2

removable under 8 U.S.C. § 1182(a)(2)(A)(i)(II) for having violated a law relating to a 

controlled substance. He conceded the charge and applied for asylum, withholding of 

removal, and protection under the Convention Against Torture (“CAT”) based on his 

membership in a particular social group. In particular, he argued that as a young 

Salvadoran male raised in the United States (with the characteristics and attributed 

characteristics of such a person), he faced a risk of persecution by gangs in El Salvador.

The Immigration Judge (“IJ”) concluded that Orellana-Garcia’s asylum 

application was time-barred, and denied his other applications. Orellana-Garcia appealed 

the decision to the Board of Immigration Appeals (“BIA”), and sought a remand based on 

Valdiviezo-Galdamez v. Attorney Gen. of the United States, 663 F.3d 582 (3d Cir. 2011).

The BIA dismissed Orellana-Garcia’s appeal. The BIA upheld the denial of the 

asylum application as time-barred. Among other things, the BIA also concluded that, 

even assuming that Orellana-Garcia had articulated membership in a particular social 

group, he had failed to establish that any claimed past mistreatment or fear of future harm 

rose to the level of persecution or was on account of a protected ground. The BIA also 

denied Orellana-Garcia’s motion to remand as unnecessary under the facts of his case 

because he had failed to establish that any past or feared future harm rose to the level of 

persecution or that any harm was on account of any protected ground.

Orellana-Garcia presents a petition for review. He puts forth three claims of error. 

He contends that the BIA should have remanded his case; that the BIA committed legal 

error by holding that the persecution he feared was not on account of a protected ground 
3

regardless of whether he showed a cognizable social group; and that the BIA erred in 

finding that the harm he fears does not rise to the level of persecution.1

We first consider our jurisdiction and conclude that we may consider all three 

questions. The basis for Orellana-Garcia’s removal is his conviction for a controlled 

substance violation, so our jurisdiction is limited under the REAL ID Act to 

constitutional claims and questions of law. See 8 U.S.C. §§ 1252(a)(2)(C) & (D); see

also Liang v. INS, 206 F.3d 308, 323 (3d Cir. 2000). Our review of questions of law 

includes, under these circumstances, review of applications of law to facts. Cf. SilvaRengifo v. Attorney Gen. of the United States, 473 F.3d 58, 63 (3d Cir. 2007) (citing 

Kamara v. Attorney Gen. of the United States, 420 F.3d 202, 211 (3d Cir. 2005), for the 

proposition that the “jurisdictional grant regarding appeals by aggravated felons extends 

not just to legal determinations but also to application of law to facts”).

 The Government 

argues that the latter two claims do not come within our jurisdiction in this case and the 

first is without merit, and accordingly requests that we dismiss the petition in part and 

deny it in part.

Accordingly, we may consider not just the legality of the denial of the request for 

a remand, but also the question whether the feared harm constitutes persecution. Cf.

Toussaint v. Attorney Gen. of the United States, 455 F.3d 409, 412 n.3 (3d Cir. 2006) 

(explaining that we may review, as an application of law to facts, a question that relates 

 1 As the Government asserts, Orellana-Garcia has waived all other claims. See

Voci v. Gonzales, 409 F.3d 607, 609 n.1 (3d Cir. 2005).
4

not to disputed facts, but to whether the facts, if accepted as true, would demonstrate that 

a person would be subject to persecution). Also, Orellana-Garcia presents a legal 

question in his remaining argument insomuch as the essence of his argument is that the 

BIA should not have ruled on whether any persecution was “on account of” a protected 

ground independently of its analysis of the “social group” question.

Upon review, we will deny the petition. In considering the “social group” 

question, the IJ in Orellana-Garcia’s case did rely on the “social visibility” requirement

subsequently rejected in Valdiviezo-Galdamez, 663 F.3d at 604. However, the IJ and the 

BIA also ruled that even if Orellana-Garcia had shown that he was a member in a 

particular social group, he had not shown that he would be targeted on account of that 

basis. Although Orellana-Garcia argues to the contrary, this conclusion could be reached 

without resolving the social group question in this case. Cf. Gomez-Zuluaga v. Attorney 

Gen. of the United States, 527 F.3d 330, 345 n.10 (3d Cir. 2008) (ruling that it was not 

necessary to determine if there was a “particular social group” in that case where there 

was substantial evidence that the petitioner had not been mistreated because of her 

membership in the group she described).

The BIA’s conclusion that Orellana-Garcia would not be targeted on account of a 

protected ground is supported by substantial evidence. As the BIA explained, OrellanaGarcia had merely speculated that his family members’ past experiences were with gang 

members, and his fear of future harm was equally speculative. Orellana-Garcia did not 

provide any evidence that he has been or will be targeted specifically. To the extent he 
5

raised a more specific threat of harm from someone who does not wish to pay back a 

loan, he described a personal dispute unrelated to his membership in any particular social 

group. Cf. Shehu v. Attorney Gen. of the United States, 482 F.3d 652, 657 (3d Cir. 2007) 

(holding that mistreatment resulting from the bare desire for money is not persecution on 

account of a protected ground).

Furthermore, and given the speculative nature of Orellana-Garcia’s claims, 

substantial evidence supports the BIA’s conclusion that the harm Orellana-Garcia feared 

did not rise to the level of persecution. See Abdille v. Ashcroft, 242 F.3d 477, 494-95 

(3d Cir. 2001) (explaining that ordinary criminal activity does not rise to the level of 

persecution); Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993) (stating that the “concept of 

persecution does not encompass all treatment that our society regards as unfair, unjust, or 

even unlawful or unconstitutional”).

Given that the BIA could, and did, provide a rationale for its decision independent 

of the resolution of the social group question in this case, a remand to the IJ was not 

necessary despite our intervening ruling in Valdiviezo-Galdamez. Accordingly, the BIA 

did not err in denying the motion to remand under the circumstances of this case.

For these reasons, we will deny the petition for review.