UNITED STATES CO URT OF APPEALS FOR THE TENTH CIRCUIT

SANTOS CRISTINO DELCID-ZELAYA, Petitioner,

v. ERIC H. HOLDER, JR., United States Attorney General, Respondent. No. 12-9589 (Petition for Review)

ORDER AND JUDGMENT *

Before HARTZ , Circuit Judge, BRORBY , Senior Circuit Judge, and EBEL , Circuit Judge.

Petitioner Santos Cristino Delc id-Zelaya is a native and citizen of El Salvador. Appearing in this court pro se , he petitions for review of an order of the Board of Immigration Appeals (BIA) that dismissed hi s administrative appeal from an order of

* After examining the briefs and appella te record, this pa nel has determined unanimously that oral argument would not mate rially assist the de termination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctr ines of law of the case, res judicata, and collateral estoppel. It may be cite d, however, for its persuasi ve value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### August 6, 2013
Elisabeth A. Shumaker Clerk of Court- 2 - the immigration judge (IJ) that denied hi s application for asylum, restriction on removal, and protection under the Unite d Nations Convention Against Torture (CAT). We deny the petition for review. I. Background Petitioner entered the United States wit hout inspection in July 2008, when he was sixteen years old. Removal proceedings were also initiated in 2008. Petitioner conceded removability but applied for asyl um, restriction on rem oval, and protection under the CAT. The only box Petitioner check ed as a basis for his application for relief was nationality. Petitioner was represented by counsel at the merits hearing in October 2011. He testified that he came to the United States because El Salvador was a “very dangerous place to be. There is a lot of criminality.” Admin. R. at 143. He took buses and taxis to get here, but went through a desert on f oot to cross the border with Mexico. He said that he ri sked the dangers of wildlife and getting lost because “this is the country of freedom and happiness, and where I come from there was a lot of suffering.” Id. at 147. He said that he is af raid to go back to El Salvador. Petitioner testified about tw o specific traumatic experien ces. In 2006, when he was fourteen, he was visiting one of his older brothers who lived about an hour away. They were threatened on a bus by three masked gang members who wanted money. His brother was robbed and beaten. Petiti oner was scared, but was not harmed. His brother reported the assault to the police, but Petitioner and hi s brother could not- 3 - identify the assailants, so not hing was done. Petitioner al so believed that the police would not protect them becaus e the police were also afraid . The men also threatened to harm Petitioner’s family’s home, but his family was afra id to report that to the police. Petitioner also testified that, on his way to work one day in 2007, when he was sixteen, he discovered the body of an acquain tance in the street. His friend had been killed with a machete. Petitioner did not se e the murder, but he was very unsettled by the violence committed against his friend. Petitioner also testified that street vendors near his home were attacked by gang members who wanted money. They starte d shooting at each other, he said. He was not involved in this battle , but he heard the shots. He said that he was also a vendor and got into fights with gang member s who tried to take away his belongings and his money. He did not pay them, and they threw his merchandise on the floor. He said that his family owned a small store, and he believed that they were perceived as having money. Petitioner stated that he had never been convicted of a crime, and he refused invitations to join a gang. He believe d that he would be recognized by the gang members who had tried to recr uit him as a person who has cash. He asserted that El Salvador is a small count ry and people would know if a person was returning from the United States or, if th e person was unknown, it would be assumed that he was returning from the United States and had m oney. He said that conditions had not- 4 - improved in El Salvador since he left, and he could not relocate to another part of El Salvador because he had no family anywhere else. In her decision, the IJ found Petitioner to be a credible witn ess. But the IJ found that Petitioner’s national ity was not a central reason for his past mistreatment or fears of future mistreat ment, and that being a victim of crime does not establish eligibility for asylum. Admin. R. at 68 (citing Vatulev v. Ashcroft , 354 F.3d 1207 (10th Cir. 2003)). In light of our opinion in Rivera-Barrientos v. Holder , 658 F.3d 1222 (10th Cir. 2011), revised on other ground on de nial of reh’g en banc , 666 F.3d 641 (10th Cir. 2012), the IJ c onsidered Petitioner’s testimony to more likely fall into the category of a particular social group than nationality , but the IJ found that the incidents Petitioner had descri bed were not linked to his me mbership in a particular social group and that he had not even defined a particular social group of which he was a member. The IJ noted that the only characteristic Petitione r had described was that he would be perceived to be wealthy, but he had not submitted any evidence to show that society in El Salv ador considered wealthy people to be a distinct group. Finally, the IJ found that ther e was no evidence to show th at Petitioner’s “encounters with gang members were motivat ed by anything more than a desire to rob and extort money from [him] and his family as part of a criminal act.” Admin. R. at 70. The IJ concluded that Petitioner had failed to establish his eligib ility for asylum, had necessarily failed to meet the higher sta ndard for restriction on removal, and had produced no evidence that he would be tort ured in El Salvador to support his claim- 5 - for protection under the CAT. Petitioner appealed to the BIA, appearing through counsel. The BIA determined in a brief order th at Petitioner failed to show any clear error in the IJ’s findings of fact. The BIA also agreed w ith the IJ’s conclusions that Petitioner had failed to establis h his eligibility for asylum, restriction on removal, or protection under the CAT, and that he had failed to demonstrate a nexus between the harm he had suffered or feared in the future and a statutorily protected ground. The BIA dismissed the appeal, and Petiti oner filed this petition for review. II. Issues on Appeal, Standa rds of Review, and Discussion Petitioner argues on appeal that he qua lifies for asylum and restriction on removal based on his political opinion (because he refuse d to join gangs) and his membership in a particular social group (consisting of El Salvadorans who are returning to El Salvador from the United States and perceived to be wealthy). Petitioner’s argument that he was persecute d based on his political opinion because he refused to join gangs is so superficially devel oped as to be waived. See Franklin Sav. Corp. v. United States , 180 F.3d 1124, 1128 n. 6 (10th Cir. 1999). We will consider his argument that the fact that he will be returning from the United States is an immutable char acteristic and that El Sa lvadorans who go back to El Salvador are socially visi ble, such that they should be treated as a social group under immigration law.- 6 - “To be eligible for asylum, an alien mu st establish by the preponderance of the evidence that he or she is a refugee.” Rivera-Barrientos , 666 F.3d at 645. “The [Immigration and Nationa lity Act] defines a ‘refug ee’ as an alien unable or unwilling to return to the country of orig in ‘because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.’” Id. at 645-46 (quoting 8 U.S.C. § 1101(a)(42)(A)) (emphasis omitted). There are three ways to obtain refugee status. “First, through evidence of a well-f ounded fear of future persecution.” Id. at 646. “Second, through a showing of past persecution, which gives rise to a rebuttable presumption of a well-founded f ear of future persecution.” Id. “And finally, through a showing of past persecution so severe as to provide a compelling argument against removal, even though there is no danger of future persecution on the basis of a protected ground.” Id. “Aliens basing their asylum claims upon a well-founded fear of future persecution must show both a genuine, subjectiv e fear of persecution, and an objective basis by credible, direct, and speci fic evidence in the re cord, of facts that would support a reasonable fear of persecution.” Estrada-Escobar v. Ashcroft , 376 F.3d 1042, 1046 (10th Ci r. 2004) (internal quota tion marks omitted). To be entitled to restriction on remova l, an applicant mu st show a “‘clear probability of persecution’ on account of one of the statutorily protected grounds.” Uanreroro v. Gonzales , 443 F.3d 1197, 1202 (10th Cir. 2006) (quoting Elzour v.- 7 - Ashcroft , 378 F.3d 1143, 1149 (10th Cir. 2004)). 1 “Applicants who cannot establish a well-founded fear under asylum standards will necessarily fail to meet the higher burden of proof required for [res triction on] removal . . . .” Id. Petitioner does not present any argument related to his CAT claim, so we need not set out that standard. Petitioner applied for asylum following the enactment of th e REAL ID Act in 2005, so he must establish that his “‘ra ce, religion, nationality , membership in a particular social group, or political opinion was or will be at least one central reason for persecuting [him].’” Dallakoti v. Holder , 619 F.3d 1264, 1268 (10th Cir. 2010) (quoting 8 U.S.C. § 1158(b)(1 )(B)(i)). “[T]he BIA [has] interpreted ‘one central reason’ to mean ‘the protect ed ground cannot play a minor role in the alien’s past mistreatment or fears of future mistreat ment. That is, it cannot be incidental, tangential, superficial, or subordinate to another reason for harm.’” Id. (quoting In re J-B-N- & S-M- , 24 I. & N. Dec. 208, 214 (BIA 2007)). “Persecution . . . means not only persec ution by the government but also by a non-governmental group that the governme nt is unwilling or unable to control.” Id. (internal quotation marks omit ted). “In this circuit, the ultimate determination whether an alien has demonstrated persecu tion is a question of fact, even if the underlying factual circumstances are not in dispute and the onl y issue is whether

1 “Restriction on removal was referred to as ‘withholding of removal’ before amendments to the [Immi gration and Nationality Act] made by the Illegal Immigration Reform and Immigrant Responsi bility Act of 1996 (IIRIRA) . . . .” Wiransane v. Ashcroft , 366 F.3d 889, 892 n.1 (10th Cir. 2004).- 8 - those circumstances qualif y as persecution.” Hayrapetyan v. Mukasey , 534 F.3d 1330, 1335 (10th Cir. 2008) (internal quotation marks omitted). “Agency findings of fact are reviewed under the s ubstantial evidence standard.” Ritonga v. Holder , 633 F.3d 971, 974 (10th Cir. 2011). Under this standard, “our duty is to guarantee that factual determinations are supporte d by reasonable, subs tantial and probative evidence considering the record as a whole.” Uanreroro , 443 F.3d at 1204 (brackets and internal quotation marks omitted). Bu t the agency’s “‘findings of fact are conclusive unless any reasonabl e adjudicator would be comp elled to conclude to the contrary.’” Karki v. Holder , 715 F.3d 792, 800 (10th Ci r. 2013) (quoting 8 U.S.C. § 1252(b)(4)(B)). “What constitutes a particular social group is a pure questi on of law that we review de novo.” Cruz-Funez v. Gonzales , 406 F.3d 1187, 1191 (10th Cir. 2005). A particular social group is one whose members “share a common, immutable characteristic,” and which me ets “the additional requireme nts of particularity and social visibility.” Rivera-Barrientos , 666 F.3d at 648 (inter nal quotation marks omitted). Because Petitioner appears in this c ourt pro se, we cons true his pleadings liberally. See Haines v. Kerner , 404 U.S. 519, 520 (1972) (per curiam). “[O]ur review is confined to the reasoning gi ven by the [agency], and we will not independently search the record fo r alternative bases to affirm.” Elzour , 378 F.3d- 9 - at 1150. But we “may consult the IJ’s opi nion to the extent that the BIA relied upon or incorporated it.” Sarr v. Gonzales , 474 F.3d 783, 790 ( 10th Cir. 2007). Petitioner’s arguments on appeal are conclusory, but we have carefully reviewed the administrative record in th is case. The BIA “ag ree[d] with the Immigration Judge’s conclusion that [P etitioner] has not demonstrated a nexus between the harm suffered and feared and a pr otected ground . . . .” Admin. R. at 4. The BIA did not further address Petitioner’s argument that he qu alified for asylum and restriction on removal as a member of a particular so cial group, so we have reviewed the IJ’s explanation for rejec ting that argument. We conclude that El Salvadorans who are returning to El Salvador from the United States and perceived to be wealthy do not constitute a particular social group on this record.
See Rivera-Barrientos , 666 F.3d at 648 (noting that the term is given “concrete meaning through a process of case-by-case adjudication” (internal quotation marks omitted)). The IJ correctly found that Petitioner had no t submitted any evidence to show that society in El Salv ador considered wealthy people to be a distinct group. The State Department’s 2007 sp ecial report on gangs in El Salvador does not support Petitioner’s position that a dis tinct segment of the popula tion of El Salvador is targeted by gangs due to its wealth. See, e.g. , Admin. R. at 213-14 (B UREAU OF D EMOCRACY , H UMAN R IGHTS AND L ABOR , U.S. D EP ’ T OF S TATE , I SSUE P APER : Y OUTH G ANG O RGS

. IN E L S ALVADOR 26-27 (2007) (discussing gang targets of women, former gang members, clergy memb ers who help former gang members, and- 10 - police officers, and stating th at “[u]nless an i ndividual person has a specific reason to fear gangs, that person would be no more subject to possible violence from gang members than any other person in the c ountry”)). The group proposed by Petitioner therefore fails the test for social visibility. See Rivera-Barrientos , 666 F.3d at 650-51. Moreover, Petitioner admitted that he left El Sa lvador because “[t]here is a lot of criminality,” Admin. R. at 143, and that he did not wish to go back because “the criminality has increased,” id. at 146. As the IJ indi cated, we have held that “acts of common criminality . . . do not implicate asylum eligibility.” Vatulev , 354 F.3d at 1209. Because Petitioner failed to demonstrate his e ligibility for asylum, he necessarily failed to me et the higher standard for restriction on removal.
See Uanreroro , 443 F.3d at 1202. The petition for review is denied.

Entered for the Court
Wade Brorby Senior Circuit Judge