Oswaldo Galindo-Torres v. ATTORNEY GENERAL OF THE UNITED STATES On

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-3581
OSWALDO GALINDO-TORRES,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES
____________________________________
On Petition for Review of a Decision of the
Board of Immigration Appeals
(Agency No. A98-647-472)
Immigration Judge: Honorable Daniel Meisner
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 1, 2009
Before: BARRY, SMITH and HARDIMAN, Circuit Judges
(Opinion filed: October 9, 2009)
_________
OPINION
_________
PER CURIAM
Oswaldo Galindo-Torres petitions for review of a decision rendered by the Board
of Immigration Appeals on July 31, 2008. For the reasons that follow, we will deny the
petition for review.

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I. Background
Galindo-Torres is a native and citizen of Colombia. He arrived in the United
States in May 2004 and overstayed his temporary visa. He conceded removability and
applied for asylum, withholding of removal, and protection under the Convention Against
Torture (“CAT”), claiming he suffered past persecution and fears future persecution in
Colombia based upon his failure to join the Colombian rebel group known as the
“FARC.” Specifically, Galindo-Torres claims that, beginning in April 2003, two FARC
representatives repeatedly harassed him and threatened his life and his family because he
would not agree to join the FARC or to organize street vendors on the FARC’s behalf.
On December 13, 2006, the IJ issued an oral decision. Among other things, the IJ
determined that Galindo-Torres did not establish that the alleged persecution was on
account of any protected ground, that he ever suffered any actual harm, that he ever
informed the government about the harassment, or that his family members who continue
to reside in Colombia face any harm. Accordingly, the IJ concluded that Galindo-Torres
did not meet his burden of proof and denied the application.
Galindo-Torres appealed. The BIA affirmed the IJ’s decision and dismissed the
appeal on July 31, 2008. This timely petition for review followed.

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In his brief, Galindo-Torres raises no argument concerning the denial of his CAT1
claim. As a result, the claim is waived. See Singh v. Gonzales, 406 F.3d 191, 200 n.9
(3d Cir. 2005).
Galindo-Torres also sought withholding of removal, and therefore bore the burden of2
demonstrating a “clear probability” of persecution, by showing “it is more likely than not”
that he would be persecuted if he were to return to Colombia. See INA § 241(b)(3)(A) [8
U.S.C. § 12 31(b)(3)(A)]; INS v. Cardoza-Fonseca, 480 U.S. 421, 449-50 (1987).
3
II. Analysis
We review the BIA’s decision. Gao v. Ashcroft, 299 F.3d 266, 271 (3d Cir. 2002).
We review legal conclusions de novo, see Ezeagwuna v. Ashcroft, 325 F.3d 396, 405 (3d
Cir. 2003), and uphold factual determinations if they are supported “by reasonable,
substantial and probative evidence on the record considered as a whole.” Guo v.
Ashcroft, 386 F.3d 556, 561 (3d Cir. 2004). Ultimately, for Galindo-Torres to succeed on
his petition for review, this Court “must find that the evidence not only supports that
conclusion [that the application should have been granted], but compels it.” INS v. Elias-
Zacarias, 502 U.S. 478, 481 n.1 (1992).
Galindo-Torres attempted to prove that he suffered past persecution in Colombia
and, as a result, is entitled to a rebuttable presumption that he would also face future
persecution. See Lukwago v. Ashcroft, 329 F.3d 157, 174 (3d Cir. 2003). “To establish1
eligibility for asylum on the basis of past persecution, an applicant must show: (1) an
incident, or incidents that rise to the level of persecution; (2) that is on account of one of
the statutorily-protected grounds; and (3) is committed by the government or forces a
government is either unable or unwilling to control.” Abdulrahman v. Ashcroft, 3302

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Because the standard for withholding of removal is more stringent than that for asylum,
his failure to demonstrate eligibility for asylum necessarily means that his application for
withholding of removal must also fail. See Mudric v. Att’y Gen., 469 F.3d 94, 102 n. 8
(3d Cir. 2006). For convenience, we will discuss only the asylum application, but our
analysis also applies to the withholding of removal claim.
In the alternative, Galindo-Torres argues that he was persecuted on account of his3
political opinions, as reflected in his activities aimed at organizing local street vendors.
However, because Galindo-Torres did not present this argument to the BIA, it is
unexhausted and we will not consider it. See INA § 242(d)(1) [8 U.S.C. § 1252(d)(1)];
Bonhometre v. Gonzales, 414 F.3d 442, 447 (3d Cir. 2005).
4
F.3d 587, 592 (3d Cir. 2003). The BIA concluded that Galindo-Torres failed to meet his
burden of proof to establish that he suffered past persecution.
A.
To obtain asylum, an individual must demonstrate that he is a “refugee” within the
meaning of the INA. To do so requires a showing that he is unwilling or unable to return
to his home country because of “. . . persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.” INA § 101(a)(42)(A) [8
U.S.C. § 1101(a)(42)(A)]. Galindo-Torres argues that the BIA erroneously concluded
that he failed to show persecution “on account of any statutorily-protected ground.”
Specifically, Galindo-Torres claims “membership in a particular social group” targeted
for persecution in Colombia: “influential, respected business people who refuse to aid,
join or support the FARC.” See INA § 101(a)(42) [8 U.S.C. § 1101(a)(42)].3
The INA does not define the term “particular social group.” The statutory
language is “almost completely open-ended,” see Fatin v. INS, 12 F.3d 1233, 1238 (3d

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Under BIA precedent, to satisfy the social visibility requirement, Galindo-Torres4
would have had to present evidence that influential Colombian businesspeople who refuse
to join the FARC are “perceived as a group by society” – in other words, they are
generally recognized in Colombia to be at some greater risk of harm than others who
refuse to join the FARC. See A-M-E-, 24 I&N Dec. at 74 (proposed group of “affluent
Guatemalans” not socially visible because there was no evidence that wealthy
Guatemalans are recognized to be at greater risk of crime than the general population);
5
Cir. 1993), and we have recognized that the “contours of what constitutes a ‘particular
social group’ are difficult to discern.” Lukwago v. Ashcroft, 329 F.3d 157, 170 (3d Cir.
2003). Accordingly, in giving meaning to this phrase, we generally have deferred to the
BIA’s interpretation. See Fatin, 12 F.3d at 1239; Lukwago, 329 F.3d at 171; see also
Chevron U.S.A., Inc. v. Natural Res. Defense Council, Inc., 467 U.S. 837, 843 (1984).
In A-M-E, the BIA explained that, for purposes of the INA, a proposed “particular
social group” must (1) exhibit a shared characteristic that is socially visible to others in
the community, and (2) be defined with sufficient particularity. In re A-M-E- & J-G-U-,
24 I& N Dec. 69, 74-76 (BIA 2007); see also Matter of S-E-G-, et al., 24 I&N Dec. 579,
582 (BIA 2008) (“membership in a purported social group requires that the group have
particular and well-defined boundaries, and that it possess a recognized level of social
visibility.”); In re C-A-, 23 I& N Dec. 951 (BIA 2006) (social visibility of the members of
a claimed social group is an important consideration in identifying the existence of a
particular social group). Relying upon A-M-E-, the BIA concluded that Galindo-Torres
made “no showing” that his proposed social group satisfied the social visibility and
particularity requirements.4

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see also S-E-G-, 24 I&N Dec. at 587 (“Salvadoran youths who resisted gang recruitment”
was not a socially visible group because the youths were not in a different position from
anyone else resisting Salvadoran gangs). To satisfy the particularity requirement,
Galindo-Torres would have had to show that the phrase “influential, respected
businesspeople” is sufficiently specific to establish the parameters of a particular social
group. See A-M-E-, 24 I&N Dec. at 76 (wealth was “too amorphous . . . too subjective,
inchoate, and variable to provide the sole basis for membership in a particular social
group.”); S-E-G-, 24 I&N Dec. at 585 (young men resisting gang membership “make up a
potentially large and diffuse segment of society, and the motivation [for targeting them] . .
. could arise from motivations quite apart from any perception that the males in question
were members of a class.”).
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In response, Galindo-Torres argues that, because he actively refused to join the
FARC, he “is forever branded as an enemy to a powerful guerilla group that is known to
harass, persecute and torture those who do not join them.” He contends that his “refusal
status” provides a central and unchangeable reason why the FARC will continue to target
him. See Lukwago, 329 F.3d at 178 (“immutability” of the shared characteristic is
required to establish membership in a particular social group).
Even if accepted as true, Galindo-Torres’s argument concerning the immutability
of his group membership is irrelevant. The BIA did not base its decision on the
immutability (or lack thereof) of the shared characteristic common to the proposed group
members. Rather, the BIA concluded that Galindo-Torres failed to provide any evidence
of social visibility and particularity, reasonably relying on its prior precedent setting forth
those requirements. See A-M-E-, 24 I& N Dec. at 74-76 Galindo-Torres provides
nothing to compel us to reach a conclusion contrary to the BIA’s. See Elias-Zacarias, 502
U.S. at 481 n.1 (1992). We have reviewed the record and conclude that substantial

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The BIA noted that Galindo-Torres failed to address the IJ’s finding that Galindo-5
Torres did not report the incidents to Colombian authorities. This finding was not in the
context of assessing his credibility, but rather in considering whether he established that
the government was “unable or unwilling to control” the alleged persecution. See A.R.
69. On appeal, Galindo-Torres argues that he was not required to report the persecution
because we agree it would have been futile. However, because we agree with the BIA’s
conclusion that Galindo-Torres did not describe harm rising to the level of persecution,
we need not reach the issue of whether his objective evidence compels a finding that it
would have been futile to report the harm to police.
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evidence supports the BIA’s decision.
B.
Galindo-Torres also argues that, although the BIA concluded that Galindo-Torres
testified credibly about the intimidation, threats, and harassments by the FARC, the BIA
“cast some doubt on his credibility” by noting that he failed to report the alleged incidents
of persecution to authorities in Colombia. He contends that the BIA impermissibly
“invent[ed] explanations to justify its conclusions,” and as a result, the BIA’s decision
does not rest upon substantial evidence.
We disagree. The BIA unequivocally accepted the IJ’s determination that
Galindo-Torres was “credible.” However, the BIA also determined as a matter of law5
that the incidents Galindo-Torres described – essentially, threats, intimidation, and
harassment by two FARC members – did not rise to the level of past persecution. See
Chavarria v. Gonzales, 446 F.3d 508, 518 (3d Cir. 2006).
We have defined persecution to include “threats to life, confinement, torture, and
economic restrictions so severe that they constitute a real threat to life or freedom.”

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Lukwago, 329 F.3d at 168. However, persecution does not encompass all forms of
unfair, unjust, or even unlawful treatment. Fatin, 12 F.3d at 1240. Accordingly, we have
limited the type of threats constituting persecution to “only a small category of cases, and
only when the threats are so menacing as to cause significant actual ‘suffering or harm.’”
Li v. Att’y. Gen., 400 F.3d 157, 164 (3d Cir. 2005). Such threats must be highly
imminent in nature. Id. We agree with the BIA’s conclusion that the threats and
harassment that Galindo-Torres described were not sufficiently menacing or imminent to
rise to the level of persecution. See Chavarria, 446 F.3d at 518.
III. Conclusion
In sum, we conclude that the BIA’s decision to deny Galindo-Torres’s application
rests upon substantial evidence, and there is nothing in the record that would compel a
reasonable fact finder to conclude that reversal is warranted. We have carefully examined
Galindo-Torres’s other contentions and find them to be without merit. We will therefore
deny the petition for review.

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