Balmoris Contreras-Martinez v. Eric Holder, Jr.
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
BALMORIS ALEXANDER CONTRERAS-MARTINEZ, Petitioner, v. ERIC H. HOLDER, JR., Attorney General, Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals.
August 21, 2009
October 13, 2009
Before WILKINSON, KING, and GREGORY, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Katherine Leong, WILLIAMS & CONNOLLY, LLP, Washington, D.C., for Petitioner. Michael F. Hertz, Acting Assistant Attorney General, Terri J. Scadron, Assistant Director, Corey L. Farrell, OFFICE OF IMMIGRATION LITIGATION, Washington, D.C., for Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM: Balmoris Alexander Contreras-Martinez, a native and
citizen of El Salvador, petitions for review of an order of the Board of Immigration Appeals ("Board") dismissing his appeal
from the immigration judge's order denying his applications for asylum, withholding of removal and withholding under the
Convention Against Torture ("CAT"). review. The INA authorizes the
We deny the petition for
asylum on any refugee.
8 U.S.C. § 1158(a) (2006).
It defines a
refugee as a person unwilling or unable to return to his native country "because on of persecution of or a well-founded religion, fear of
membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A) (2006). infliction person or or threat of on Li death, account v. "Persecution involves the or of injury the F.3d to one's
torture, of one
enumerated 171, 177
grounds . . . ."
(4th Cir. 2005) (quotation marks and citations omitted). An alien "bear[s] the burden of proving eligibility for asylum," Naizgi see 8 v. Gonzales, § 455 F.3d 484, and 486 can
(4th Cir. 2006);
establish refugee status based on past persecution in his native country on account of a protected 2 ground. 8 C.F.R.
Without regard to past persecution, an alien
can establish a well-founded fear of persecution on a protected ground. Ngarurih v. Ashcroft, 371 F.3d 182, 187
(4th Cir. 2004). The well-founded fear standard contains both a
subjective and an objective component.
The objective component
requires a showing of specific, concrete facts that would lead a reasonable person in v. like circumstances 445 to fear F.3d persecution. 351, 353
Gandziami-Mickhou (4th Cir. 2006). the presentation
"The subjective component can be met through of candid, credible, and sincere testimony [It] must and be
demonstrating a genuine fear of persecution . . . . have some basis in the reality of the
validated with specific, concrete facts . . . and it cannot be mere irrational apprehension." Li, 405 F.3d at 176 (quotation
marks, citations, and alteration omitted). A determination regarding eligibility for asylum or
withholding of removal is affirmed if supported by substantial evidence on the record U.S. considered 478, 481 as a whole. INS v.
Elias-Zacarias, findings of
Administrative credibility, are
conclusive unless any reasonable adjudicator would be compelled to decide to the contrary. Legal issues are reviewed 8 U.S.C. § 1252(b)(4)(B) (2006). de 3 novo, "affording appropriate
deference to the [Board's] interpretation of the INA and any attendant regulations." (4th Cir. 2008). Lin v. Mukasey, 517 F.3d 685, 691-92
This court will reverse the Board only if "the was to so compelling the that no reasonable fear of
evidence . . . presented factfinder could fail
Elias-Zacarias, 502 U.S. at 483-84; see Rusu v.
INS, 296 F.3d 316, 325 n.14 (4th Cir. 2002). We find no error for in the Board's and of denial of of El
Contreras-Martinez' removal. His
Salvador who refuse to join the gangs of that country because of their opposition to the gangs' violent and criminal activities is too broad and ill-defined to qualify as a "particular social group" within the meaning of the INA. See 8 U.S.C.
§§ 1101(a)(42)(A), 1231(b)(3). The Board has defined "persecution on account of
membership in a particular social group" within the meaning of the INA to mean "persecution that is directed toward an
individual who is a member of a group of persons all of whom share a common, immutable characteristic[,] . . . one that the members of the group either cannot change, or should not be required to change because it is fundamental to their individual identities or consciences." Matter of Acosta, 19 I. & N. Dec.
211, 233 (B.I.A. 1985), overruled on other grounds by Matter of 4
Mogharrabi, 19 I. & N. Dec. 439 (B.I.A. 1987).
detailed in In re C-A, 23 I. & N. Dec. 951, 960 (B.I.A. 2006) and affirmed in In re A-M-E & J-G-U-, 24 I. & N. Dec. 69, 74-76 (B.I.A. 2007), in addition to "immutability," the Board requires that a particular social group have: "(1) social visibility, meaning that members possess characteristics . . . visible and recognizable defined with by others in the native to country, . . . (2) avoid be
. . . and (3) not be defined exclusively by the fact that its members have been targeted for persecution[.]" Holder, 558 F.3d 53, 59 (1st Cir. 2009) Scatambuli v. marks,
citations, and alterations omitted). Contreras-Martinez' claims fail this test because he has not demonstrated that members of his proposed group are
perceived by gang members or others in El Salvador as a discrete group. See Ucelo-Gomez v. in Mukasey, a 509 F.3d 70, 73
(2d Cir. 2007)
requires a certain level of `social visibility.'");
S-E-G-, 24 I. & N. Dec. 579, 586-88 (B.I.A. 2008) (concluding that Salvadoran youths who resist gang recruitment are not a cognizable social group because they do not share recognizable and discrete attributes). Additionally, the proposed group is
inchoate, as it is comprised of a potentially large and diffuse segment of El Salvadoran society. 5 See Matter of S-E-G-,
24 I. & N. Dec. at 585. suggests group" that the not
To the extent that Contreras-Martinez definition here, we of "particular to its social
interpretation of that term. Gen., 446 F.3d 1190,
See Castillo-Arias v. U.S. Att'y (11th Cir. 2006); see also
Scatambuli, 558 F.3d at 59-60 (upholding "social visibility" as a criteria for a particular social group). We further find that substantial evidence supports
the Board's finding that Contreras-Martinez was not eligible for relief under the CAT. review. legal before Accordingly, we deny the petition for
We dispense with oral argument because the facts and are and adequately argument presented not in aid the the materials decisional
contentions the court
process. PETITION DENIED
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