Balmoris Contreras-Martinez v. Eric Holder, Jr.

Filing 920091013

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-2323 BALMORIS ALEXANDER CONTRERAS-MARTINEZ, Petitioner, v. ERIC H. HOLDER, JR., Attorney General,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. Submitted: August 21, 2009 Decided: 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 Petition denied by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 Attorney General to confer 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 persecution account race, nationality, 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 freedom, enumerated 171, 177 grounds . . . ." Gonzales, 405 (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); C.F.R. 1208.13(a) (2009), establish refugee status based on past persecution in his native country on account of a protected 2 ground. 8 C.F.R. 1208.13(b)(1). 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 Gonzales, "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 circumstances 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 502 (1992). on Administrative credibility, are fact, including findings 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 find requisite persecution." 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 claims asylum group withholding in proposed social adolescents 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). Further, as 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 sufficient particularity indeterminacy, . . . 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, (quotation 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) ("[M]embership purported social group requires a certain level of `social visibility.'"); Matter of 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 Board's control should defer reasonable interpretation of that term. Gen., 446 F.3d 1190, See Castillo-Arias v. U.S. Att'y (11th Cir. 2006); see also 1197-98 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 would process. PETITION DENIED 6

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