Balmoris Contreras-Martinez v. Eric Holder, Jr.

Filing 920091013

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT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Petition denied by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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