Lucas Romero-Argueta v. Eric Holder, Jr.

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UNPUBLISHED OPINION FILED. [09-60770 Affirmed ] Judge: JLW , Judge: RHB , Judge: FPB Mandate pull date is 11/22/2010 [09-60770]

Lucas Romero-Argueta v. Eric Holder, Jr.

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Case: 09-60770

Document: 00511250994

Page: 1

Date Filed: 10/01/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 09-60770 S u m m a r y Calendar October 1, 2010 Lyle W. Cayce Clerk

L U C A S DEL ROSARIO ROMERO-ARGUETA, P e titio n e r v. E R I C H. HOLDER, JR., U.S. ATTORNEY GENERAL, R espon dent

P e tit io n for Review of an Order of the B o a r d of Immigration Appeals B I A No. A094 917 492

B e fo r e WIENER, BARKSDALE, and BENAVIDES, Circuit Judges. P E R CURIAM:* L u c a s Del Rosario Romero-Argueta, a native and citizen of El Salvador, c o n c e d e d removability and filed an application for asylum and withholding of r e m o v a l under 8 U.S.C. § 1158(b)(1)(B)(i), based on past persecution. He

p e t it io n s for review of the Board of Immigration Appeals' (BIA) dismissal of his a p p e a l from the Immigration Judge's (IJ) order denying his application. A n immigration court's findings of fact are reviewed for substantial e v id e n c e . E.g., Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009); Mikhael v.
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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Document: 00511250994 Page: 2 No. 09-60770

Date Filed: 10/01/2010

I N S , 115 F.3d 299, 302 (5th Cir. 1997). That an alien is not eligible for asylum o r withholding of removal are findings of fact reviewed for substantial evidence. Zhang v. Gonzales, 432 F.3d 339, 344-45 (5th Cir. 2005). Under this standard, r e v e r s a l is not warranted unless the evidence not only supports a contrary c o n c lu s io n , but compels it. See Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2 0 0 6 ). Deference is accorded the BIA's interpretation of immigration statutes " u n le s s the record reveals compelling evidence that the BIA's interpretation is in c o r r e c t " . Mikhael, 115 F.3d at 302. T o qualify for asylum, an alien must demonstrate either past persecution o r a well-founded fear of future persecution on account of one of five protected g r o u n d s : (1) race, (2) religion, (3) nationality, (4) membership in a particular s o c ia l group, or (5) political opinion. 8 U.S.C. § 1101(a)(42)(A); see Tesfamichael v . Gonzales, 469 F.3d 109, 113 (5th Cir. 2006). To qualify for withholding of r e m o v a l, a petitioner "must demonstrate a `clear probability' of persecution on t h e basis of" one of the five grounds for asylum. 8 C.F.R. § 208.16(b); see Chen, 4 7 0 F.3d at 1138. Because this is a higher burden than for asylum, a petitioner's fa ilu r e to establish entitlement to asylum necessarily defeats a claim for w it h h o ld in g of removal. Chen, 470 F.3d at 1138. Romero contends he has been persecuted, and fears future persecution, on t h e basis of his membership in a "particular social group": young, single,

S a lv a d o r a n men who do not wish to join the Maras gang. "To establish that he is a member of a `particular social group,' an applicant must show that he was a member of a group of persons that share a common immutable characteristic t h a t they either cannot change or should not be required to change because it is `fu n d a m e n t a l to their individual identities or consciences.'" Mwembie v.

G o n z a le s , 443 F.3d 405, 414-15 (5th Cir. 2006). Romero's contention, based on c h a r a c t e r is t ic s of youth, nationality, and gender, is too generalized and lacks the s p e c ific characteristics needed to distinguish him as a member of a "particular s o c ia l group". See Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576-77 (9th Cir. 2

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Date Filed: 10/01/2010

1 9 8 6 ); see also Perez-Molina v. Gonzales, 193 F. App'x 313, 315 (5th Cir. 2006); S e r a t-A ja n e l v. Gonzales, 207 F. App'x 468, 470 (5th Cir. 2006) (both u n p u b lis h e d ) . Romero did not assert to the BIA that the IJ proceedings violated his due p r o c e s s rights; therefore, this court lacks jurisdiction to consider the issue. See O m a r i v. Holder, 562 F.3d 314, 318-19 (5th Cir. 2009). To the extent he contends t h e BIA failed to afford him due process because his testimony was sufficient to c a r r y his burden of proof, his contentions are without merit. See SanchezT r u jillo , 801 F.2d at 1576-77. The evidence does not compel reversal of the BIA's d is m is s a l of Romero's claim for asylum. See Chen, 470 F.3d at 1134.

Accordingly, he cannot meet the higher burden for withholding of removal. Id. at 1138. A majority of Romero's brief here consists of assertions regarding the BIA's p u r p o r t e d failure to grant his request for remand or referral to a three-member p a n e l based on the Rule of Lenity, various regulations, and erroneous credibility d e t e r m in a t io n s by the IJ. Romero made no such request to the BIA. These a s s e r t io n s are divorced from the record and have plainly been lifted from prior b r ie fs filed in this court by attorney Pablo Rodriguez. At certain points, his b r ie fs refer to the wrong petitioner and wrong BIA board member. Rodriguez is C A U T I O N E D that he will be subject to sanctions if he files any future briefs c o n t a in in g such deficiencies. PETITION DENIED.

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