Roberto Flores-Romero v. Loretta Lynch

Filing

UNPUBLISHED OPINION FILED. [16-60105 Affirmed ] Judge: FPB , Judge: JLD , Judge: ECP Mandate pull date is 06/23/2017 [16-60105]

Case: 16-60105

Document: 00513976047

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Date Filed: 05/02/2017

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 16-60105
Summary Calendar

United States Court of Appeals
Fif h Circuit

FILED
May 2, 2017
Lyle W. Cayce
Clerk

ROBERTO FLORES-ROMERO,
Petitioner
v.
JEFFERSON B. SESSIONS, III, U.S. ATTORNEY GENERAL
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A091 522 355
Before BENAVIDES, DENNIS, and PRADO, Circuit Judges.
PER CURIAM: *

Roberto Flores-Romero, a native and citizen of Mexico, petitions for
review of the decision of the Board of Immigration Appeals (BIA) dismissing
his appeal of the immigration judge’s (IJ) denial of asylum, withholding of
removal, and protection under the Convention Against Torture (CAT). FloresRomero has abandoned any challenge to the denial of asylum and protection

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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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under the CAT by failing to address these issues in his brief. See Soadjede
v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
With respect to the denial of withholding of removal, Flores-Romero
argues that the IJ and the BIA erred in determining that he had not
established his membership in a particular social group. He contends that he
was recognized as the witness of a crime involving gang members engaging in
illegal activities at a school, which he reported to law enforcement authorities.
He asserts that he therefore became socially visible to the gang and that he is
now a target for gang retaliation. He further asserts that he is susceptible to
threats on account of being a witness to criminal gang activity. In view of the
foregoing, Flores-Romero argues that he established persecution as a result of
his membership in a particular social group, which consists of Mexicans who
fear for their lives because they reported criminal activity to local authorities.
We review only the BIA’s decision, “unless the IJ’s decision has some
impact on the BIA’s decision.” Orellana-Monson v. Holder, 685 F.3d 511, 517
(5th Cir. 2012) (internal quotation marks and citation omitted). Questions of
law are reviewed de novo, but we afford Chevron 1 deference and give
“controlling weight” to the BIA’s interpretations of ambiguous immigration
statutes “unless they are arbitrary, capricious, or manifestly contrary to the
statute.” Id. (internal quotation marks and citations omitted). Findings of fact
are reviewed under the substantial evidence standard, “which requires that
the decision of the BIA be based on the evidence presented and that the
decision be substantially reasonable.” Id. at 517-18. Under this standard,
“[t]he petitioner has the burden of showing that the evidence is so compelling
that no reasonable factfinder could reach a contrary conclusion.” Id. at 518
(quotation marks omitted).
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Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984).

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To establish membership in a particular social group, an applicant must
show that he is a member “of a group of persons that share a common
immutable characteristic that they either cannot change or should not be
required to change because it is fundamental to their individual identities or
consciences.”

Id. (internal quotation marks and citations omitted).

A

particular social group is one that has “social visibility,” meaning that
“members of a society perceive those with the characteristic in question as
members of a social group,” and “particularity,” meaning that the group “can
accurately be described in a manner sufficiently distinct that the group would
be recognized, in the society in question, as a discrete class of persons.” Id. at
519 (internal quotation marks and citations omitted). The BIA has renamed
the “social visibility” requirement as “social distinction” and clarified its
definition to “emphasize that literal or ‘ocular’ visibility is not required.”
Matter of M-E-V-G-, 26 I. & N. Dec. 227, 228 (BIA 2014).
As shown by Hernandez-De La Cruz v. Lynch, 819 F.3d 784, 787 (5th Cir.
2016), and cases cited therein, we have consistently rejected proposed social
groups similar to that proposed by Flores-Romero. He has not shown error in
the agency’s determination that his proposed social group does not satisfy the
social distinction or social visibility requirement. See Orellana-Monson, 685
F.3d at 518-19; Matter of M-E-V-G-, 26 I. & N. Dec. at 228. Accordingly, FloresRomero’s petition for review is DENIED.

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