Contreras-Martinez v. Holder ( 2009 )

UNPUBLISHED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Petition denied by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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”). We deny the petition for
review.
The INA authorizes the 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 of persecution or a well-founded fear of
persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.”
8 U.S.C. § 1101(a)(42)(A) (2006). “Persecution involves the
infliction or threat of death, torture, or injury to one’s
person or freedom, on account of one of the enumerated
grounds . . . .” Li v. Gonzales, 405 F.3d 171, 177
(4th Cir. 2005) (quotation marks and citations omitted).
An alien “bear[s] the burden of proving eligibility
for asylum,” Naizgi v. Gonzales, 455 F.3d 484, 486
(4th Cir. 2006); see 8 C.F.R. § 1208.13(a) (2009), and can
establish refugee status based on past persecution in his native
country on account of a protected ground. 8 C.F.R.
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§ 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 like circumstances to fear persecution.
Gandziami-Mickhou v. Gonzales, 445 F.3d 351, 353
(4th Cir. 2006). “The subjective component can be met through
the presentation of candid, credible, and sincere testimony
demonstrating a genuine fear of persecution . . . . [It] must
have some basis in the reality of the circumstances and be
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 considered as a whole. INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992). Administrative
findings of fact, including findings on credibility, are
conclusive unless any reasonable adjudicator would be compelled
to decide to the contrary. 8 U.S.C. § 1252(b)(4)(B) (2006).
Legal issues are reviewed de novo, “affording appropriate
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deference to the [Board’s] interpretation of the INA and any
attendant regulations.” Lin v. Mukasey, 517 F.3d 685, 691-92
(4th Cir. 2008). This court will reverse the Board only if “the
evidence . . . presented was so compelling that no reasonable
factfinder could fail to find the requisite fear of
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 in the Board’s denial of
Contreras-Martinez’ claims for asylum and withholding of
removal. His proposed social group of adolescents in El
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
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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 by others in the native country, . . . (2) be
defined with sufficient particularity to avoid indeterminacy,
. . . and (3) not be defined exclusively by the fact that its
members have been targeted for persecution[.]” Scatambuli v.
Holder, 558 F.3d 53, 59 (1st Cir. 2009) (quotation 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. Mukasey, 509 F.3d 70, 73
(2d Cir. 2007) (“[M]embership in a 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. See Matter of S-E-G-,
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24 I. & N. Dec. at 585. To the extent that Contreras-Martinez
suggests that the Board’s definition of “particular social
group” should not control here, we defer to its reasonable
interpretation of that term. See Castillo-Arias v. U.S. Att’y
Gen., 446 F.3d 1190, 1197-98 (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. Accordingly, we deny the petition for
review. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
before the court and argument would not aid the decisional
process.
PETITION DENIED
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