Joel Soriano-Dominguez v. Eric Holder, Jr, U S Att , 354 F. App'x 886 ( 2009 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 2, 2009
No. 09-60225
Summary Calendar Charles R. Fulbruge III
Clerk
JOEL SORIANO-DOMINGUEZ,
Petitioner,
versus
ERIC H. HOLDER, JR., U.S. Attorney General,
Respondent.
Petition for Review of an Order of
the Board of Immigration Appeals
No. A94 923 337
Before DAVIS, SMITH, and OWEN, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Joel Soriano-Dominguez, a Salvadoran national, contends that he belongs
to a particular social group consisting of “non-criminal witnesses who have re-
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 09-60225
ported crimes.” On that basis, he sought asylum pursuant to 8 U.S.C § 1158-
(b)(1). The immigration judge (“IJ”) denied the application, and the Board of Im-
migration Appeals (“BIA”) agreed. Because Soriano-Dominguez does not belong
to a particular social group, we deny the petition.
I.
In December 2004, three members of the Salvadoran gang Mara Salvatru-
cha (“MS-13”) robbed Soriano-Dominguez and his grandmother in their house,
taking their television, DVD player, and other valuables. The gang members
threatened to kill Soriano-Dominguez and his grandmother if they reported the
robbery to the police.
Soriano-Dominguez reported it anyway. After five months of investiga-
tion, the police put two gang members in jail for two weeks. Upon their release,
the gang members returned to Soriano-Dominguez’s home, seeking retribution.
They beat him with a bat and physically abused his grandmother.
For the next year, MS-13 members harassed Soriano-Dominguez and
threatened to kill him if he did not join their gang. His grandmother was no lon-
ger a target, and Soriano-Dominguez testified that MS-13 continued to pursue
him only because it wanted him to join the gang. Soriano-Dominguez did not
wish to join it and feared that they would kill him if he remained in El Salvador.
He fled to the United States, where he was apprehended by immigration author-
ities.
In July 2007, Soriano-Dominguez appeared before an IJ, according to
whom the evidence did not establish that Soriano-Dominguez was targeted be-
cause of his membership in a “particular social group.” Rather, the gang seemed
primarily interested in recruiting Soriano-Dominguez. The fact that the gang
no longer threatened his grandmother indicated that it was not targeting a
“group,” much less a “particular social group.”
2
No. 09-60225
The BIA affirmed the IJ’s decision. Specifically, it found that Soriano-
Dominguez had failed to prove that he suffered or feared persecution on account
of a statutorily protected ground. The purported group of “non-criminal witness-
es who have reported crimes” lacked the requisite social visibility to qualify as
a “particular social group.”
II.
We review the BIA’s factual findings for substantial error and its legal con-
clusions de novo. Zhu v. Gonzales, 493 F.3d 588, 594 (5th Cir. 2007). We may
reverse only if the evidence compelsSSnot just supportsSSa contrary conclusion.
Chun v. INS, 40 F.3d 76, 78 (5th Cir. 1994).
An alien seeking asylum under 8 U.S.C. § 1158(b)(1) must first establish
“refugee” status. Specifically, he must show that he is unable or unwilling to re-
turn to his country of citizenship or residence because of 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). Only persecution on
account of a protected ground will qualify an alien for asylum. INS v. Elias-
Zacarias, 502 U.S. 478, 483-84 (1992).
Soriano-Dominguez claims membership in a particular social group con-
sisting of “non-criminal witnesses who have reported crimes.” That is not a so-
cial group for which the immigration laws provide protection. In re C-A, 23 I &
N Dec. 951, 960 (BIA 2006); Scatambuli v. Holder, 558 F.3d 53, 60 (1st Cir.
2009). A social group must be readily identifiable and have a “common, immuta-
ble characteristic” that the members are powerless to change or that is so funda-
mental to their identities or consciences that they should not be required to
change. In re C-A, 23 I & N Dec. at 955. Soriano-Dominguez has not established
that “non-criminal witnesses who have reported crimes” are readily identifiable
or have immutable characteristics that they should not be asked to change.
3
No. 09-60225
Moreover, criminal retaliation against informants is not a basis for asylum, and
“holding otherwise would transform asylum into a garden variety witness protec-
tion program.” Calel-Chitic v. Holder, No. 08-60440, 333 F. App’x 845, ___, 2009
WL 1686609, at *2 (5th Cir. Jun. 16, 2009) (per curiam) (unpublished).
In summary, Soriano-Dominguez has not established a well-founded fear
of persecution on account of membership in a particular social group. The pur-
ported social group in which he claims membership is not protected under the
immigration laws. See Soriano v. Holder, 569 F.3d 1162, 1166 (9th Cir. 2009).
In addition, his testimony seems to indicate that the threats he has suffered are
individualized and particular, motivated by the gang’s desire to recruit him and
the individual members’ desire to settle the score. The fact that gang members
no longer pursue his grandmother indicates that MS-13 is not interested in Sori-
ano-Dominguez as a non-criminal witness who has reported a crimeSSa status
he shares with his grandmother. And Soriano-Dominguez testified that gang
members were looking for him only because they wanted him to join the gang.
The petition for review is DENIED.
4