Elmer Pena v. Eric Holder, Jr. ( 2011 )

Case: 10-60382 Document: 00511343516 Page: 1 Date Filed: 01/07/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 7, 2011
No. 10-60382
Summary Calendar Lyle W. Cayce
Clerk
ELMER ANTONIO PENA,
Petitioner
v.
ERIC H. HOLDER, JR., U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A094 027 264
Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
Elmer Antonio Pena petitions for review of the Board of Immigration
Appeals’s (BIA) dismissal of his appeal from the Immigration Judge’s (IJ) order
denying his application for withholding of removal. The BIA’s determination
that an alien is not eligible for withholding of removal is a factual finding
reviewed under the substantial evidence standard. Efe v. Ashcroft, 293 F.3d 899,
903 (5th Cir. 2002). “We will affirm the B[IA]’s decision unless the evidence
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
Case: 10-60382 Document: 00511343516 Page: 2 Date Filed: 01/07/2011
No. 10-60382
compels a contrary conclusion.” Carbajal-Gonzalez v. INS, 78 F.3d 194, 197 (5th
Cir. 1996).
Pena contends that he is entitled to withholding of removal because he
established past persecution and a well-founded fear of future persecution on
account of his membership in a particular social group, to wit: El Salvadorans
who refuse to join guerrilla-based gangs.1 Contrary to his assertion, Pena has
not demonstrated that he is a member of a particular social group. See Mwembie
v. Gonzales, 443 F.3d 405, 414-15 (5th Cir. 2006). The suggested group upon
which his claim is founded is too general to comprise a particular social group
for immigration purposes. See id.; see also Sanchez-Trujillo v. INS, 801 F.2d
1571, 1576-77 (9th Cir. 1986). Accordingly, substantial evidence supports the
BIA’s determination that Pena was not entitled to withholding of removal. See
Efe, 293 F.3d at 903.
The petition for review is DENIED.
1
To the extent that Pena renews his claim, raised for the first time in his
administrative appeal to the BIA, that he fears future persecution on account of religion and
political opinion, this court will not consider it. See In re J-Y-C-, 24 I. & N. Dec. 260, 261 n.1
(BIA 2007); see also FED . R. APP . P. 28(a)(5), (8)-(9); United States v. Thames, 214 F.3d 608,
611 n.3 (5th Cir. 2000).
2