Geimy Hilario-Molina v. Eric Holder, Jr.

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1751
GEIMY LORENE HILARIO-MOLINA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration
Appeals.
Submitted: September 7, 2012 Decided: September 19, 2012
Before NIEMEYER, KING, and SHEDD, Circuit Judges.
Petition denied by unpublished per curiam opinion.
Hilario Mercado, Jr., MERCADO & CASTILLO, P.L.L.C., Falls
Church, Virginia, for Petitioner. Stuart F. Delery, Acting
Assistant Attorney General, Linda S. Wernery, Assistant
Director, Susan Bennett Green, Office of Immigration Litigation,
UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for
Respondent.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Geimy Lorene Hilario-Molina (“Hilario”), a native and
citizen of El Salvador, petitions for review of an order of the
Board of Immigration Appeals (“Board”) sustaining the Attorney
General’s appeal, vacating the immigration judge’s order,
denying her motions to dismiss, and finding that she did not
establish she was eligible for asylum or withholding of removal
based on her membership in a particular social group. We deny
the petition for review.
We conclude that the Board’s decision denying
Hilario’s motions to dismiss based on an untimely notice of
appeal was not clearly erroneous. Substantial evidence supports
the finding that the Government filed a timely notice of appeal.
Hilario’s challenge to this finding is based in part on
speculation. We further conclude that the Board did not abuse
its discretion in denying Hilario’s motion for summary
dismissal. See Lapaix v. Attorney General, 605 F.3d 1138, 1144-
45 (11th Cir. 2010); Escobar-Ramos v. INS, 927 F.2d 482, 484
(9th Cir. 1991).
The INA permits the Attorney General to grant asylum
to any refugee who applies. The refugee must show that she is
unwilling or unable to return to her country because she has a
well founded fear of persecution on account of race, religion,
nationality, membership in a particular social group, or
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political opinion. Crespin-Valladares v. Holder, 632 F.3d 117,
124 (4th Cir. 2011). The court will vacate the Board’s order if
it is “‘manifestly contrary to law.’” Id. (quoting 8 U.S.C.
§ 1252(b)(4)(C) (2006)). Factual findings are accepted unless
any reasonable adjudicator would be compelled to conclude to the
contrary, and legal conclusions are reviewed de novo. The
Board’s order is accorded substantial deference. Id.Neither the INA nor the associated regulations define
“particular social group.” This court defers to the Board’s
reasonable interpretation of the term. Lizama v. Holder, 629
F.3d 440, 446-47 (4th Cir. 2011). A particular social group
must meet three criteria: “(1) its members share common,
immutable characteristics, (2) the common characteristics give
its members social visibility, and (3) the group is defined with
sufficient particularity to delimit its membership.” Id., 629
F.3d at 447 (citing Matter of E–A–G–, 24 I. & N. Dec. 591, 594
(BIA 2008); In re A–M–E & J–G–U, 24 I. & N. Dec. 69, 74–76 (BIA
2007); Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA 1985),
overruled on other grounds by Matter of Mogharrabi, 19 I. & N.
Dec. 439 (BIA 1987)). Whether a group is a particular social
group is a question of law reviewed de novo. See Malonga v.
Mukasey, 546 F.3d 546, 553 (8th Cir. 2008).
We have reviewed the record and the Board’s opinion
and conclude that Hilario did not establish that she was a
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member of a particular social group with common, immutable
characteristics for the reasons cited by the Board. We further
conclude that Hilario’s group was not sufficiently particular.
We also note that the Board did not improperly review the
factual findings that supported the immigration judge’s
conclusion that Hilario was a member of a particular social
group.
Because Hilario did not establish membership in a
particular social group, the Board correctly found she was not
entitled to asylum or withholding of removal. Accordingly, we
deny the petition for review. We also deny the Attorney
General’s motion to remand and deny as moot Hilario’s motion to
remove the case from abeyance. 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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