Miguel Castellanos-Pena v. Eric Holder, Jr.

Case: 12-60112 Document: 00512067510 Page: 1 Date Filed: 11/29/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
November 29, 2012
No. 12-60112
Summary Calendar Lyle W. Cayce
Clerk
MIGUEL OMAR CASTELLANOS-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. A087 473 337
Before DAVIS, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
Miguel Omar Castellanos-Pena, native-citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’ (BIA) dismissal of his appeal from
the Immigration Judge’s denying his withholding-of-removal application. He
contends the BIA erred because he established past persecution on account of his
membership in a particular social group, and there is a clear probability of
future persecution against him if returned to El Salvador.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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No. 12-60112
On review of the BIA’s decision, the Immigration Judge’s underlying
decision is considered only if it influenced the BIA’s determination. E.g.,
Mikhael v. INS, 115 F.3d 299, 302 (5th Cir. 1997). Questions of law are reviewed
de novo; and a substantial-evidence test applies to factual findings, including
whether an alien has demonstrated eligibility for withholding of removal. E.g.,
Lopez-Gomez v. Ashcroft, 263 F.3d 442, 444 (5th Cir. 2001); Chen v. Gonzales,
470 F.3d 1131, 1134 (5th Cir. 2006). “The substantial evidence standard
requires only that the [BIA’s] conclusion be based upon the evidence presented
and that it be substantially reasonable.” Carbajal-Gonzalez v. INS, 78 F.3d 194,
197 (5th Cir. 1996) (internal quotation marks and citation omitted). The BIA’s
determination will be affirmed “unless the evidence compels a contrary
conclusion”. Id.To qualify for withholding of removal, an alien must show it is more likely
than not that his life or freedom would be threatened by persecution on account
of his “race, religion, nationality, membership in a particular social group, or
political opinion”. 8 U.S.C. § 1231(b)(3)(A). To establish persecution because of
membership in a particular social group, an alien must show 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”. Mwembie v. Gonzales,
443 F.3d 405, 414-15 (5th Cir. 2006) (internal quotation marks and citation
omitted).
Although Castellanos-Pena defined his proposed social group before the
Immigration Judge as “[i]ndividuals threatened or persecuted by Maras,” he
appears to assert here he was persecuted for his status as a Salvadoran
businessman who refused to accede to gang activities. Obviously, if that is his
claim the BIA could not address such newly raised assertions here. Therefore,
Castellanos-Pena failed to exhaust his administrative remedies for this newly
broadened social group, and our court lacks jurisdiction to consider this new
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No. 12-60112
social group. E.g., Said v. Gonzales, 488 F.3d 668, 670-71 (5th Cir. 2007). We
will consider the more narrow group subsumed within it; it may well be that is
the group he is claiming.
For that more narrow social group, the BIA’s decision that Castellanos-
Pena failed to establish eligibility for withholding of removal is supported by
substantial evidence. It did not err in determining the proposed social group
was not particular for purposes of the Immigration and Nationality Act. E.g.,
Mwembie, 443 F.3d at 414-15. The determination that Castellanos-Pena feared
crime and violence generally is also supported by substantial evidence. Further,
his allegation that he established a nexus between his future persecution and a
protected ground is insufficient to compel a contrary conclusion.
DENIED.
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