Balmoris Contreras-Martinez v. Eric Holder, Jr., No. 08-2323 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-2323 BALMORIS ALEXANDER CONTRERAS-MARTINEZ, Petitioner, v. ERIC H. HOLDER, JR., Attorney General,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 Petition denied by unpublished per curiam opinion.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 Unpublished opinions are not binding precedent in this circuit.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 Convention Against Torture ( CAT ). withholding under the We deny the petition for review. The INA authorizes asylum on any refugee. the Attorney General 8 U.S.C. § 1158(a) (2006). to confer It defines a refugee as a person unwilling or unable to return to his native country because persecution on of persecution account of or a race, well-founded religion, fear of nationality, membership in a particular social group, or political opinion. 8 U.S.C. § 1101(a)(42)(A) (2006). infliction person or or threat freedom, grounds . . . . of death, on torture, account Li v. Persecution involves the of or one Gonzales, of 405 injury the to one s enumerated F.3d 171, 177 (4th Cir. 2005) (quotation marks and citations omitted). An alien bear[s] the burden of proving eligibility for asylum, Naizgi (4th Cir. 2006); see v. 8 Gonzales, C.F.R. § 455 1208.13(a) F.3d 484, (2009), and 486 can establish refugee status based on past persecution in his native country on account of a protected 2 ground. 8 C.F.R. § 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 subjective and an objective component. contains both a The objective component requires a showing of specific, concrete facts that would lead a reasonable person in Gandziami-Mickhou like v. circumstances Gonzales, to 445 fear persecution. F.3d 351, 353 (4th Cir. 2006). The subjective component can be met through the of presentation candid, credible, and sincere demonstrating a genuine fear of persecution . . . . have some basis in the reality of the testimony [It] must 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 Elias-Zacarias, findings of record 502 fact, considered U.S. 478, including 481 as a (1992). findings on whole. INS v. Administrative 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 de issues are reviewed 3 novo, affording appropriate deference to the [Board s] interpretation of the INA and any attendant regulations. (4th Cir. 2008). This court will reverse the Board only if the evidence . . . presented factfinder Lin v. Mukasey, 517 F.3d 685, 691-92 could fail was so to compelling find the that no requisite reasonable fear of Elias-Zacarias, 502 U.S. at 483-84; see Rusu v. persecution. INS, 296 F.3d 316, 325 n.14 (4th Cir. 2002). We find Contreras-Martinez removal. His no error claims proposed in for social the Board s asylum group and of denial of withholding 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 4 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 defined sufficient with others in the native particularity country, . . . (2) to avoid be indeterminacy, . . . and (3) not be defined exclusively by the fact that its members have been targeted for persecution[.] Holder, 558 F.3d 53, 59 (1st Cir. 2009) Scatambuli v. (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 (2d Cir. 2007) Ucelo-Gomez v. ( [M]embership Mukasey, in a 509 purported F.3d 70, social requires a certain level of social visibility. ); 73 group 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. 5 See Matter of S-E-G-, 24 I. & N. Dec. at 585. suggests the should group that not To the extent that Contreras-Martinez Board s control definition here, 446 F.3d 1190, particular defer to its social reasonable See Castillo-Arias v. U.S. Att y interpretation of that term. Gen., we of 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. review. legal before Accordingly, we deny the petition for We dispense with oral argument because the facts and contentions the court are adequately and argument presented would not in aid the the materials decisional process. PETITION DENIED 6

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