Jose Contreras v. Eric Holder, Jr., No. 10-1875 (4th Cir. 2011)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-1875 JOSE ANGEL CONTRERAS; SANTOS ELMER XIOMARA YESENIA CONTRERAS-GUEVARA, CONTRERAS-GUEVARA; Petitioners, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: March 9, 2011 Decided: March 28, 2011 Before GREGORY, KEENAN, and WYNN, Circuit Judges. Petition denied by unpublished per curiam opinion. Germaine Wright Sobral, MONTAGUT & SOBRAL, P.C., Falls Church, Virginia, for Petitioners. Tony West, Assistant Attorney General, John S. Hogan, Senior Litigation Counsel, Aimee J. Frederickson, 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 Unpublished opinions are not binding precedent in this circuit.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: Jose Angel Contreras ( Contreras ) and his children, Petitioners Xiomara Santos Yesenia Elmer Contreras-Guevara Contreras-Guevara ( Santos ) ( Xiomara ), natives and and citizens of El Salvador, petition for review of orders of the Board of Immigration Appeals ( Board ) dismissing their appeals from the immigration judge s order denying their applications for asylum, withholding of removal and withholding under the Convention Against Torture ( CAT ). We deny the petition for review. The Immigration and Nationality Act ( INA ) authorizes the Attorney General to confer asylum on any refugee. § 1158(a) (2006). 8 U.S.C. It defines a refugee as a person unwilling or unable to return to her native country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political Persecution opinion. involves 8 the U.S.C. § 1101(a)(42)(A) infliction or threat of (2006). death, torture, or injury to one s person or freedom, on account of one of the enumerated grounds . . . . Li v. Gonzales, 405 F.3d 171, 177 (4th Cir. 2005) (internal quotation marks and citations omitted). An alien bear[s] the burden of proving eligibility for asylum, Naizgi v. Gonzales, 455 F.3d 484, 486 (4th Cir. 2 2006); see 8 C.F.R. § 1208.13(a) (2010), and can establish refugee status based on past persecution in her native country on account of a protected ground. (2010). 8 C.F.R. § 1208.13(b)(1) An applicant who demonstrates that he was the subject of past persecution is presumed to have a well-founded fear of persecution. 2004). Ngarurih v. Ashcroft, 371 F.3d 182, 187 (4th Cir. establish Without ground. a regard to well-founded Id. past fear persecution, of persecution an on alien a can protected The well-founded fear standard contains both a subjective and an objective component. The objective element requires a showing of specific, concrete facts that would lead a reasonable person Gandziami-Mickhou 2006). The presentation in v. like Gonzales, subjective of circumstances candid, to fear 445 F.3d 351, component can be credible, and persecution. 353 met (4th Cir. through sincere the testimony demonstrating a genuine fear of persecution . . . . [It] must have some basis in the reality of the circumstances and be validated with specific, concrete facts . . . and it cannot be Li, 405 F.3d at 176 (internal mere irrational apprehension. quotation marks and citations omitted). To establish eligibility for withholding of removal, an alien must show a clear probability that, if she was removed to her native country, her life or freedom would be threatened on a protected ground. 8 U.S.C. § 1231(b)(3)(A) (2006); see 3 Camara v. Ashcroft, 378 F.3d 361, 370 (4th Cir. 2004). A clear probability means that it is more likely than not that the alien would be subject to persecution. 407, 429-30 (1984). INS v. Stevic, 467 U.S. Unlike asylum, withholding of removal is mandatory for anyone who establishes that their life or freedom would be threatened . . . because of [their] race, religion, nationality, membership political opinion. The in a particular social group, or reason for 8 U.S.C. § 1231(b)(3)(A) (2006). protected ground must being targeted for persecution. be a central A central reason is one that is more than incidental, tangential, superficial, or subordinate to another reason for harm. See Quinteros-Mendoza v. Holder, 556 F.3d 159, 164 (4th Cir. 2009) (quoting In re J-B-N-, 24 I. & N. Dec. 208, 214 (BIA 2007)). A determination regarding eligibility for asylum or withholding of removal is affirmed if supported by substantial evidence on the record considered as a whole. Zacarias, 502 U.S. 478, 481 (1992). INS v. Elias- Administrative findings of fact, including findings on 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 issues are reviewed de novo, affording appropriate deference to the BIA s interpretation of the INA and any attendant regulations. Lin v. Mukasey, 517 F.3d 685, 691-92 (4th Cir. 2008). 4 This court will reverse the Board only if the evidence . . . presented was so compelling that no reasonable factfinder could fail to find the requisite fear of persecution. Elias- Zacarias, 502 U.S. at 483-84; see Rusu v. INS, 296 F.3d 316, 325 n.14 (4th Cir. 2002). The entitlement Petitioners to relief as argue a result that of they their established membership particular social group and their political opinion. has defined persecution on account of in a The Board membership in a particular social group within the meaning of the INA to mean persecution member of that a is group directed of toward persons all an of individual whom share who a is a common, immutable characteristic[,] . . . one that the members of the group either cannot change, or should not be required to change because it is consciences. fundamental to their individual identities or Matter of Acosta, 19 I. & N. Dec. 211, 233-34 (BIA 1985), overruled on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439 (BIA 1987). Further, as detailed in In re C-A-, 23 I. & N. Dec. 951, 960 (BIA 2006) and affirmed in In re A-M-E & J-G-U-, 24 I. & N. Dec. 69, 74-76 (BIA 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 others in the native country, . . . (2) be defined with sufficient 5 particularity defined to avoid exclusively by indeterminacy, the fact targeted for persecution[.] 59 (1st Cir. 2009) . . that . its and (3) members not have be been Scatambuli v. Holder, 558 F.3d 53, (internal citations and quotation marks omitted). After reviewing the record, we conclude substantial evidence supports the finding that the Petitioners failed to show they protected founded were targeted ground. The fear particular of by members Petitioners persecution social gang group, based i.e., from MS-13 or other gangs. on claimed they on their families who account had of a membership resist a wellin a extortion They also claimed a well-founded fear on account of a political opinion based on their resistance to the gangs and the gangs extortion attempts. Xiomara and persecution Santos because claimed they they were had a In addition, well-founded targeted on account father s resistance to the extortion attempts. fear of of their A person s or a group s opposition to gangs and resistance to recruitment or extortion neither efforts provide membership, identify a nor an are adequate embody person all as amorphous benchmark concrete characteristics for traits possessing determining that those would that group readily characteristics. Lizama v. Holder, 629 F.3d 440, 447 (4th Cir. 2011) (internal quotation marks and citation omitted). 6 Furthermore, substantial evidence supports the finding that the Petitioners targeted on account of a political opinion. were not They failed to show that they were targeted by the gangs for any reason other than the gangs substantial desires to evidence increase supports their the own coffers. finding that Finally, Xiomara and Santos were not targeted on account of their relationship to their father. The record does not compel a finding that were it not for their relationship to their father, the children would not have been harassed. We further conclude that the immigration judge did not err by declining persecution Petitioners to make because failed to determination judge the a properly show a nexus regarding ruled between past that their the fear of persecution and a protected ground. We also conclude that the Petitioners failed to show the Board or the immigration judge erred in disposing of their claim under the CAT. The record does not compel a finding that any possible torture the Petitioners may face when they return to El Salvador will be with the willful blindness, acquiescence or instigation of the El Salvadorian government. See 8 C.F.R. § 1208.18(a) (2010). Accordingly, dispense with oral we deny argument the petition because 7 the for facts review. and We legal contentions are adequately presented in the materials before the court and argument would not aid the decisional process. PETITION DENIED 8

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