Arteaga v. Mukasey

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEAN PIERRE ARTEAGA, 

Petitioner, No. 05-70368

v.

 Agency No.

A92-085-513

MICHAEL B. MUKASEY,* Attorney

General, OPINION

Respondent.



On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted

June 8, 2007—Pasadena, California

Filed December 27, 2007

Before: Stephen S. Trott and Johnnie B. Rawlinson, Circuit

Judges, and Samuel P. King,** Senior Judge.

Opinion by Judge Trott

*Michael B. Mukasey is substituted for his predecessor, Alberto R.

Gonzales, as Attorney General of the United States, pursuant to Fed. R.

App. P. 43(c)(2).

**The Honorable Samuel P. King, Senior United States District Judge

for the District of Hawaii, sitting by designation.

16819

16822 ARTEAGA v.MUKASEY

COUNSEL

Shan D. Potts, Berke Law Offices, Los Angeles, California,

for the petitioner.

Genevieve Holm and Jonathan Robbins, United States

Department of Justice, Civil Division, Washington, DC, for

the respondent.

OPINION

TROTT, Circuit Judge:

Abraham Lincoln, one of our nation’s wisest presidents and

most able lawyers, had an incisive way of illustrating a point

about the meaning of language as used in the law. He would

ask, “If you call a dog’s tail a leg, how many legs does a dog

have?” He would then reject the usual answer “five” with the

statement that calling a tail a leg doesn’t make it a leg, “the

answer is still four.” We find useful in Part IV A. of this opin-

ion President Lincoln’s admonition not to become misled by

ARTEAGA v.MUKASEY 16823

expansive and abstract definitions of the term “social group”

to the extent that the application of such a definition fails to

comport with the manifest legislative purpose of the law and

its language.

I

Jean Pierre Arteaga, a long-time lawful permanent resident

of the United States, faces removal to El Salvador. He peti-

tions for review of a decision of the Board of Immigration

Appeals dismissing his appeal from an immigration judge’s

(“IJ”) order finding him removable as an alien convicted of an

aggravated felony and of an offense related to a controlled

substance, and denying him withholding of removal and relief

under the Convention Against Torture (“CAT”). Before this

court Arteaga argues, inter alia, that because he is marked

with indelible tattoos indicating his gang membership and

may therefore be persecuted by rival gang members if

returned to his home country, he qualifies for withholding of

removal under 8 U.S.C. § 1231(b)(3) as a member of a “social

group.” He defines this group variously as “American Salva-

dorian U.S. gang members of a Chicano American street

gang,” and as former members of the same. We have jurisdic-

tion to address this question pursuant to 8 U.S.C.

§ 1252(a)(2)(D),1 and we hold that Arteaga does not qualify

for withholding of removal as a member of a social group.

Moreover, the jurisdictional bar of 8 U.S.C.

§ 1252(a)(2)(C) requires us to dismiss the portion of Artea-

ga’s petition based on his claim that his conviction under Cal-

1

The government’s argument that we lack jurisdiction to review the

BIA’s rulings on the issues of withholding and CAT relief has been heard

and rejected by this court. See Morales v. Gonzales, 478 F.3d 972, 980

(9th Cir. 2007) (noting that the jurisdiction-stripping provisions of 8

U.S.C. § 1252(a)(2)(C) apply to removal orders, and not to applications

for asylum, withholding of removal, or CAT relief); id. (“[A]s to our reso-

lution of factual issues, when an IJ . . . denies [CAT] relief on the merits,

none of the jurisdiction-stripping provisions . . . apply[.]”).

16824 ARTEAGA v.MUKASEY

ifornia Vehicle Code § 10851(a) does not constitute an

aggravated felony.

We deny the remainder of his petition because, Arteaga’s

arguments notwithstanding, 1) he is not a national of the

United States, 2) he is not entitled to relief under the CAT,

and 3) the IJ who presided over his hearing was not biased.

II

At the age of four, Arteaga’s parents brought him from El

Salvador to the United States, where he was admitted as a

lawful permanent resident. He lived in Los Angeles, and

when he was fourteen years old joined a malignant Mexican

street gang called “New Hall 13.” As a New Hall 13 member,

Arteaga would go “gang banging,” participating in violent

fights involving knives and guns, and going into rival-gang

neighborhoods to find rival-gang members to beat up or run

over with a vehicle. In removal proceedings, he testified that

his participation in gang activity made him a target for violent

attacks by rival gangs.

Arteaga testified that while some members of his gang

committed crimes, such as trading in drugs and stealing, he

did not. However, Arteaga was convicted in California Supe-

rior Court of 1) possession of methamphetamine in violation

of California Health and Safety Code § 11377(a), 2) unlawful

driving and taking of a vehicle in violation of California Vehi-

cle Code § 10851(a), and 3) possession of a concealed

weapon in violation of California Penal Code § 12025(a)(2).

He was sentenced to two years for each conviction, the sen-

tences to run concurrently. Subsequently, the Department of

Homeland Security charged Arteaga with removability as an

alien convicted of an aggravated felony and an offense related

to a controlled substance.2

2

The concealed-weapon violation was not a ground for removal and is

not at issue in this appeal.

ARTEAGA v.MUKASEY 16825

At his hearing before the IJ, Arteaga argued that he was not

a removable alien because he was a “national of the United

States.” He testified that he had applied for citizenship in

1995 when he was nineteen years old, but his application was

denied due to outstanding traffic tickets, and he never reap-

plied. Arteaga never took the oath of citizenship. The IJ ruled

that Arteaga (1) was not a national because he was not born

in the United States or a territory of the United States, (2) was

not the child of an individual born in the United States or a

territory of the United States, and (3) his presence in the

United States did not make him a national. The IJ ruled also

that while Arteaga’s drug conviction was not an aggravated

felony, his conviction pursuant to California Vehicle Code

§ 10851(a) was, and therefore the only forms of relief avail-

able to him were withholding of removal and protection under

the CAT.

In support of his argument that he qualified for withholding

and CAT relief, Arteaga presented documentary evidence,

including two written statements from an El Salvadoran mag-

istrate, showing that the El Salvadoran government, like other

central American governments, has duly enacted “Mano

Duro” laws aimed at cracking down on gang violence.

According to the evidence, an alien removed from the United

States to El Salvador will be detained for seventy-two hours

if suspected of gang affiliation while undergoing a registration

process prescribed by the Mano Duro laws. Arteaga testified

that he could not clothe himself to adequately conceal all of

his tattoos, which cover a substantial portion of his body

including his head, hands, and arms, and which mark him as

a gang member. Therefore, Atreaga argued, he would be

unable to conceal his identity as a member of New Hall 13,

and if removed to El Salvador would be placed in detention,

where rival gang members would identify and kill him.

Noting that the crux of Arteaga’s argument was the tattoos

indicating his association with a criminal street gang, the IJ

ruled that Arteaga was not a member of a social group as that

16826 ARTEAGA v.MUKASEY

concept has been incorporated in our laws providing for the

possibility of asylum in our nation. The IJ denied CAT relief,

finding that Arteaga did not present evidence showing that it

was more likely than not he would be persecuted or tortured

if removed to El Salvador. The IJ noted that one of the El Sal-

vadoran magistrate’s written statements said that due process

was generally afforded individuals subject to Mano Duro

laws, and that El Salvadoran government officials were not

complicit in the abuses of persons housed in El Salvadoran

jails.

Arteaga appealed to the BIA. Relying on Matter of Acosta,

19 I. & N. Dec. 211, 233-34 (BIA 1985) (members of a taxi

cooperative do not constitute a social group), the BIA agreed

with the IJ’s analysis and dismissed his appeal. Arteaga

timely filed a petition for review in this court.

III

We have jurisdiction to review questions of law raised

upon a petition for review, and review them de novo. See 8

U.S.C. § 1252(a)(2)(D); Murillo-Espinoza v. INS, 261 F.3d

771, 773 (9th Cir. 2001). The BIA’s statutory interpretation

is entitled to deference, but the court is not obligated to accept

an interpretation clearly contrary to the plain and sensible

meaning of a statute. Kankamalage v. INS, 335 F.3d 858, 862

(9th Cir. 2003). The court reviews de novo the legal question

of whether a petitioner is a national of the United States.

Perdomo-Padilla v. Ashcroft, 333 F.3d 964, 966 (9th Cir.

2003). The BIA’s findings underlying its determination that

an applicant is not eligible for relief under the CAT are

reviewed for substantial evidence. See Bellout v. Ashcroft,

363 F.3d 975, 979 (9th Cir. 2004). Under the substantial evi-

dence standard, the court upholds the BIA’s determination

unless the evidence in the record compels a contrary conclu-

sion. Prasad v. INS, 101 F.3d 614, 616-17 (9th Cir. 1996).

ARTEAGA v.MUKASEY 16827

IV

A.

[1] In the Ninth Circuit, a social group is defined abstractly

as a group united by 1) a voluntary association which imparts

some common characteristic that is fundamental to the mem-

bers’ identities, or 2) an innate characteristic which is so fun-

damental to the identities or consciences of its members they

either cannot or should not be required to change it. See

Hernandez-Montiel v. INS, 225 F.3d 1084, 1092-93 (9th Cir.

2000). This disjunctive definition reconciles the “voluntary

association category” of social groups we recognized in

Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576 (9th Cir. 1986),

with the requirement the BIA articulated in Matter of Acosta,

19 I. & N. Dec. at 233, that members of a social group exhibit

some “immutable characteristic.” Hernandez-Montiel, 225

F.3d at 1093. In Hernandez-Montiel, we explained that the

Ninth Circuit’s definition of voluntary associations qualifying

as “social groups” is “similar to the Supreme Court of Cana-

da’s definition: . . . groups whose members voluntarily asso-

ciate for reasons so fundamental to their human dignity that

they should not be forced to forsake that association[.]” 225

F.3d at 1093 n.6. In the Ninth Circuit, an individual may

therefore be a member of a social group because of either cer-

tain innate characteristics or on the basis of certain voluntary

associations. Further clarifying the definition of “particular

social group,” the BIA recently ruled that certain factors,

including whether a group’s shared characteristic gives mem-

bers social visibility and whether the group can be defined

with sufficient particularity to delimit its membership, should

be considered in determining whether a particular social

group exists. In re A-M-E, 24 I. & N., Dec. 69, 74-76 (BIA

2007) (“wealthy” Guatemalans do not constitute a particular

social group within the meaning of the “refugee” description).

Arteaga’s counsel suggests that Arteaga’s unique history

and shared cultural experience as a former gang member qual-

16828 ARTEAGA v.MUKASEY

ifies as “an innate characteristic” and thus he is a member of

a social group. See Hernandez-Montiel, 225 F.3d at 1091-92

(noting that social group status might be predicated on a

shared past experience fundamental to the members’ identities

or consciences). We note that Arteaga testified before the IJ

that he was still a gang member, but that he was no longer

“active.” Regardless, Arteaga seeks social group status to

defeat removal to El Salvador, where, he argues, he will be

tortured or killed when he is identified as a gang member

because of his tattoos. According to this argument, his tattoos

are a problem not because they identify him as an individual

with a unique and shared cultural experience and history, but

because they identify him as member of New Hall 13. Boiled

down, his argument rests ultimately on his claim that his tat-

toos mark him for potential persecution.

Under the BIA’s decision in In re A-M-E, a shared charac-

teristic of a group must generally be recognizable to others.

24 I. & N. Dec. 69 at 74. In assessing visibility, we must con-

sider the persecution feared in the context of the country con-

cerned. Id. Here, Arteaga’s tattoos might make him visible to

the police and other gang members as a gang member. He has

argued and presented evidence that he could be detained for

up to seventy-two hours under the Mano-Duro laws. This

alone does not amount to persecution. Nor do we believe that

the BIA’s requirement of social visibility intended to include

members or former members of violent street gangs under the

definition of “particular social group” merely because they

could be readily identifiable.

[2] As both the IJ and BIA noted, Arteaga’s case is similar

to Castellano-Chacon v. INS, 341 F.3d 533 (6th Cir. 2003),

the only published decision with facts analogous to those

before us. In Castellano-Chacon, the Sixth Circuit rejected

the petitioner’s claim that, as a tattooed former gang member,

he was entitled to withholding of removal as a member of a

social group, despite evidence of extra-judicial killings by

Honduran security forces and paramilitary groups who specif-

ARTEAGA v.MUKASEY 16829

ically targeted tattooed youth, who were assumed to be gang

members involved in criminal activity. Castellano-Chacon,

341 F.3d at 539-40. The court held that “tattooed youth” was

an overbroad category falling outside the definition of “social

group.” Id. at 549. This comports with the BIA’s recent hold-

ing that a social group must be sufficiently particular. In re A-

M-E, 24 I. & N. Dec. 69 at 76. We agree: “Tattooed gang

member” falls outside the Ninth Circuit’s definition of social

group.

[3] Moreover, even if we focus our inquiry not on Artea-

ga’s tattoos, but on his unique and shared experience as a

gang member, this characteristic is materially at war with

those we have concluded are innate for purposes of member-

ship in a social group. See, e.g., Hernandez-Montiel, 225 F.3d

at 1094 (finding gay men with female sexual identities a

social group); Sanchez-Trujillo, 801 F.2d at 1576 (identifying

members of a family as an example of a social group) (citing

Herdandez-Ortiz v. INS, 777 F.2d 509, 516 (9th Cir. 1985)).

Arteaga’s “shared past experience” includes violent criminal

activity. We cannot conclude that Congress, in offering refu-

gee protection for individuals facing potential persecution

through social group status, intended to include violent street

gangs who assault people and who traffic in drugs and com-

mit theft. Following in the analytical footsteps of President

Lincoln, calling a street gang a “social group” as meant by our

humane and accommodating law does not make it so. In fact,

the outlaw group to which the petitioner belongs is best

described as an “antisocial group,” the definition of antisocial

being, “tending to interrupt or destroy social intercourse; hos-

tile to the well-being of society; characterized by markedly

deviating behavior; averse to the society of others or to social

intercourse; misanthropic.” WEBSTER’S THIRD NEW

INTERNATIONAL DICTIONARY 96 (2002). To do as Arteaga

requests would be to pervert the manifest humanitarian pur-

pose of the statute in question and to create a sanctuary for

universal outlaws. Accordingly, we hold that participation in

such activity is not fundamental to gang members’ individual

16830 ARTEAGA v.MUKASEY

identities or consciences, and they are therefore ineligible for

protection as members of a social group under 8 U.S.C.

§ 1231(b)(3).

In light of the Ninth Circuit’s definition and the manifest

purpose of the statute, we would be hard-pressed to agree

with the suggestion that one who voluntarily associates with

a vicious street gang that participates in violent criminal activ-

ity does so for reasons so fundamental to “human dignity”

that he should not be forced to forsake the association. See

Hernandez-Montiel, 225 F.3d at 1093 n.6. Again, Arteaga’s

affiliation with New Hall 13 included continuing violent acts

against rival gang members, trading in drugs, and theft. We

cannot imagine holding that a voluntary association that

includes such activities is fundamental to human dignity, and

that an individual who joins such an association should not be

forced to forsake it.

[4] Arteaga’s attempt to present himself as a former mem-

ber of a social group fares no better. Disassociating oneself

from a group does not automatically put one in another group

as group is meant in the law. One who disassociates himself

from a group may fall analytically into a definable category,

but the category of non-associated or disaffiliated persons in

this context is far too unspecific and amorphous to be called

a social group, whether that person is tattooed or not. See In

re A-M-E, 24 I. & N. Dec. 69 at 76 (holding the terms

“wealthy” and “affluent” “are too amorphous to provide an

adequate benchmark for determining group membership”).

B.

Section 1227(a)(2)(A)(iii) of 8 U.S.C. makes removable

any alien convicted of an aggravated felony, which includes

“theft offense[s] . . . for which the term of imprisonment [is]

at least one year.” See 8 U.S.C. § 1101(a)(43)(G). Section

1252(a)(2)(C) of 8 U.S.C. divests the federal courts of juris-

diction to review any final order of removal against an alien

ARTEAGA v.MUKASEY 16831

adjudicated removable by reason of having committed an

aggravated felony. If, however, in challenging an agency

determination that an alien is removable by reason of commit-

ting an aggravated felony, the alien raises a colorable question

of law, then 8 U.S.C. § 1252(a)(2)(D) gives the court jurisdic-

tion to resolve the legal question in the first instance.

Cardoso-Tlaseca v. Gonzales, 460 F.3d 1102, 1103 (9th Cir.

2006). If, upon resolving the legal question, the court deter-

mines the alien was convicted of an aggravated felony, the

jurisdictional bar of § 1252(a)(2)(C) prevents the court from

proceeding with any further review of the agency decision.

Arteaga argues that the California statute pursuant to which

he was convicted, California Vehicle Code § 10851(a), does

not define an offense qualifying as an aggravated felony

under federal law, because the statute does not define a “theft

offense.” First, he claims that the statute does not define a cat-

egorical theft offense because it prohibits aiding and abetting

as well as direct commission of the act, and he argues that

applying the modified categorical approach, there is no evi-

dence in the record of conviction showing he committed a

theft offense. Second, Arteaga argues that a theft offense must

involve a permanent taking, that he was arrested for “joyrid-

ing,” and therefore he lacked the requisite intent to perma-

nently deprive another of property.

[5] Arteaga’s first argument is foreclosed by the Supreme

Court’s decision in Gonzales v. Duenas-Alvarez, 127 S.Ct.

815 (2007). There, the Court held that the generic term “theft

offense” in 8 U.S.C. § 1101(a)(43)(G) includes the crime of

aiding and abetting, and vacated a Ninth Circuit decision

holding that § 10851(a) was not a categorical theft offense.

Duenas-Alvarez, 127 S.Ct. at 818, 823.

[6] Duenas-Alvarez did not address directly the issue

Arteaga raises in his second argument — whether a “theft

offense” necessarily includes the intent to permanently

deprive another of property. However, the Court began with

16832 ARTEAGA v.MUKASEY

the “generic definition of theft” accepted by the Ninth Circuit,

other Circuits, and the BIA: “[T]he taking of property or an

exercise of control over property without consent with the

criminal intent to deprive the owner of rights and benefits of

ownership, even if such deprivation is less than total or per-

manent.” Duenas-Alvarez, 127 S.Ct. at 820 (emphasis added);

see also In re V-Z-S, 22 I. & N. Dec. 1338, 1346 (2000)

(defining “theft offense” using the same language). Arteaga

cites to no authority to support his assertion that a theft

offense requires an intent to permanently deprive another of

property.3

Third and finally, Arteaga argues that § 10851(a) is a bifur-

cated statute that includes the intentless crime of accessory to

or accomplice in the driving or unauthorized taking or steal-

ing of a vehicle, and that this takes the statute outside of

Duenas-Alvarez’s definition of theft offense. This court held

in United States v. Vidal, 504 F.3d 1072, 1074-75 (9th Cir.

2007), that § 10851(a) is not a categorical theft offense

because the possibility of being convicted under the statute as

an accessory after the fact renders it categorically broader

than the generic theft offense. This holding is inapposite here,

however, because unlike the facts in Vidal, and as the IJ noted

here, the record of conviction in Arteaga’s case conclusively

establishes that Arteaga was convicted, under § 10851(a), of

unlawfully taking a vehicle with the intent to either perma-

nently or temporarily deprive the owner of possession — a

theft offense. In other words, in light of Duenas-Alvarez’s

3

United States v. Perez-Corona, 295 F.3d 996 (9th Cir. 2002) does not

further Arteaga’s argument. There, we held that an alien convicted of

“joyriding” pursuant to Arizona Revised Statutes § 13-1803 was not

removable as an alien convicted of an aggravated felony because the stat-

ute did not define a “theft offense” within the meaning of 8 U.S.C.

§ 1101(a)(43)(G). Our reasoning, however, was not based on the distinc-

tion between permanent and temporary deprivation. We held that a “theft

offense” must require some showing of intent to deprive. Because the state

statute had no intent element at all, it did not define a theft offense. Perez-

Corona, 295 F.3d at 1001.

ARTEAGA v.MUKASEY 16833

incorporation of the generic definition of theft offense, and

Vidal’s holding that § 10851(a) is not a categorical theft

offense, applying the Taylor modified-categorical approach to

the facts here reveals that Arteaga was convicted of a theft

offense, an aggravated felony under federal immigration law.

See Taylor v. United States, 495 U.S. 575, 602 (1990) (hold-

ing that a predicate conviction qualifies as a generic crime if

either its statutory definition substantially corresponds to the

generic definition, or the charging paper and jury instructions

required the jury to find all the elements of the generic crime

in order to convict).

[7] Because we determine, pursuant to our limited jurisdic-

tion under 8 U.S.C. § 1252(a)(2)(D), that the IJ and BIA con-

cluded correctly that Arteaga was convicted of a theft offense

constituting an aggravated felony, 8 U.S.C. § 1252(a)(2)(C)

mandates that we proceed no further with review of this issue

and dismiss this portion of the petition for lack of jurisdiction.

C.

Arteaga argues that he is not an alien subject to removal,

but a national of the United States because he is a legal per-

manent resident of long duration who has made an application

for United States citizenship. “Alien” is defined in 8 U.S.C.

§ 1101(a)(3) as “any person not a citizen or national of the

United States.” At oral argument, counsel for Arteaga empha-

sized that according to the plain language of 8 U.S.C.

§ 1101(a)(22), a national of the United States does not have

to be a citizen. This is true. In Hughes v. Ashcroft, however,

we made clear that one cannot become a national through

lengthy residency alone, and held that “a person who is born

outside the United States to qualify for ‘national’ status . . .

must . . . demonstrate (1) birth in a United States territory or

(2) an application for United States citizenship.” 255 F.3d

752, 756-57 (9th Cir. 2001).

[8] In Perdomo-Padilla v. Ashcroft, we narrowed slightly

the conditions under which one may claim status as a

16834 ARTEAGA v.MUKASEY

national, holding that “under the INA, a person may become

a national . . . only through birth or naturalization.” 333 F.3d

964, 966 (9th Cir. 2003). Reading Hughes and Perdomo-

Padilla together, the “birth” requirement refers to birth either

in the United States or in a United States territory. Arteaga

was born in El Salvador. He is not a national through birth.

[9] As for the possibility of becoming a national through

naturalization, Arteaga makes the same argument we rejected

in Perdomo-Padilla — that in light of Hughes, he is not an

“alien” convicted of an aggravated felony because he had

completed an application for naturalization. See Perdomo-

Padilla, 333 F.3d at 965. We noted in Perdomo-Padilla that

status as a national requires permanent allegiance to the

United States, and that “[a] naturalization applicant cannot

rightly be said to owe permanent allegiance, because natural-

ization applications are often denied or withdrawn.” Id. at

968. According to Arteaga’s testimony, his application was

denied and he did not reapply. Thus, he is not a national

through naturalization.

D.

[10] A petitioner seeking CAT relief must show that it is

more likely than not that he will be tortured upon removal,

and that the torture will be inflicted at the instigation of, or

with the consent or acquiescence of, the government. See

Kamalthas v. INS, 251 F.3d 1279, 1283 (9th Cir. 2001);

Zheng v. Ashcroft, 332 F.3d 1186, 1188 (9th Cir. 2003).

The BIA agreed with the IJ that Arteaga failed to prove that

any potential torture he might experience in El Salvador

would be at the hands of the government. Arteaga argues that

the El Salvadoran magistrate’s statement “specifically noted”

that prison officials will not protect gang members who are

imprisoned. Arteaga seems to be referring to the magistrate’s

statement that deportees are not protected from gangs because

the Mano Duro law’s purpose is to protect citizens from

ARTEAGA v.MUKASEY 16835

gangs, and deportees are often suspected of being gang mem-

bers.

As the BIA noted, the statement says that prison authorities

do not participate in abuses or act in complicity with gang

members. The statement says that “it cannot be proven” that

youth the police apprehend are subjected to beatings. And it

says that detainees are released after going before a judge if

there is no evidence against them, and that as long as the

application of Mano Duro is “in the hands of judges of the

Common Penal and Juvenile, due process is respected.”

A separate declaration submitted by the same magistrate

contains conflicting statements the BIA did not mention. For

example, the magistrate stated that “there have been numer-

ous reports of beatings and physical mistreatment” of detain-

ees by police; “there is considerable brutality between the

inmates”; “[p]rison authorities are indifferent to the condi-

tions of the prisons”; and “If . . . Arteaga were deported he

will suffer . . . indefinite detention, . . . and likely death or

physical abuses at the hands of rival gangs” and “[d]etention

authorities will not provide him with adequate protections.”

[11] Weighing the evidence, the IJ and the BIA agreed that

Arteaga did not meet his burden of showing that more likely

than not he would be tortured at the hands of the El Salvado-

ran government if removed. The evidence in the record does

not compel a contrary result. The IJ noted that Arteaga

showed a possibility of mistreatment if he were removed to El

Salvador, but concluded that he failed to establish that, more

likely than not, the government would torture him. Likewise,

the BIA concluded that Arteaga failed to establish that any

possible torture would more likely than not be at the hands of

the government. Applying the substantial evidence standard

of review, we will not disturb the decision of the BIA dismiss-

ing Arteaga’s appeal on this issue.

We note that Arteaga’s assertion that the IJ held him to an

incorrect burden of proof, demanding that he prove a “100

16836 ARTEAGA v.MUKASEY

percent certainty” of torture rather than applying the more-

likely-than-not standard, is demonstrably false. The record

clearly shows that the IJ and the BIA both correctly identified

and applied the more-likely-than-not standard.

E.

[12] We reject Arteaga’s claim that the immigration judge

demonstrated extreme bias and prejudice, insinuating that

Arteaga deserved any harm that might befall him in prison.

He has offered no citations to the record to support this accu-

sation. After reviewing the record, we agree with the BIA that

although the IJ commented on Arteaga’s gang-related activity

and criminal violations, he provided a thorough and unbiased

decision on Arteaga’s case.

V

We reject Arteaga’s argument that he is a member of a

social group within the meaning of 8 U.S.C. § 1231(b)(3), and

DENY this aspect of his petition for review. Pursuant to 8

U.S.C. § 1252(a)(2)(C), we DISMISS the portion of Artea-

ga’s petition challenging the BIA’s conclusion that he was

convicted of an aggravated felony. We DENY the remainder

of his petition.

DISMISSED in part; DENIED in part.