Appendix — Contreras-Martinez v. Holder

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

No. 08-2323

BALMORIS ALEXANDER CONTRERAS-MARTINEZ,

PETITIONER

Vv.

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

Betore WILKINSON, KING, and CREGORY, Cir-

cuit Judges.

Petition denied by unpublished per curiam opinion.

Unpublished opinions are not binding precedent in

this circuit.

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PER CURIAM:

Balmoris Alexander Contreras-Martinez, a native

and citizen of El Salvador, petitions for review of an or-

der of the Board of Immigration Appeals (“Board”) dis-

missing his appeal from the immigration judge’s order

denying his applications for asylum, withholding of re-

moval and withholding under the Convention Against

Torture (“CAT”). We deny the petition for review.

The INA authorizes the Attorney General to confer

asylum on any refugee. 8 U.S.C. § 1158(a) (2006). It de-

fines a refugee as a person unwilling or unable to return

to his 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 opinion.” 8 U.S.C. 1101(a)(42)(A) (2006). “Perse-

cution involves the infliction or threat of 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) (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.

2006) ; see 8 C.F.R. § 1208.13(a) (2009), and can establish

refugee status based on past persecution in his native

country on account of a protected 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 contains both a sub-

jective and an objective component. The objective com-

ponent requires a showing of specific, concrete facts that

would lead a reasonable person in like circumstances to

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fear persecution. Gandziami-Mickhou v. Gonzales, 445

F.3d 351, 353 (4th Cir. 2006). “The subjective component

can be met through the presentation of candid, credible,

and sincere testimony demonstrating a genuine fear of

persecution .... [It] must have some basis in the reality

of the circumstances and be validated with specific, con-

crete facts ... and it cannot be mere irrational apprehen-

sion.” L1, 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 sub-

stantial evidence on the record considered as a whole.

INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992). Admin-

istrative 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 no-

vo, “affording appropriate deference to the [Board’s] in-

terpretation of the INA and any attendant regulations.”

Lin v. Mukasey, 517 F.3d 685, 691-92 (4th Cir. 2008).

This court will reverse the Board only if “the evidence

... presented was so compelling that no reasonable fact-

finder 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).

We find no error in the Board’s denial of Contreras-

Martinez’ claims for asylum and withhoiding of removai.

His proposed social group of adolescents in E] Salvador

who refuse to join the gangs of that country because of

their opposition to the gangs’ violent and criminal activi-

ties 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).

4a

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 di-

rected toward an individual who is a member of a group

of persons all of whom share a common, immutable cha-

racteristic[,] .. . one that the members of the group ei-

ther 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.1.A. 1985), overruled on other grounds by Matter of

Mogharrabi, 19 1. & N. Dee. 439 (B.1.A. 1987). Further,

as detailed in Jn re C-A-, 23 I. & N. Dec. 951, 960 (B.I.A.

2006) and affirmed in Jn re A-M-E- & J-G-U-, 241. & N.

Dec. 69, 74-76 (B.I.A. 2007), in addition to “immutabili-

ty,” the Board requires that a particular social group

have: “(1) social visibility, meaning that members pos-

sess characteristics ... visible and recognizable by oth-

ers in the native country, . . . (2) be defined with suffi-

cient particularity to avoid indeterminacy, . . . and (3) not

be defined exclusively by the fact that its members have

been targeted for persecution[.]” Scatambuli v. Holder,

558 F.3d 53, 59 (1st Cir. 2009) (quotation marks, cita-

tions, 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 E]

Salvador as a discrete group. See Ucelo-Gomez v. Muka-

sey, 509 F.8d 70, 78 (2d Cir. 2007) (“[M]Jembership in a

purported social group requires a certain level of ‘social

visibility.””); Matter of S-E-G-, 24 1. & 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 seg-

5a

ment of E] Salvadoran society. See Matter of S-E-G-, 24

I. & N. Dec. at 585. To the extent that Contreras-

Martinez suggests that the Board’s definition of “par-

ticular social group” should not control here, we defer to

its reasonable interpretation of that term. See Castillo-

Arias v. U.S. Att'y Gen., 446 F.3d 1190, 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 eli-

gible for relief under the CAT. Accordingly, we deny the

petition for review. We dispense with oral argument be-

cause the facts and legal contentions are adequately pre-

sented in the materials before the court and argument

would not aid the decisional process.

PETITION DENIED.

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APPENDIX B

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION

REVIEW

DECISION OF THE BOARD OF IMMIGRATION

APPEALS

FALLS CHURCH, VIRGINIA

A98-115-469 — Baltimore, MD

IN RE BALMORIS ALEXANDER CONTRERAS-MARTINEZ

IN REMOVAL PROCEEDINGS

APPEAL

Oct. 29, 2008

APPLICATION: Asylum; withholding of removal;

Convention Against Torture

ORDER

PER CURIAM. The respondent appeals from the

decision of the Immigration Judge to deny his applica-

tions for asylum, withholding of removal, and protection

under the Convention Against Torture. The appeal is

dismissed.

Ta

On appeal, the respondent argues that the MS-13

gangs in E] Salvador persecuted him on account of his

membership in a particular social group, namely “adoles-

cents in El Salvador who refuse to join gangs of that

country because of their opposition to the gangs’ violent

criminal activities.” The respondent argues that mem-

bers of this group share a common immutable characte-

ristic that is fundamental to their identities. The respon-

dent argues that he demonstrated that the government

of El Salvador has acquiesced to gang violence against

its citizens and contends that he is therefore eligible for

protection under the Convention Against Torture.

We have defined a “social group” to be “a group of

persons all of whom share a common, immutable charac-

teristic.” Matter of Acosta, 19 I&N Dec. 211, 233 (BIA

1985) (holding that a Salvadoran taxi cooperative did not

constitute a particular social group). The respondent’s

proposed social group of “adolescents in E] Salvador who

refuse to join gangs of that country because of their op-

position to the gangs’ violent criminal activities” is too

broad and ill defined to constitute a discrete particular

social group within the meaning of the Immigration and

Nationality Act. See Matter of S-E-G-, 24 I&N Dec. 579

(BIA 2008) (Neither Salvadoran youth who have been

subjected to recruitment efforts by the MS-13 gang and

have rejected and who rejected or resisted membership

in the gang based on their own personal, moral, and reli-

gious opposition to the gang’s values and activities nor

the family of member of such Salvadoran youth consti-

tute a “particular social group”). Therefore, we adopt

and affirm the decision of the Immigration Judge finding

that the respondent’s proposed social group does not

constitute a particular social group within the meaning of

the Act. /d.; INS v. Elias-Zacarias, 502 U.S. 478 (1992);

Lopez-Soto v. Ashcroft, 383 F.3d 228 (4th Cir. 2004);

Sa

Matter of E-A-G-, 24 1&N Dec. 591 (BIA 2008) (finding

that “persons resistant to gang membership” does not

constitute a particular social group).

We do not find sufficient evidence to establish that

the government of El Salvador has acquiesced to gang

violence against its citizens at present or in the future.

We note that the United States Court of Appeals for the

Kighth Circuit squarely addressed this question and

found that while the government of El Salvador may

have a problem controlling gang activity of which it is

aware, this is not sufficient to find acquiescence to tor-

ture by third parties. See Menjivar v. Gonzales, 416 F.3d

918, 923 (8th Cir. 2005). 8 C.F.R. § 1208.18(a)(1). The

United States Court of Appeals for the Fourth Circuit

affirmed this Board’s conclusion that a Guatemalan alien

failed to establish eligibility for relief under the Conven-

tion Against Torture because he had not shown that the

government of Guatemala acquiesced in the torturous

activities of the Mara 18 criminal gang. Lopez-Soto v.

Ashcroft, supra, at 240. Accordingly, the respondent's

appeal is dismissed.

Frederick D. Hess

FOR THE BOARD

9a

APPENDIX C

UNITED STATES DEPARTMENT OF JUSTICE

EXECUTIVE OFFICE FOR IMMIGRATION

REVIEW

UNITED STATES IMMIGRATION COURT

BALTIMORE, MARYLAND

A98-115-469

IN THE MATTER OF CONTRERAS-MARTINEZ,

BALMORIS ALEXANDER, RESPONDENT

IN REMOVAL PROCEEDINGS

CHARGE: Immigration and Nationality Act

(“INA”) §212(a)(6)(A)(i), as

amended, in that Respondent is an

alien present in the United States

without being admitted or paroled,

or who arrived in the United States

at any time or place other than as

’ See ot hes tha . ‘

designated by the Attorney General

APPLICATIONS: Asylum, pursuant to INA § 208;

Withholding of Removal pursuant to

INA § 241(b)(3); and Withholding

of Removal pursuant to Article 3 of

the United Nations Convention

Against Torture and Other Forms

10a

of Cruel, Inhuman or Degrading

Treatment or Punishment (CAT)

MEMORANDUM OF DECISION AND ORDER

I. Procedural History

Respondent is a 20-year-old male, native and citizen

of El Salvador. He arrived in the United States at or

near Brownsville, Texas on or about July 15, 2004 and

was intercepted by immigration officials. Respondent

was placed in proceedings through the issuance of a No-

tice to Appear (“NTA”), dated July 15, 2004. The NTA

alleges that: (1) Respondent is not a citizen or national of

the United States; (2) Respondent is a native of E] Sal-

vador and a citizen of El] Salvador; (3) Respondent ar-

rived in the United States at or near Brownsville, Texas,

on or about July 15, 2004; and (4) Respondent was not

then admitted or paroled after inspection by an Immi-

gration Officer. Based upon these allegations, the NTA

charges Respondent with removability pursuant to INA

§ 212(a)(6)(A)i).

At a master calendar hearing held on March 7, 2005,

Respondent admitted the factual allegations contained in

the NTA and conceded the charge of removability. Thus,

the Court sustained the charge of removability under

INA § 212(a)(6)(A)(i). At the request of DHS counsel,

El Salvador was designated by the Court as the country

of removal. On May 2, 2005, Respondent filed his appli-

cation for asylum under INA § 208, withholding of re-

moval under INA § 241(b)(3), and withholding of remov-

al under the Convention Against Torture. A merits

hearing was held on October 28, 2005, wherein Respon-

dent testified on his own behalf and offered the witness

lla

testimony Dr. Negro. Following the merits hearing, the

Court reserved its decision to review the testimony and

evidence presented, and to allow the Government to

complete its background check. The background check is

complete, and the Court has now had an opportunity to

consider, in full, the contents of Respondent’s application

as well as the contents of all documents that were admit-

ted into evidence. For the following reasons, all applica-

tions for relief will be denied.

II. Evidence Presented

A. Testimonial Evidence

Testimony of Respondent’

Respondent testified that he reluctantly agreed to at-

tend the initiation of his friend Mauricio into a gang be-

cause he always liked to accompany Mauricio and did not

realize what would happen. Although Respondent had

heard about Mara Salvatrucha (or MS-13) at the time, he

was not clear about what the group signified. Initially,

Respondent told Mauricio that he did not want to attend

the initiation because of his Christian and moral beliefs

— ie. that he was opposed to the killing, robbing, and

raping that the gang was known for. This did not stop

Respondent’s attendance because he looked up to Mauri-

cio as an older brother — Kespondenit ivved, admired,

and appreciated him. Even though Respondent was fear-

ful of MS-13 at the time, his fear escalated after Mauricio

' Respondent stipulated to the detailed facts contained in his affida-

vit. Therefore, testimony began with cross-examination, and Res-

pondent was given the opportunity for re-direct examination if ne-

cessary.

12a

joined. Respondent was not concerned that members of

MS8-13 would contact him because the initiation was for

Mauricio and because Respondent did not stay for the

entire initiation. No one attempted to stop Respondent

from leaving the initiation. He indicated that the MS-13

gang allowed him to leave because they were aware of

his values at the time and only attempted to force him to

join the gang after Mauricio did.

Respondent stated that he attempted to avoid gang

members, but they continued to beat him and call him

derogatory names. Other children in Respondent’s age

group also had problems with the gang. He said that if

he were forced to return, he would no longer be a stu-

dent but because the gangs are everywhere, it would im-

possible to avoid their recruitment efforts. Further,

Respondent testified that members of the gang knew

him, and therefore, it would be impossible to relocate

within E] Salvador.

Lastly, Respondent testified that his family — with

the exception of his alcoholic father — is in the U.S. His

two brothers, three sisters, and his mother live here.

There was no re-direct examination.

Testimony of Dr. Paulo J. Negro”

Dr. Negro testified that, during the course of his ses-

sions with Respondent, there did not appear to be any

malingering. He said that it would have been difficult for

Respondent to reproduce a consistent emotional re-

sponse if he were not truthful. In fact, Respondent’s re-

—-

* Respondent stipulated to the facts contained in the witness’s re-

port. Therefore, testimony began with cross-examination, and Res-

pondent was given the opportunity for re-direct examination if ne-

cessary.

13a

sponse was somewhat restricted or limited. Dr. Negro

indicated that Respondent used to have intrusive memo-

ries but now exhibits more avoidance characteristics.

Dr. Negro initially saw Respondent in September for

an hour-long interview and again in October to see how

Respondent was doing and to make sure there had been

no changes before the hearing. Dr. Negro stated that be-

cause of Respondent’s restricted emotion, he also had a

second session to see if he could “get something else

from him.” Dr. Negro testified that the normal interview

length required to make a diagnosis of post traumatic

stress disorder can be less than an hour and that it de-

pends on the type of symptoms exhibited.

B. Documentary Evidence:

The following exhibits were received and admitted in-

to evidence:

Exhibit 1:

° Notice to Appear, dated July 15, 2004

Exhibit 2:

° Form I-589, Application for Asylum and

for Withholding of Removal, and support-

ing documentation:

Affidavit of Respondent

English translation of Respondent’s

affidavit

Report and resume of Luis Rodri-

guez

Affidavit of Alex Sanchez

U.S. Department of State 2004

Country Report on the Human

Rights Practices in E] Salvador

mo Oo WP

ne

aed

~

vo 42 5 FSA

14a

Birth Certificate of Respondent

English translation of Respondent’s

birth certificate

Report of Dr. Mauricio Arturo Era-

zo Anaya

English translation of Dr. Anaya’s

report

Report and curriculum vitae of Dr.

Paulo J. Negro

Affidavit of Jose Contreras

Certificate of Attendance, Miguel de

Unamuno Institute

English translation of Certificate of

Attendance

Copy of one page of Respondent’s

Salvadoran passport

English translation of passport

U.S. Department of Justice Decem-

ber 10, 1998 Memorandum entitled

Guidelines for Children’s Asylum

Claims

U.S. Department of State March 17,

2005 Consular Information Sheet on

El Salvador

September 17, 2004 Washington

Post article entitled Central Ameri-

ca’s Gang Crisis

September 26, 2004 New York

Times article entitled Latino gangs

Confound the Law

July 20, 2005 El Diario de Hoy ar-

ticle entitled Asesinan a un estu-

diante a balazos en San Martin

English translation of Subexhibit T

15a

V. August 2, 2005 Diario E] Mundo ar-

ticle entitled Se dispara ola de ho-

micidios en El Salvador, un pro-

medio de 12 diarios

English translation of Subexhibit V

June 7, 2005 New York Times ar-

ticle entitled How the Street Gangs

Took Central America

¥. Country of Origin Research, Cana-

da Immigration & Refugee Board

(November 28, 2002)

Z. November 8, 2004 Ameriquests ar-

ticle entitled Youth, Gangs, and

Corruption in Honduras: Social

Group Membership and Political

Opinion as Grounds for Political

Asylum in the United States

AA. Decision of the Immigration Judge,

In re D-V-, Immigration Court, San

Antonio, TX (September 9, 2004)

BB. Decision of the Immigration Judge,

Matter of Lopez-Soto, Immigra-

tion Court, Arlington, VA (April 19,

2001)

m=

III. Statement of Law and Findings of the Court

The Court has considered the entire record carefully.

All evidence and testimony has been considered, even if

not specifically addressed further below. Respondents’

applications for asylum under INA § 208, withholding of

removal under INA § 241(b)(3), and withholding of re-

moval under the Convention Against Torture are de-

nied based on the following findings.

16a

A. Applicable Standards

INA § 208(a) provides that an alien may be granted

asylum in the exercise of discretion if he or she qualifies

as a refugee within the meaning of INA § 101(a)(42)(A).

An applicant for asylum “bears the burden of establish-

ing that he or she meets the ‘refugee’ definition of INA

§ 101(a)(42)(A),” which defines a refugee in part as an

alien who is unable or unwilling to return to his or her

home country because of persecution, or a well-founded

fear of persecution, on account of race, religion, national-

ity, membership in a particular social group, or political

opinion. Matter of S-P-, 21 I&N Dec. 486 (BIA 1996);

see also 8 C.F.R. § 1208.13(a); INA § 208(a). The alien

requesting asylum bears the evidentiary burden of proof

and persuasion in connection with any application under

INA § 208. See 8 C.F.R. § 1208.13(a); see also Matter of

S-M-J-, 21 I&N Dec. 722 (BIA 1997); Matter of Acosta,

19 I&N Dec. 211, 215 (BIA 1985), modified on other

grounds, Matter of Mogharrabi, 19 IK&N Dec. 439, 446

(BIA 1987). The alien’s fear of persecution must be

country-wide. Acosta, 19 I&N Dec. at 235; see also

Matter of Fuentes, 19 I&N Dec. 658 (BIA 1988). Addi-

tionally, the alien must establish that he or she is unable

or unwilling to avail himself or herself of the protection

of the alien’s country of nationality or last habitual resi-

dence. INA § 101(a)(42)(A). Finally, the alien must

demonstrate that he or she is eligible for asylum as a

matter of discretion. See INA § 208(b)(1); see also INS

v. Cardoza-Fonseca, 480 U.S. 421, 423 (1987).

In applications for asylum, withholding of removal,

and withholding of removal under Article 3 of the Con-

vention Against Torture, the Court generally makes a

threshold determination of the alien’s credibility. See

Matter of O-D-, 21 I&N Dec. 1079 (BIA 1998); see also

17a

Matter of Pula, 19 I&N Dec. 467 (BIA 1987); Matter of

Vigil, 19 I&N Dec. 572 (BIA 1988). An applicant’s own

testimony is sufficient to meet his or her burden of prov-

ing the asylum claim if it is believable, consistent, and

sufficiently detailed to provide a plausible and coherent

account of the basis of his or her fear. See Matter of

Dass, 20 I&N Dec. 120, 124 (BIA 1989); see also 8

C.F.R. § 1208.13(a). An applicant may be given the

“benefit of the doubt” if there is some ambiguity regard-

ing an aspect of the asylum claim where credibility is not

specifically called into question. See Matter of Y-B-, 21

I&N Dec. 1136 (BIA 1998). In assessing the application

for asylum, inconsistent accounts create doubts regard-

ing the alien’s credibility. See Matter of Mogharrabi, 19

I&N Dec. 439, 446 (BIA 1957). To be sure, in some cas-

es, an applicant may be found to be credible even if he or

she has trouble remembering specific facts. See e.g.,

Matter of B-, 21 IGN Dec. 66 (BIA 1995) (finding that

an alien who has fled persecution may have trouble re-

membering exact dates when testifying, and such failure

to provide precise dates may not be an indication of de-

ception). However, testimony is not considered credible

when it is inconsistent, contradictory with current coun-

try conditions, or inherently improbable or implausible.

See Matter of S-M-J-, 21 I&N Dec. 722 (BIA 1997); see

also Matter of A-S-, 21 I&N Dec. 1106 (BIA 1998)

(holding that a credibility finding should he accorded a

high degree of deference when the discrepancies de-

scribed by the Immigration Judge are actually present,

the discrepancies provide specific reasons to conclude

that the alien provided incredible testimony and “a con-

vincing explanation for the discrepancies and omissions

has not been supplied by the alien” although he had the

opportunity to do so). Furthermore, the presentation by

an asylum applicant of an identification document that is

18a

found to be false not only discredits the applicant’s claim

as to the critical elements of identity and nationality, but,

in the absence of a sufficient explanation, also indicates

an overall lack of credibility regarding the entire claims.

See Matter of O-D-, 21 I&N Dec. 1079 (BIA 1998).

An applicant must also prove that there is a reasona-

ble possibility that he or she might suffer persecution if

returned to his or her native country. See 8 C.F.R.

§ 1208.13(b)(2)(i)(B). A well-founded fear of persecution

must be both subjectively genuine and objectively rea-

sonable. See Cardoza-Fonseca, 480 U.S. at 421. A res-

pondent must show some degree of likelihood that he or

she may be persecuted. Matter of Acosta, 19 I&N at

226; see also Cardoza-Fonseca, 480 U.S. at 431. The

BIA has interpreted “persecution” to include serious

threats to an individual’s life or freedom, or the infliction

of significant harm on the applicant, as a means of pu-

nishing that person for holding a characteristic that the

persecutor seeks to overcome. Matter of Acosta, 19

I&N at 233. Cf. Klawitter v. INS, 970 F.2d 149, 152 (6th

Cir. 1992) (distinguishing between mere harassment and

persecution); Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir.

1993) (finding that persecution within the INA does not

encompass all treatment that society regards as unfair,

unjust, or even unlawful or unconstitutional); Matter of

Kasinga, 21 I&N Dec. 357, 365 (BIA 1996) (discussing

the level of harm necessary to constitute persecution).

Persecution must also be more than mere harassment.

See Mikhailevitch v. INS, 146 F.3d 384, 390 (6th Cir.

1998). The persecution must also be on account of one of

the protected grounds specified in the “refugee” defini-

tion. In mixed motive cases, any asylum application is

not obliged to show conclusively why persecution has oc-

curred or may occur; however, in proving past persecu-

19a

tion, the applicant must produce evidence, either direct

or circumstantial, from which it is reasonable to believe

that the harm was motivated in part by an actual or im-

puted political ground. See In re §-P-, 21 I&N Dec. 486

(BIA 1996); see also LN.S. v. Elias-Zacarias, 112 S.Ct.

812 (1992)(finding that persecution on accownt of politi-

cal opinion is not established by the fact that the coerc-

ing guerrillas had “political” motives; in order to satisfy

§ 101(a)(42), the persecution must be on account of the

victim’s political opinion, not the persecutor’s).

An applicant for asylum demonstrates a well-founded

fear if he or she presents specific facts establishing that

he or she has actually been the victim of persecution.

Cardoza-Fonseca, 480 U.S. at 421; Matter of Moghar-

rabi, 19 I&N Dec. at 439. Evidence of past persecution

raises a rebuttable presumption that an alien has reason

to fear future persecution. Matter of Chen, 20 I&N Dec.

16 (BIA 1989); 8 C.F.R. § 1208.13(b)(1)(i). This pre-

sumption may be rebutted by proving by a preponder-

ance of the evidence that conditions in the country have

changed to such a degree that there is little likelihood of

present persecution. Matter of Chen, 20 I&N Dec. at

18; see also Ngarurih v. Ashcroft, 371 F.3d 182 (4th

Cir. 2004).

An applicant for asylum and withholding must dem-

onstrate that his fear of being targeted by gangs would

constitute persecution “on account of’ a recognized

ground. Lopez-Soto v. Ashcroft, 383 F.3d 228 (4th Cir.

2004).

Withholding of removal, in contrast to asylum, con-

fers only the right not to be deported to a particular

country rather than the right to remain in the U.S. See

INS v. Aguirre-Aguirre, 526 U.S. 415 (1999). To estab-

lish eligibility for withholding of removal, a respondent

20a

must show that there is a clear probability of persecution

in the country designated for removal on account of race,

religion, nationality, membership in a particular social]

group, or political opinion. See INS v. Stevic, 467 U.S.

407 (1984). Such a showing requires that the respon-

dents establish that it is more likely than not that they

would be subject to persecution if returned to the coun-

try from which they seek withholding of removal. See

INS _v. Cardoza-Fonseca, 480 U.S. 421, 423 (1987).

Thus, the standard for withholding of removal is more

stringent than the standard for asylum. Stevic at 429-

430.

The applicant for withholding of removal under the

Convention Against Torture bears the burden of prov-

ing that it is “more likely than not” that he or she would

be tortured if removed to the proposed country of re-

moval. See 8 C.F.R. § 1208.16(c)(2). “Torture” is defined

in the treaty and at 8 C.F.R. § 1208.18(a)(1). Additional-

ly, the torture must come at the hands of the government

of El Salvador. See Matter of S-V-, 22 I&N Dec. 1306

(BIA 2000). In assessing whether the applicant has satis-

fied his or her burden of proof, the Court must consider

all evidence relevant to the possibility of future torture,

including: evidence of past torture inflicted upon the ap-

plicant; evidence that the applicant could relocate to a

part of the country of removal where he or she is not

likely to be tortured; evidence of gross, flagrant, or mass

violations of human rights within the country of removal;

and other relevant information of conditions in the coun-

try of removal. See 8 C.F.R. § 1208.16(c)(3). Because a

claim under the Convention Against Torture is analyti-

cally distinct from an asylum claim, the Court may not

deny an alien’s Convention Against Torture claim sole-

ly on the basis of an adverse credibility determination.

2la

Camara v. Ashcroft, 378 F.3d 361, 372 (4th Cir. 2004).

However, the alien must present other evidence in sup-

port of his or her claim. Id.

The inability of a government to control criminal

gangs does not constitute the “acquiescence” contem-

plated in Article III of the Convention Against Torture.

Lopez-Soto v. Ashcroft, 383 F.3d 228 (4th Cir. 2004).

B. Analysis

In the matter sub judice, the Court finds that Res-

pondent is credible. His overall testimony was candid,

detailed, and for the most part, consistent. The harm

that Respondent describes in his affidavit and in his

sworn testimony is plausible given the historical infor-

mation on country conditions which reflects that perse-

cution and gang violence in E] Salvador and other Latin

American countries is rampant. After considering all re-

levant factors, along with the testimony and evidence of

record, the Court resolves credibility in Respondent’s

favor. See INA § 208(b)(1)(B) (iii).

Credible testimony, however, can only satisfy an asy-

lum applicant’s burden of proof if it is persuasive and if it

refers to sufficient facts to demonstrate that the appli-

cant is a refugee. INA § 208(b)(1)(B)(ii). As the Court

finds Respondent’s testimony to be persuasive, the only

question remaining is whether he has demonstrated that

he is a refugee under the INA — ie. that he is an alien

who is unable or unwilling to return to his home country

because of persecution, or a well-founded fear of perse-

cution, on account of race, religion, nationality, member-

ship in a particular social group, or political opinion as

defined in the INA. See INA § 101(a)(42)(A).

22a

Respondent’s fear of persecution is based on his

membership in a particular social group, which he de-

fines as “adolescents in El] Salvador who refuse to join

the gangs of that country because. of their opposition to

the gangs’ violent and criminal activities.” See Respon-

dent’s Memorandum of Law and Facts in Support of

Application for Asylum, Withholding of Removal,

and/or Withholding Under the Convention Against

Torture. Therefore, the question of whether he meets

the definition of a refugee under the INA hinges on

whether he has a well-founded fear of persecution on ac-

count of a protected ground.

Respondent described a continual pattern of harass-

ing behavior beginning at an early age. And while these

experiences were surely unpleasant, they do not, stand-

ing alone, rise to the level of persecution. However, the

two incidents that Respondent described in detail,

coupled with the continual harassment, do lead this

Court to find that Respondent has been persecuted by

the gangs in El Salvador. In September 2003, while

walking home from school, Respondent was approached

by several gang members and threatened with death.

During a second incident, in the spring of 2004, Respon-

dent was viciously beaten to the point of unconscious-

ness. Considering the serious nature of these events and

the escalation in violence that was displayed toward

Respondent, the Court readily concludes that Respon-

dent has been the victim of persecution in the past.

However, merely establishing past persecution is not

sufficient. Respondent must also demonstrate that this

past persecution was inflicted on account of his claimed

membership in a particular social group. 8 U.S.C.

§ 1101(a)(42)(A). To make such a showing, he must (1)

specify the particular social group, (2) show that he is a

23a

member of that group, and (3) show that he has a well-

founded fear of persecution based on his membership in

that group. Lopez-Soto v. Ashcroft, 383 F.3d 228 (4th

Cir. 2004). This Court recognizes that Respondent’s

membership need only be a motive for the persecution.

See Matter of S-P-, 21 I&N Dec. 486 (BIA 1996). How-

ever, such motivation must be shown by a preponderance

of the evidence. 8 C.F.R. § 208.13.

Membership in a particular social group must be de-

fined by a characteristic that either is beyond the power

of an individual to change or is so fundamental to indi-

vidual] identity or conscience that it ought not be re-

quired to be changed. Persecution on account of mem-

bership in a particular social group has been interpreted

to mean “persecution that is directed toward an individ-

ual who is a member of a group of persons all of whom

share a common, immutable characteristic. The shared

characteristic might be an innate one such as sex, color,

or kinship ties, or in some circumstances it might be a

shared past experience such as former military leader-

ship or land ownership. The particular kind of group

characteristic that will qualify under this construction

remains to be determined on a case-by-case basis. How-

ever, whatever the common characteristic that defines

the group, it must be one that the members of the group

either cannot change, or should not be required to

change because it is so fundamental to their individual

identities or consciences. Only when this is the case does

the mere fact of group membership become something

comparable to the other four grounds of persecution un-

der the Act, namely, something that either is beyond the

power of an individual to change or that is so fundamen-

tal to [his] identity or conscience that it ought not be re-

quired to be changed. By construing ‘persecution on ac-

count of membership in a particular social group’ in this

24a

manner, we preserve the concept that refuge is re-

stricted to individuals who are either unable by their own

actions, or as a matter of conscience should not be re-

quired, to avoid persecution.” Matter of Acosta, 19 I&N

Dec. 211 (B1A 1985).

As noted above, Respondent defines his social group

as “adolescents in E] Salvador who refuse to join the

gangs of that country because of their opposition to the

gangs’ violent and criminal activities.” The Court, how-

ever, finds that this claimed social group is too tenuous

to qualify as such under the INA. Accepting Respon-

dent’s designation would create a situation wherein vir-

tually every non-criminal adolescent in E] Salvador that

was targeted by gang members would qualify for asylum

in the United States. The Court declines to extend the

definition of ‘particular social group’ to such extremes.

Nonetheless, assuming arguendo that adolescents as

Respondent describes them can constitute a particular

social group under the INA, Respondent has failed to

show that he was persecuted on account of his alleged

membership in this group.

Respondent distinguishes his persecution from other

accounts of forced recruitment by stating that he was

persecuted because of his opposition to the gangs’ violent

and criminal activities, not simply because he refused to

join. The Court, however, finds this to be a distinction

without a difference. Further, there is no independent

evidence of record to support Respondent’s assertion

that he was persecuted for something more than his

simple refusal to join a gang.

Indeed, the persecutors did not mention Respon-

dent’s moral beliefs during either of the more serious at-

tacks. Further, the report of Luis Rodriquez suggests

that the gangs of Central America do persecute those

25a

who refuse to join, but it does not say that the gangs do

so for any reason other than the refusal itself. See Group

Exhibit 2, Subexhibit C. The affidavit of Alex Sanchez

indicates that “[a]lmost all young people in El Salvador

are at risk of being targeted for recruitment by the

gangs, but those who already have some ties with the

gang are particularly expected to join. If an individual

has been friends with members of a gang, they will think

he is taking advantage of their protection and loyalty or

feel disrespected if he does not eventually join the gang.”

See Group Exhibit 2, Subexhibit D. This is why Mauri-

cio (and his gang) targeted Respondent — not because

they were attempting to overcome Respondent’s aver-

sion to criminal activity.

Without more, this Court cannot find that there is

any nexus between Respondent’s persecution and his

membership in the alleged social group. The situation at

hand in Central America is distressing, and Respon-

dent’s case is, indeed, a sympathetic one. However, the

Court is bound by the law. Because Respondent has

failed to demonstrate a sufficient nexus, it cannot be said

that the past persecution he faced was on account of a

protected ground: For the same reason, the Court finds

he is unable to establish that future persecution on ac-

count of a protected ground is likely. His applications for

asylum pursuant to INA § 208 and withholding of remov-

al pursuant to INA § 241(b)(3) are, thercfore, denied.

As a prerequisite to relief under the Convention

Against Torture, an applicant must show that the tor-

ture feared would be inflicted by or with the acquies-

cence of a public official or other person acting in an offi-

cial capacity; therefore, protection does not extend to

persons that fear entities that a government is unable to

control. Lopez-Soto v. Ashcroft, 383 F.3d 228 (4th Cir.

26a

2004); Matter of S-V-, 22 I&N Dec. 1306 (BIA 2000).

This standard requires an applicant to do more than

show that officials are aware of the activity but are po-

werless to stop it: Id. Because Respondent fears torture

at the hands of criminal gangs rather than a public offi-

cial or other person acting in an official capacity, his

claim under the Convention Against Torture fails. Ac-

cordingly, such relief is denied.

IV. Conclusion

The Court has found that Respondent has failed to

meet his burden of proof with regard to his applications

for asylum, withholding of removal under INA

§ 241(6)(3), and withholding under the Convention

Against Torture. Although Respondent’s claim is credi-

ble, he has failed to show that persecution or torture

would result if removed to El Salvador. Therefore, the

applications for asylum under INA § 208, withholding of

removal under INA § 241(b)(3), and withholding of re-

moval under the Convention Against Torture are de-

nied. An appropriate order is attached.

27a

ORDER

It is this 4th day of October 2006, by the United

States Immigration Court, sitting at Baltimore, Mary-

land,

ORDERED:

I. that the application for asylum pursuant to INA

§ 208 is DENIED;

II. that the application for withholding of removal

pursuant to INA § 241(b)(3) is DENIED;

III. that the applications for withholding of removal,

pursuant to Article 3 of the Convention

Against Torture is DENIED; and

IV. that Respondent be REMOVED to El Salvador

as charged.

Lisa Darnell

United States Immigration Judge

Baltimore, Maryland

OCT 4 2006