Gerson Martinez-Nataren v. Matthew Whitaker ( 2018 )

Case: 17-60842 Document: 00514766909 Page: 1 Date Filed: 12/19/2018
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 17-60842 FILED
Summary Calendar December 19, 2018
Lyle W. Cayce
Clerk
GERSON MARTINEZ-NATAREN,
Petitioner
v.
MATTHEW G. WHITAKER, ACTING U.S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A206 793 404
Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM: *
Gerson Martinez-Nataren, a native and citizen of Honduras, petitions
for review of the decision of the Board of Immigration Appeals (BIA) dismissing
his appeal from the immigration judge’s (IJ) denial of asylum, withholding of
removal, and relief under the Convention Against Torture. He contends that
the BIA erred in determining that he failed to establish his eligibility for
asylum and withholding of removal. We generally review only the BIA’s
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
Case: 17-60842 Document: 00514766909 Page: 2 Date Filed: 12/19/2018
No. 17-60842
decision, but “may review the IJ’s findings and conclusions if the BIA adopts
them.” Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009).
Martinez-Nataren contends that he has made the requisite showing of
persecution on account of his membership in a particular social group, which
he identified before the IJ as “Honduran Christian men who fear the gangs
because of delinquency.” He asserts that his youth, his gender, and his
religious beliefs are immutable characteristics that provide his proposed social
group with sufficient particularity.
Because the term “particular social group” is not defined by the
Immigration and Nationality Act, the agency’s interpretation of the term is
entitled to deference where, as here, the BIA has applied the social distinction
and particularity test to determine that a proposed group does not qualify as a
“particular social group.” See Orellana-Monson v. Holder, 685 F.3d 511, 517
(5th Cir. 2012). As was true in Orellana-Monson, Martinez-Nataren’s
purported group lacks particularity because it “encompasses a wide swath of
society crossing many political orientations, lifestyles, and identifying factors.”
Id. at 522. Moreover, he fails to establish that his purported group has social
visibility or distinction because he points to no evidence demonstrating that
Honduran Christian men who fear gangs would be perceived by society as a
distinct group. See id. The BIA’s determination that Martinez-Nataren’s
proposed social group fails the particularity and social distinction tests is not
arbitrary or capricious and is supported by substantial evidence. See id. at
521-22.
Noting that he was confronted and threatened by gang members while
he was carrying a Bible, Martinez-Nataren contends that there is a nexus
between the threats he received from gang members and his evangelical
Christian religion. Because the evidence establishes that he was merely
2
Case: 17-60842 Document: 00514766909 Page: 3 Date Filed: 12/19/2018
No. 17-60842
threatened, but not physically harmed, he cannot establish past persecution.
See Tesfamichael v. Gonzales, 469 F.3d 109, 116 (5th Cir. 2006).
Additionally, substantial evidence supports the agency’s determination
that Martinez-Nataren failed to establish a nexus between his claimed fear of
persecution and his religion. To make the requisite showing,
Martinez-Nataren was required to establish that religion “will be at least one
central reason” for his persecution. 8 U.S.C. § 1158(b)(1)(B)(i). As both the IJ
and the BIA noted, Martinez-Nataren essentially testified that the gangs did
not limit their harassment and threats to religious people. Such evidence
supports the IJ’s determination, noted by the BIA, that the gangs acted to
enrich themselves, rather than to persecute Martinez-Nataren on account of
his religion. Even if some record evidence is construed as supporting
Martinez-Nataren’s claim of religious persecution, the BIA’s factual finding
that he is not entitled to asylum is conclusive because he fails to show that any
reasonable adjudicator would be compelled to conclude to the contrary. See
Sharma v. Holder, 729 F.3d 407, 411 (5th Cir. 2013). Because
Martinez-Nataren has not shown that he is entitled to asylum, he cannot
establish that he meets the higher standard for withholding for removal. See
Majd v. Gonzales, 446 F.3d 590, 595 (5th Cir. 2006).
Finally, Martinez-Nataren contends that his asylum claim warranted
special consideration, pursuant to guidance from the United Nations High
Commissioner for Refugees (UNHCR), because he was a child. Such guidance,
however, is not binding and does not render the BIA’s order unsustainable. See
Kane v. Holder, 581 F.3d 231, 242 (5th Cir. 2009). Further, we will not consider
the UNHCR guidance as it is not in the administrative record. See id.PETITION FOR REVIEW DENIED.
3