Fuentes-Hernandez v. Holder , 411 F. App'x 438 ( 2011 )

10-128-ag
Fuentes-Hernandez v. Holder
BIA
DeFonzo, IJ
A99 515 609
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 1st day of March, two thousand eleven.
PRESENT:
ROBERT A. KATZMANN,
PETER W. HALL,
GERARD E. LYNCH,
Circuit Judges.
_____________________________________
ELMER ALEXANDER FUENTES-HERNANDEZ,
Petitioner,
v. 10-128-ag
NAC
ERIC H. HOLDER JR., UNITED STATES
ATTORNEY GENERAL,
Respondent.
_____________________________________
FOR PETITIONER: Andrew P. Johnson, New York, NY.
FOR RESPONDENT: Tony West, Assistant Attorney
General; Douglas E. Ginsburg,
Assistant Director; Franklin M.
Johnson, Jr., Trial Attorney, Office
of Immigration Litigation, Civil
Division, United States Department
of Justice, Washington, D.C.
UPON DUE CONSIDERATION of this petition for review of a
decision of the Board of Immigration Appeals (“BIA”), it is
hereby ORDERED, ADJUDGED, AND DECREED, that the petition for
review is DENIED.
Petitioner Elmer Alexander Fuentes-Hernandez, a native
and citizen of El Salvador, seeks review of a December 22,
2009, decision of the BIA affirming the August 14, 2008,
decision of Immigration Judge (“IJ”) Paul A. DeFonzo denying
Fuentes-Hernandez’s applications for asylum and withholding
of removal. In re Elmer Alexander Fuentes-Hernandez, No.
A099 515 609 (B.I.A. Dec. 22, 2009), aff’g No. A099 515 609
(Immig. Ct. N.Y. City, Aug. 14, 2008). We assume the
parties’ familiarity with the underlying facts and
procedural history of the case.
When, as in this case, the BIA agrees with the IJ and
merely supplements the IJ’s decision, we review the decision
of the IJ as supplemented by the BIA. See Yan Chen v.
Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The standards
of review are well-established. See, e.g., Salimatou Bah v.
Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).
The agency did not err in denying Fuentes-Hernandez’s
application for asylum and withholding of removal because he
failed to establish a nexus between the harm he fears and
one of the protected grounds enumerated in the Immigration
and Nationality Act (“INA”). See 8 U.S.C. §§ 1101(a)(42);
1158(b); 1231(b)(3). For applications governed by the
amendments to the INA made by the REAL ID Act of 2005, “the
applicant must establish that race, religion, nationality,
membership in a particular social group, or political
opinion was or will be at least one central reason for
persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i);
see also Matter of C-T-L-, 25 I. & N. Dec. 341, 343 (BIA
2010); Matter of J-B-N- & S-M-, 24 I. & N. Dec. 208, 212
(BIA 2007). In order to demonstrate persecution on account
of a protected ground, the “applicant must [] show, through
direct or circumstantial evidence, that the persecutor’s
motive to persecute arises from the applicant’s political
belief [or another protected ground].” Yueqing Zhang v.
Gonzales, 426 F.3d 540, 545 (2d Cir. 2005) (citing INS v.
Elias-Zacarias, 502 U.S. 478, 483 (1992)); see also In re
S-P-, 21 I. & N. Dec. 486, 494-95 (BIA 1996).
2
Contrary to Fuentes-Hernandez argument, the agency did
not err in determining that his claimed social group –
individuals who resisted gang recruitment in El Salvador –
does not constitute a “particular social group” for purposes
of the INA because of its lack of particularity and social
visibility. See Ucelo-Gomez v. Mukasey, 509 F.3d 70, 73 (2d
Cir. 2007)(per curiam); Matter of S-E-G-, 24 I. & N. Dec.
579, 582-88 (BIA 2008). The BIA has held that neither
Salvadoran youth who have been subjected to, have rejected
or resisted recruitment efforts by the Mara Salvatrucha
(“MS-13”) gang nor the family members of such Salvadoran
youth constitute a “particular social group.” Matter of
S-E-G-, 24 I. & N. at 582-88. The BIA explained that
applicants who feared “retaliation by the MS-13 for their
resistance to recruitment efforts” failed to establish “that
the MS-13 gang in El Salvador imputed, or would impute on
them, an anti-gang political opinion.” Id. at 589. The BIA
thus relied on its factual determination that the applicants
had not shown “that the MS-13 gang members who pursued
[them] had any motives other than increasing the size and
influence of their gang.” Id. While the BIA’s decision in
Matter of S-E-G- is not binding on us, its analysis is
instructive. See Santos-Lemus v. Mukasey, 542 F.3d 738,
745-46 (9th Cir. 2008) (analyzing the BIA’s decision in
Matter of S-E-G-).
In this case, although Fuentes-Hernandez claims in his
brief to have suffered persecution because of his membership
in a family considered to be “traitors” by his alleged
persecutors, the record does not compel the conclusion that
he was targeted for that reason or otherwise targeted for
recruitment because he possessed a belief or characteristic
the gang sought to overcome. See Matter of Acosta, 19 I. &
N. Dec. 211, 222 (BIA 1985), overruled, in part, on other
grounds, INS v. Cardoza-Fonseca, 480 U.S. 421 (1987).
Fuentes-Hernandez fails to demonstrate that the motive
behind the recruitment efforts was for anything “other than
increasing the size and influence of [the] gang.” Matter of
S-E-G-, 24 I. & N. Dec. at 589. Indeed, his application
repeatedly asserted that he was pressured to either join the
gang or pay money to the gang, including during the one
incident in which the gang members told him that he came
from a family of “traitors” and that they knew his uncle was
in the military.
3
Because the agency reasonably found that Fuentes-
Hernandez was not targeted for any reason other than to
increase the size of the gang or because of his refusal to
join, his claim did not bear the requisite nexus to a
protected ground. The agency did not err in denying his
applications for asylum and withholding of removal. See 8
U.S.C. § 1252(b)(4)(B); see also Manzur v. U.S. Dep’t of
Homeland Security, 494 F.3d 281, 289 (2d Cir. 2007).
For the foregoing reasons, the petition for review is
DENIED. As we have completed our review, any stay of
removal that the Court previously granted in this petition
is VACATED, and any pending motion for a stay of removal in
this petition is DISMISSED as moot. Any pending request for
oral argument in this petition is DENIED in accordance with
Federal Rule of Appellate Procedure 34(a)(2), and Second
Circuit Local Rule 34(b).
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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