Mendoza-Marquez v. Holder ( 2010 )

REVISED January 27, 2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 24, 2009
No. 08-60956
Summary Calendar Charles R. Fulbruge III
Clerk
MARIA GUADALUPE MENDOZA-MARQUEZ; FERNANDO ALONSO
MONTEROSA-MENDOZA; JORGE ALBERTO ALFARO-MENDOZA;
EDGARGO ALEXANDER CALERO-MENDOZA,
Petitioners
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA Nos. A098 672 188
A098 672 203
A098 672 208
A098 672 215
Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
Maria Guadalupe Mendoza-Marquez and her three children, Fernando
Alonso Monterosa-Mendoza, Jorge Alberto Alfaro-Mendoza, and Edgargo
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 08-60956
Alexander Calero-Mendoza, petition this court for a review of the decision of the
Board of Immigration Appeals (BIA) which overturned the Immigration Judge’s
grant of asylum and ordered the petitioners removed to El Salvador. The BIA
concluded that the petitioners had not met their burden of demonstrating
eligibility for relief because they failed to demonstrate that membership in their
family group, which has been targeted by the Mara Salvatrucha gang in El
Salvador, constituted membership in a “particular social group” under 8 U.S.C.
§ 1101(a)(42)(A). The BIA concluded that the petitioners’ family lacked the
required social visibility to qualify as a particular social group. Accordingly, the
BIA concluded that the petitioners had not demonstrated the required nexus
between their well-founded fear of persecution and a protected ground.
The Secretary of Homeland Security or Attorney General is authorized, in
his discretion, to grant asylum to aliens who qualify as refugees. 8 U.S.C.
§ 1158(b)(1). An alien is a “refugee” when he is outside of his country and “is
unable or unwilling to return to, and is unable or unwilling to avail himself or
herself of the protection of, that 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.” § 1101(a)(42)(A).
The BIA has provided the following factors to consider when determining
whether a “particular social group” exists: (1) “whether the group’s shared
characteristic gives the members the requisite social visibility to make them
readily identifiable in society” and (2) “whether the group can be defined with
sufficient particularity to delimit its membership.” In re A-M-E- & J-G-U-, 24
I. & N. Dec. 69, 69 (BIA 2007). A factor in determining social visibility “is
whether the members of the group are perceived as a group by society.” Matter
of S-E-G-, 24 I. & N. Dec. 579, 586 (BIA 2008). The BIA rejected arguments that
“persons resistant to gang membership” and “[Salvadoran] youths who have
resisted gang recruitment, or family members of such Salvadoran youth”
constitute social groups, after determining that the proposed groups lacked the
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No. 08-60956
required social visibility. In re E-A-G-, 24 I. & N. Dec. 591, 594 (BIA 2007); S-E-
G-, 24 I. & N. Dec. at 582, 587. We will defer to the BIA’s construction of a
statute that it administers if the BIA’s interpretation is reasonable. See Chevron
U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842-44
(1984).
The petitioners argue that their family membership places them in a
particular social group because their family membership is an immutable trait.
The BIA’s holding did not rest on a finding regarding the proposed group’s
immutability. The petitioners do not address the issue of social visibility or any
of the administrative cases cited by the BIA in its analysis of the subject. The
petitioners have therefore failed to meaningfully challenge the BIA’s conclusion
that membership in their family does not constitute membership in a “particular
social group” for asylum. Conclusional and inadequately briefed arguments are
waived. See Chambers v. Mukasey, 520 F.3d 445, 448 n.1 (5th Cir. 2008);
Soadjede v. Ashcroft, 324 F.3d 830, 833 (5th Cir. 2003).
Even if we consider the petitioners’ argument, it lacks merit. The
petitioners have not demonstrated membership in a particular social group or
that the BIA’s interpretation of that term is unreasonable. See Ramos-Lopez v.
Holder, 563 F.3d 855, 859-62 (9th Cir. 2009); Santos-Lemus v. Mukasey, 542 F.3d
738, 745-47 (9th Cir. 2008). The petition for review is DENIED.
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