Guzman-Cubias v. Holder, (2nd Cir. 2009)

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08-3704-ag

Guzman-Cubias v. Holder

BIA

Straus, IJ

A99 524 398

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS

FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT'S LOCAL RULE 32.1

AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH A

LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT LEAST

ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE NOTATION:

"(SUMMARY ORDER)." A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT SUMMARY ORDER

TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED

BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE WHICH IS

PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT

HTTP://WWW.CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY OF THE

ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO THAT DATABASE AND THE

DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

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 20 th day of April, two thousand nine.

PRESENT:

HON. JOSEPH M. McLAUGHLIN,

HON. JOSÉ A. CABRANES,

HON. BARRINGTON D. PARKER,

Circuit Judges.

JOSE ARNOLDO GUZMAN-CUBIAS,

Petitioner,

v. 08-3704-ag

NAC

ERIC H. HOLDER JR., ATTORNEY GENERAL, *

Respondent.

FOR PETITIONER: Nancy E. Martin, Wethersfield, Connecticut.

FOR RESPONDENT: Gregory G. Katsas, Assistant Attorney General; Michele Gorden Latour, Assistant Director; Brendan P. Hogan, Office of Immigration Litigation, 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 Jose Arnoldo Guzman-Cubias, a native and citizen of El Salvador, seeks review of a June 26, 2008 order of the BIA affirming the November 6, 2006 decision of Immigration Judge ("IJ") Michael W. Straus denying Guzman Cubias's applications for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). In re Jose Arnoldo Guzman-Cubias, No. A99 524 398 (B.I.A. Jun.

26, 2008), aff'g No. A99 524 398 (Immig. Ct. Hartford, Nov.

6, 2006). We assume the parties' familiarity with the underlying facts and procedural history of the case.

When the BIA issues an opinion that fully adopts the IJ's decision, we review the IJ's decision. See Mei Chai Ye v. U.S. Dep't of Justice, 489 F.3d 517, 523 (2d Cir. 2007).

We review the agency's factual findings under the substantial evidence standard. 8U.S.C. § 1252(b)(4)(B); see also Corovic v. Mukasey, 519 F.3d 90, 95 (2d Cir. 2008).

We review de novo questions of law and the application of law to undisputed fact. See, e.g., Salimatou Bah v.

Mukasey, 529 F.3d 99, 110 (2d Cir. 2008).

As an initial matter, because Guzman-Cubias did not challenge the IJ's denial of his CAT claim either before the BIA or this Court, we deem any such argument abandoned. See Gui Yin Liu v. INS, 508 F.3d 716, 723 n.6 (2d Cir. 2007).

We find no error in the agency's denial of Guzman Cubias's claims for asylum and withholding of removal.

Guzman-Cubias has not shown that those who resist gang recruitment in El Salvador (or any of the other variations on this group that he offers) constitute a "particular social group" for purposes of asylum and withholding of removal. See 8U.S.C. §§ 1101(a)(42), 1231(b)(3).

"[M]embership in a purported social group requires a certain level of `social visibility.'" Ucelo-Gomez v.

Mukasey, 509 F.3d 70, 73 (2d Cir. 2007). Guzman-Cubias's claims fail this test because he has not demonstrated that members of his purported group "possess some fundamental characteristic in common which serves to distinguish them in the eyes of a persecutor--or in the eyes of the outside world in general." Id. (internal quotation marks omitted); see also In re S-E-G-, 24 I. & 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).

Although he relies on his lack of tattoos and other gang symbols, Guzman-Cubias has not shown that he and others without such symbols are perceived by gang members or others in El Salvador as a discrete group. Thus, the IJ did not err in denying asylum and withholding of removal.

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 By:

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Attorney General Eric H. Holder Jr. is automatically substituted for former Attorney General Michael B. Mukasey as respondent in this case.

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