Quinteros-Mendoza v. Holder, (4th Cir. 2009)

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PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FERNANDO QUINTEROS-MENDOZA,

Petitioner,

v.

No. 07-1544

ERIC H. HOLDER, JR., Attorney

General,

Respondent.

On Petition for Review of an Order

of the Board of Immigration Appeals.

Argued: December 5, 2008

Decided: February 11, 2009

Before MICHAEL, MOTZ, and KING, Circuit Judges.

Petition for review denied by published opinion. Judge Motz

wrote the opinion, in which Judge Michael and Judge King

joined.

COUNSEL

ARGUED: Jason Alexander Dzubow, MENSAH, SHOE-

MAKER & DZUBOW, P.L.L.C., Washington, D.C., for Peti-

tioner. Eric Warren Marsteller, UNITED STATES

DEPARTMENT OF JUSTICE, Washington, D.C., for

Respondent. ON BRIEF: Peter D. Keisler, Assistant Attorney

General, M. Jocelyn Lopez Wright, Assistant Director, Margaret Perry, Senior Litigation Counsel, UNITED STATES DEPARTMENT OF JUSTICE, Office of Immigration Litigation, Washington, D.C., for Respondent.

OPINION DIANA GRIBBON MOTZ, Circuit Judge: An Immigration Judge (IJ) denied Fernando QuinterosMendoza asylum and withholding of removal. In a brief written opinion, a single member of the Board of Immigration Appeals (BIA) affirmed. Quinteros-Mendoza petitions for review, asserting that the BIA erred in refusing to refer his case to a three-member panel and that the single member who did review his case erred in denying him relief. Although we disagree with the Government's contention that we lack jurisdiction to review the BIA's refusal to refer a case to a threemember panel, the BIA's subsequent precedential decision has eliminated the need for such three-judge review in the case at hand. Moreover, because the BIA's decision in this case accords with its subsequent precedential decision, we deny the petition for review.

I.

In April 2004, a gang known as The Maras began targeting Quinteros-Mendoza in El Salvador. The first incident occurred when three gang members attacked and beat him after he took his girlfriend home. This harassment continued on a regular basis, between three to five times per week. In each instance, the gang members sought to extort money from Quinteros-Mendoza.

After a number of attacks at various locations, the gang members confronted Quinteros-Mendoza three times at a Sev enth Day Adventist Church in El Salvador, which QuinterosMendoza had attended regularly since 1987. The gang demanded money but also threatened to hurt QuinterosMendoza if he continued to attend church. Sometime after the third attack at his church, Quinteros-Mendoza capitulated and ceased attending services. The violence and threats did not stop. Although Quinteros-Mendoza called the police on many occasions throughout this ordeal, their response was uniformly ineffectual.

In the face of this harassment, Quinteros-Mendoza fled to the United States and in September 2004 entered without authorization. When the government placed him in removal proceedings, he filed for asylum, alleging that the gang members had persecuted him based on his religion and political opinion and that they would kill him if he returned to El Salvador. Family members confirmed continuing threats against his life.

The IJ found Quinteros-Mendoza's testimony credible and sufficiently corroborated. She further found that the level of harm he feared constituted persecution and that his fear of persecution upon return to El Salvador was well founded.

Applying the recently enacted REAL ID Act of 2005, Pub. L.

No. 109-13,

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