Edilberto Antonio-Fuentes v. Eric H. Holder, Jr.

764 F.3d 902, 2014 U.S. App. LEXIS 16188, 2014 WL 4116696
CourtCourt of Appeals for the Eighth Circuit
DecidedAugust 22, 2014
Docket13-2290
StatusPublished
Cited by3 cases

This text of 764 F.3d 902 (Edilberto Antonio-Fuentes v. Eric H. Holder, Jr.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Edilberto Antonio-Fuentes v. Eric H. Holder, Jr., 764 F.3d 902, 2014 U.S. App. LEXIS 16188, 2014 WL 4116696 (8th Cir. 2014).

Opinion

COLLOTON, Circuit Judge.

Edilberto Antonio-Fuentes petitions for review of a decision of the Board of Immigration Appeals denying his application for asylum, withholding of removal, and relief under the Convention Against Torture. We deny the petition for review.

I.

Fuentes is a native and citizen of El Salvador, who entered the United States in November 2008. In March 2010, the government initiated removal proceedings against him. In June 2011, Fuentes filed an application for asylum and related relief. At a hearing before an immigration judge, Fuentes testified to the circumstances of his departure from El Salvador. He testified that his primary reason for coming to the United States was “to help his family so they can have a better life.” He said that he left his parents, eleven siblings, wife, and children in El Salvador, because “there is not a lot of work.”

Fuentes described three experiences with gangs in El Salvador. First, in May 2005, Fuentes’s cousin, Saul Elias Guerrero, with whom Fuentes resided, was shot and killed by gang members. According to Fuentes, Guerrero had been a member of a gang, but had attempted to leave the gang and to avoid criminal activity. The gang members shot Guerrero because they recognized him as a member of a rival gang. Salvadoran police investigated Guerrero’s slaying, but were unable to identify the gunmen.

Second, Fuentes had a run-in with gang members while on a bus. The gang members, asserting that Fuentes previously had thrown rocks at them, held a gun to his head and chest and threatened him. Before the event escalated further, several girls came along, and the gang members left Fuentes alone in order to rob the girls.

Third, gang members threatened another of Fuentes’s cousins, who owned a beauty shop where two of Fuentes’s sisters worked, and demanded $6,000. As a result of this threat, Fuentes’s cousin relocated her beauty shop thirty miles away to avoid further harassment.

Fuentes testified that he had never been recruited by a gang and that none of his immediate family members is a gang member. He told the immigration judge that he disagrees with the gang’s activities and that he is afraid of the Salvadoran gangs because “they take everything from you.” He fears that if he were returned to El Salvador, gang members would recognize that he was returned from the United States and would believe that he is wealthy.

The immigration judge found that Fuentes was credible, but noted that the three incidents described by Fuentes were “the only criminal contacts by the gangs against [him] and his family.” The judge found that Fuentes’s “wife and children have never been hurt or bothered by the gangs.” The immigration judge also explained that Fuentes “believes that the police response to the gang issues is slow but that is due in part to [the fact that] El Salvador has ‘a lot of crime and they are very busy.’ ”

The immigration judge determined that Fuentes’s application for asylum was untimely. On withholding of removal, the judge concluded that Fuentes was ineligi *904 ble for relief because he could not show a well-founded fear of future persecution on account of a protected ground. The immigration judge reasoned that Fuentes did not establish membership in a particular social group that faced persecution, and he “failed to testify or elucidate any political opinion that he holds that would justify a claim for relief under the [Immigration and Nationality Act].” Regarding Fuentes’s application for relief under the Convention Against Torture, the judge found that Fuentes did not establish that he was likely to be tortured upon return to El Salvador or that the Salvadoran police condone or participate in criminal activities.

On administrative appeal, the Board affirmed the immigration judge’s decision and dismissed Fuentes’s appeal. After concluding that Fuentes’s application for asylum was untimely, the Board also agreed with the immigration judge that Fuentes failed to establish eligibility for withholding of removal based on fear of persecution due to membership in a particular social group. Relying on decisions of this court, the Board concluded that none of Fuentes’s asserted social groups — “men in El Salvador who fear gang violence because of a former gang member who is also their family member,” a “member of a household of such a person who was killed by a gang,” and “individuals returning to El Salvador after working in the United States who may be perceived to be wealthy” — was recognized as a “particular social group” under the Act. See Matnl-Hemandez v. Holder; 685 F.3d 707 (8th Cir.2012); Constanza v. Holder, 647 F.3d 749 (8th Cir.2011). The Board concluded that Fuentes waived his argument that he feared persecution based on political opinion because he failed to assert it before the immigration judge. Finally, the Board agreed with the immigration judge that Fuentes was not eligible for relief under the Convention Against Torture.

Fuentes petitions for review of the Board’s decision. We review the Board’s decision for substantial evidence on the record as a whole, Menendez-Donis v. Ashcroft, 360 F.3d 915, 918 (8th Cir.2004), and will not disturb its findings of fact “unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see INS v. Elias-Zacarias, 502 U.S. 478, 481 & n. 1, 483-84, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Insofar as the Board adopted the reasoning of the immigration judge, we consider the two decisions together. Falaja v. Gonzales, 418 F.3d 889, 894 (8th Cir.2005).

II.

Fuentes argues that the Board erred in concluding that he was ineligible for withholding of removal. An alien is entitled to withholding of removal if he shows a clear probability that his life or freedom would be threatened in the country of removal based on one of several protected grounds, including membership in a particular social group or on political opinion. 8 U.S.C. § 1231(b)(3); 8 C.F.R. § 1208.16(b).

Fuentes asserts that the Board erred in ruling that he failed to identify a “particular social group” that is recognized under the Immigration and Nationality Act. He contends that “men in El Salvador who fear gang violence because of a former gang member who is also their family member” is a particular social group, and that his life or freedom would be threatened in El Salvador based on his membership in that group. The Board defines “particular social group” as one with “particular and well-defined boundaries” and “a recognized level of social visibility.” Matter of S-E-G-,

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764 F.3d 902, 2014 U.S. App. LEXIS 16188, 2014 WL 4116696, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edilberto-antonio-fuentes-v-eric-h-holder-jr-ca8-2014.