Santos-Lemus v. Mukasey

• Decision Date: 08 September 2008
• Docket Number: No. 07-70604.,07-70604.
• Citation: 542 F.3d 738
• Parties: Jose Nelson SANTOS-LEMUS, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.
• Court: U.S. Court of Appeals — Ninth Circuit

542 F.3d 738

Jose Nelson SANTOS-LEMUS, Petitioner, v. Michael B. MUKASEY, Attorney General, Respondent.

No. 07-70604.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 10, 2008.

Filed September 8, 2008.

Stephen Shaiken, Law Office of Stephen Shaiken, San Francisco, CA, for the petitioner.

James E. Grimes, Senior Litigation Counsel, and Erica B. Miles, Office of Immigration Litigation, Washington, D.C., for the respondent.

On Petition for Review of an Order of the Board of Immigration Appeals. Agency No. A98-298-858.

Before: J. CLIFFORD WALLACE and SUSAN P. GRABER, Circuit Judges, and

ROBERT J. TIMLIN,^* District Judge.

WALLACE, Circuit Judge:

Santos-Lemus petitions from the dismissal by the Board of Immigration Appeals (Board) of his appeal from an immigration judge's (IJ) denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We deny the petition.

I.

Santos-Lemus, a native and citizen of El Salvador, entered the United States without inspection on July 18, 2004. Prior to coming to the United States, he lived with his mother in Cologne San Jose la Chalatenango, El Salvador. This town, like many in El Salvador, was plagued by gang violence instigated by the Mara Salvatrucha, or MS-13 (Mara). Santos-Lemus's family had a number of problems with the Mara, beginning in 2000. In July of that year, Santos-Lemus's brother, Jose Ubidio Santos, was aboard a bus when armed Mara held him up at gunpoint, beat him, and took a small amount of money. After the incident, the Mara searched for Jose Ubidio at his school and threatened him. The Mara continued searching for Jose Ubidio for "revenge" because they were unable to take his shoes and clothing when they robbed him. As a result of the Mara's threats, Jose Ubidio left El Salvador later that year.

When the Mara realized Jose Ubidio was gone, they threatened the rest of Santos-Lemus's family. On June 29, 2001, the Mara shot and killed Santos-Lemus's oldest brother, Jose Cecilio Santos. The police did not investigate the murder, but Santos-Lemus testified at the hearing before the IJ that Jose Cecilio had insulted the Mara by asking them why they had a problem with his family. Santos-Lemus also testified he knew that the Mara were the ones who had killed Jose Cecilio because the gang had sent many anonymous notes threatening the family. After Jose Cecilio's murder, the Mara began to harass Santos-Lemus's youngest brother, Luis Alonzo Santos. In August of 2001, the Mara beat Luis, robbed him, and demanded that he have more money for them that afternoon or he would be killed. The Mara came to Santos-Lemus's home looking for Luis; in January of 2002, Luis left El Salvador.

Once his brothers left El Salvador, Santos-Lemus began to receive threats from the Mara. He testified that in March of 2003, he was beaten by a group of two hundred Mara, two of whom insulted him and told him that "the same thing was going to happen ... as had happened to [his] other brother." His elbow was wounded with a knife, and a gang member kicked him in the back. On May 15, 2004, Santos-Lemus received an anonymous threat stating that he would be killed like his brother. He fled the country.

Santos-Lemus testified that during this time, no one in his family filed a complaint with police because they feared that the Mara would retaliate, and because the family believed that the police were involved with the Mara and would do nothing to help the family. He also testified that every time he or his brothers encountered the Mara, they were "looking for money" and that they would bother anyone to get money or jewelry.

Santos-Lemus testified that Luis currently lives with him in California and that Jose Ubidio is in the United States also. He has two sisters and another brother who live in El Salvador in a town two hours away from his home town. None have had problems with the Mara. Santos-Lemus's mother remains in Chalatenango. Santos-Lemus testified that three months prior to the hearing there were men who cut wires around his mother's house and broke pieces off her roof, but there was no evidence that these men were Mara.

Santos-Lemus testified that he feared he would be killed by the Mara if he returned to El Salvador. He stated that he had never insulted or spoken out against the gang, and had never belonged to any type of organization in El Salvador. He stated he did not believe he could safely move to another city in El Salvador because gang members are everywhere.

The day Santos-Lemus entered the United States, the Department of Homeland Security issued him a Notice to Appear that charged him with removability as an alien present in the United States without being admitted or paroled. At an initial hearing on October 27, 2004, Santos-Lemus admitted the factual allegations in the Notice to Appear and conceded his removability; he also indicated that he would apply for asylum, withholding of removal, and CAT protection. He did so, and after he presented testimony and evidence in support of his applications, the IJ found Santos-Lemus credible but issued an oral decision denying asylum, withholding of removal, and CAT protection, and ordering Santos-Lemus removed to El Salvador.

Santos-Lemus timely appealed to the Board, arguing that he established he was persecuted on account of his membership in two particular social groups, (1) his family and (2) "the class of young men in El Salvador who resist the violence and intimidation of gang rule." He also claimed persecution on account of his anti-gang political opinion. Finally, he argued that he established it was more likely than not he would be tortured upon returning to El Salvador. The Board affirmed the IJ's denial of Santos-Lemus's asylum, withholding of removal, CAT claims and issued its own opinion dismissing the appeal.

The Board concluded that Santos-Lemus had not established a well-founded fear of future persecution on account of membership in a particular social group. As for Santos-Lemus's claim that he was persecuted on account of his family membership, the Board reasoned that even if Santos-Lemus's family were to be considered a particular social group, Santos-Lemus "cannot establish a well founded fear based upon his membership in that group because his mother has remained unharmed in El Salvador since his departure." With regard to Santos-Lemus's claim that he was persecuted because he was a member of a social group as "a young man in El Salvador resisting gang violence unstoppable by the police," the Board found this social group not cognizable because it has no "social visibility" and is not therefore a "particular social group" for asylum purposes.

The Board also rejected Santos-Lemus's claim that his resistance to gangs or his "anti-gang opinions" constituted political opinion, reasoning that expression of a fear of harm resulting from general conditions of violence and civil unrest does not substantiate a well-founded fear of persecution on account of political opinion. The Board concluded that because Santos-Lemus had "not established persecution or a well-founded [fear] of persecution `on account of a qualifying ground,' he ... failed to establish his eligibility for asylum" and withholding of removal.

Finally, the Board agreed with the IJ that Santos-Lemus did not establish that he will more likely than not be tortured in El Salvador, observing that his mother, "who is similarly situated to" him, has remained unharmed in El Salvador. Santos-Lemus timely petitioned this court for review of the Board's decision.

II.

We review the Board's legal conclusions de novo. See Azanor v. Ashcroft, 364 F.3d 1013, 1018 (9th Cir.2004). We give Skidmore deference to the Board's "interpretation of the governing statutes and regulations," recognizing that, "`while not controlling upon the courts by reason of their authority, [these interpretations] do constitute a body of experience.'" Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1011, 1014 (9th Cir.2006) (alteration in original) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)). "Factual findings made by the [Board] are reviewed under the deferential substantial evidence standard and will be upheld unless the evidence compels a contrary result." Ochoa v. Gonzales, 406 F.3d 1166, 1169 (9th Cir.2005); see also 8 U.S.C. § 1252(b)(4)(B). Where, as here, "the [Board] conducts a de novo review of an IJ's decision, rather than adopting the IJ's decision as its own, [we] review[ ] the [Board's] decision." Ochoa, 406 F.3d at 1169.

The government argues that we should review the decisions of both the Board and the IJ, and urges affirmance of the Board's decision based on each of the grounds given in the IJ's decision. However, contrary to the government's suggestion, the Board did not incorporate the IJ's decision as its own. For the most part, the Board did not even refer to the IJ's decision or state that it agreed with the IJ. The only place the Board incorporated the IJ's decision was in its CAT analysis, where the Board stated that "we agree with the Immigration Judge that the respondent did not establish that he will more likely than not be tortured in El Salvador" and cited the IJ's opinion. Accordingly, except to the extent the Board incorporated as its own the IJ's decision on Santos-Lemus's CAT claim, our review is confined to the decision of the Board. See Gonzalez v. INS, 82 F.3d 903, 907 (9th Cir.1996); Acewicz v. INS, 984 F.2d 1056, 1059 (9th Cir.1993). The sole issues for review before us with respect to Santos-Lemus's asylum and withholding of removal claims are whether Santos-Lemus showed a well-founded fear of persecution based on his family membership, whether his status as "a young man in El Salvador resisting gang violence" makes him part of a particular social group, and whether his resistance to gangs is a "political opinion."

III.

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