Urbina-Mejia v. Holder

• Decision Date: 05 March 2010
• Docket Number: No. 09-3567.,09-3567.
• Citation: 597 F.3d 360
• Parties: Jose Luis URBINA-MEJIA, Petitioner-Appellant, v. Eric H. HOLDER, Jr., Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

597 F.3d 360

Jose Luis URBINA-MEJIA, Petitioner-Appellant, v. Eric H. HOLDER, Jr., Respondent-Appellee.

No. 09-3567.

United States Court of Appeals, Sixth Circuit.

Submitted: August 24, 2009.

Decided and Filed: March 5, 2010.

ON BRIEF: Jamie B. Naini, The Law Offices of Jamie B. Naini, Memphis, Tennessee, for Petitioner. John W. Blakeley, United States Department of Justice, Washington, D.C., for Respondent.

Before: MARTIN, SILER, and MOORE, Circuit Judges.

MARTIN, J., delivered the opinion of the court, in which MOORE, J., joined. SILER, J. (p. 370), delivered a separate opinion concurring with Parts I., II., and III.C. of the majority and concurring in the judgment.

OPINION

BOYCE F. MARTIN, JR., Circuit Judge.

Jose Luis Urbina-Mejia seeks review of a Board of Immigration Appeals decision affirming an immigration judge's denial of his applications for withholding of removal under section 241 of the Immigration and Nationality Act, 8 U.S.C. § 1231. The Board of Immigration Appeals erred in finding that Urbina-Mejia was not a member of a particular social group for which he would likely be subject to persecution should he be returned to Honduras. He was a member of the particular group of former gang members, which is impossible to leave save by rejoining the organization. However, Urbina-Mejia failed to show that evidence compelled a finding that he had sufficiently corroborated his testimony with evidence or that he had not committed serious nonpolitical crimes while a member of the gang before coming to the United States. He was thus statutorily ineligible for withholding of removal. We therefore DENY Urbina-Mejia's petition.

I.

A. Factual Background

Urbina-Mejia is a native and citizen of Honduras. He arrived in the United States in April 2002 at the age of seventeen to live with his mother in Memphis, Tennessee, where she has been a legal resident for eleven years. He has no criminal record in the United States, has regularly attended church for the last five years, and had been gainfully employed.

On October 4, 2006, Department of Homeland Security agents filed a Notice to Appear in Immigration Court. The Notice charged Urbina-Mejia with removability for violating section 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA) as an alien who entered the United States without being admitted or paroled. During a master calendar hearing, Urbina-Mejia admitted the factual allegations of having entered the United States without being admitted or paroled and conceded removability as charged. However, at a March 13, 2007 hearing, he filed an application for asylum and withholding of removal under the INA and the Convention Against Torture.

Urbina-Mejia asserts that he left Honduras and entered the United States at that time to escape gang life. Urbina-Mejia joined the 18th Street gang in Honduras in 1998 when he was fourteen years old. He asserts that he was inducted at a school party when members of the gang informed him that he was to join their gang that night and told him to go to the football field where they "persuaded" him to join by continuously beating him for eighteen seconds. Following the beating, he was a member of the gang, and he remained so for three years. He testifies that he does not have gang tattoos because he was in the bottom level of the gang and only upper level gang members were tattooed with gang symbols. He demonstrated several gang handsigns on the stand.

He asserts that as a gang member he was told that he would be killed if he did not do as he was told. He testified that he was forced to accompany other gang members as they stopped people and demanded their money and valuables, encounters that sometimes ended in Urbina-Mejia and fellow gang members hitting their victims. He testified that he used a baseball bat to intimidate, and sometimes to harm, the victims. He testified that the 18th Street gang leader taught him to use a nine millimeter handgun in case of altercations with a rival gang, the MS-13 gang. While Urbina-Mejia shot the gun into the air to scare members of the MS-13 gang and was once shot in the foot by a member of MS-13, Urbina-Mejia testified that he never seriously injured any rival gang member and that he was otherwise not physically harmed. He testified that he regretted his criminal activities but worried that he would be killed if he did not participate.

Urbina-Mejia also testified that his father has never encountered any difficulty with gangs although he continues to live in the same home and work in the same business. Urbina-Mejia's eight siblings have been robbed by members of the gang, but they have been otherwise unharmed.

B. Immigration Judge's Decision

Following a hearing on the merits, the immigration judge issued a decision on September 4, 2007, denying Urbina-Mejia's application for asylum, withholding of removal, and related remedies. The immigration judge determined that Urbina-Mejia was statutorily ineligible for asylum because he failed to file his asylum application within one year of the time he entered the United States, and he otherwise failed to establish extraordinary circumstances or changed country conditions.

As to Urbina-Mejia's claim for withholding of removal, the immigration judge found him credible but denied his claim, finding that he had failed to establish that any mistreatment or fear of mistreatment derived from gang membership or former gang membership was on account of one of the five protected grounds under the INA. Additionally, the immigration judge found that Urbina-Mejia did not sufficiently corroborate his testimony with additional evidence. The immigration judge specifically noted the lack of correspondence from his father and siblings in Honduras, with whom he is in regular contact, or testimony from his mother, with whom he lives.

The immigration judge found Urbina-Mejia to be statutorily ineligible for withholding of removal under INA § 241(b)(3)(B)(iii) because there were "serious reasons to believe that [he] committed a serious nonpolitical crime" in Honduras, as Urbina-Mejia had testified to committing serious crimes while a member of the 18th Street gang. Although Urbina-Mejia argued that he was coerced into committing these crimes, the immigration judge concluded that he possessed a "fair amount of autonomy" in that he shared in the proceeds of his crimes and carried a firearm.

The immigration judge concluded that Urbina-Mejia failed to establish that he would more likely than not be tortured "because of the acquiescence by the government of Honduras or of public officials showing their `wilful blindness.'" Thus, the immigration judge denied Urbina-Mejia's claims and ordered him removed to Honduras. Urbina-Mejia timely appealed this decision to the Board on September 21, 2007, arguing that it was an abuse of discretion for the immigration judge not to approve the application for withholding of removal.

C. Board of Immigration Appeals Decision

On April 21, 2009, the Board of Immigration Appeals dismissed Urbina-Mejia's appeal, affirming the immigration judge's decision pursuant to 8 C.F.R. § 1003.1(e)(5). The Board went on to agree specifically with the immigration judge that Urbina-Mejia had failed to establish that he would be harmed on account of membership in a particular social group. The Board held that, under Matter of E-A-G, 24 I. & N. Dec. 591 (BIA 2008), gang membership is not an immutable characteristic so fundamental to Urbina-Mejia's identity that it would be unconscionable for him to change it. Additionally, the Board held that an expressed opposition to gang activity constituted neither a political opinion nor membership in a particular social group.

The Board also agreed with the immigration judge that Urbina-Mejia's factual admissions provided substantial reason to believe that he had committed serious nonpolitical crimes, which led the Board to reject Urbina-Mejia's arguments that it should balance the seriousness of his crimes against the degree of persecution he would face. The Board further agreed that Urbina-Mejia failed to establish that gang members had coerced him into committing any of the crimes he admitted.

Urbina-Mejia timely sought review.

II.

We generally have jurisdiction to review final orders of removal issued by the Board. See 8 U.S.C. § 1252(a). When the Board adopts the immigration judge's reasoning and supplements the immigration judge's opinion, that opinion, as supplemented by the Board, becomes the basis for review. Zhao v. Holder, 569 F.3d 238, 246 (6th Cir.2009) (citations omitted). Here, as the Board affirmed and supplemented the immigration judge's "well-reasoned decision" (Board Op.), we review the Board's decision as the final agency decision on issues which the Board actually addressed and the immigration judge's decision as final on those issues on which the Board made no findings.

Questions of law are reviewed de novo, but substantial deference is given to the Board's interpretation of the INA and accompanying regulations. Shaya v. Holder, 586 F.3d 401, 405 (6th Cir.2009) (citing Khalili v. Holder, 557 F.3d 429, 435 (6th Cir.2009)). "The [Board's] interpretation of the statute and regulations will be upheld unless the interpretation is `arbitrary, capricious, or manifestly contrary to the statute.'" Id. (citations omitted).

We review both the immigration judge's and the Board's factual findings under the substantial-evidence standard. Id. (citations omitted). We cannot reverse such findings simply because we would have decided them differently. Id. (citing Gishta v. Gonzales, 404 F.3d 972, 978 (6th Cir.2005)). "These findings `are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.'" Id. (quoting 8 U.S.C. § 1252(b)(4)(B)).

III.

Urbina-Mejia requests withholding of removal under INA § 241(b)(3).¹ Withholding of removal is not discretionary, but rather is mandatory if the alien...