FILED
NOT FOR PUBLICATION JUN 29 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSE MARVIN CRUZ, No. 09-72903
Petitioner, Agency No. A090-648-877
v.
MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 13, 2011
San Francisco, California
Before: O’SCANNLAIN and BYBEE, Circuit Judges, and HAYES, District
Judge.**
An Immigration Judge ordered Jose Marvin Cruz removed from the United
States to his native El Salvador, and the Board of Immigration Appeals (BIA)
affirmed. Cruz petitions this Court for review of the BIA’s decision. Cruz admits
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable William Q. Hayes, U.S. District Judge for the District
of Southern California, sitting by designation.
that he is a removable alien, but seeks review of the BIA’s denial of his claims for
withholding of removal and protection under the Convention Against Torture
(CAT). Alternatively, Cruz asks us to remand to the BIA with instructions to stay
removal proceedings while Cruz moves to vacate his criminal convictions in
Nevada state court in light of Padilla v. Kentucky, 130 S. Ct. 1473 (2010).
Cruz’s withholding of removal claim fails because Cruz has not shown that
he is likely to be persecuted on account of his membership in a “particular social
group” within the meaning of 8 U.S.C. § 1231(b)(3). The group Cruz identifies,
“Salvadoran-American men who have received gang tattoos, who [have] associated
with – and thus have unique knowledge of – gang members, and who chose never
to join a gang, but nevertheless are perceived as gang members,” is too broad and
too amorphous to qualify as a “particular social group” for withholding of removal
purposes.
Cruz’s CAT claim is denied because he has not shown that the evidence
compels the conclusion that he is likely to be tortured if he returns to El Salvador,
as is required to overcome the BIA’s contrary factual finding. See INS v.
Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). Finally, we decline to remand to the
BIA so that Cruz can pursue Padilla claims in Nevada state court because Cruz has
not shown that it is likely that he would succeed in such claims.
2
Cruz’s petition for review is
DENIED.
3