Cesar Mauricio Gomez-Benitez v. U.S. Atty. Gen.

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
FILED
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
SEPT 22, 2008
No. 07-13999
THOMAS K. KAHN
CLERK

D. C. Docket No. A97-741-544

CESAR MAURICIO GOMEZ-BENITEZ,

Petitioner,

versus

U.S. ATTORNEY GENERAL,

Respondent.

Petition for Review of a Decision of the
Board of Immigration Appeals

(September 22, 2008)

Before DUBINA, HULL and FAY, Circuit Judges.

PER CURIAM:
 Petitioner Cesar Mauricio Gomez-Benitez (“Gomez”) seeks review of the

Board of Immigration Appeals’ (“BIA”) final order affirming the Immigration

Judge’s (“IJ”) denial of Gomez’s application for asylum, withholding of removal,

and withholding of removal under the United Nations Convention Against Torture

(“CAT”).

The issues presented on appeal are (1) whether the BIA’s determination,

that “Honduran schoolboys who conscientiously refuse to join gangs” did not

constitute a “particular social group,” was a permissible construction of the

controlling statute; (2) whether substantial evidence supports the BIA’s

determination that Gomez was not persecuted on account of his political opinion;

and (3) whether substantial evidence supports the BIA’s determination that Gomez

was not entitled to withholding of removal under the CAT.

We review the administrative fact findings of the agency “under the highly

deferential substantial evidence test.” Silva v. U.S. Att’y Gen., 448 F.3d 1229,

1236 (11th Cir. 2006) (quoting Adefemi v. Ashcroft, 386 F.3d 1022, 1026-27 (11th

Cir. 2004) (en banc)). “[W]e review the record evidence in the light most

favorable to the agency’s decision and draw all reasonable inferences in favor of

that decision.” Ruiz v. U.S. Att’y Gen., 440 F.3d 1247, 1255 (11th Cir. 2006)

(citation omitted). The agency’s factual findings are conclusive “unless the record

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demonstrates that any reasonable adjudicator would be compelled to conclude to

the contrary.” Fahim v. U.S. Att’y Gen., 278 F.3d 1216, 1218 (11th Cir. 2002)

(internal quotations and citation omitted). We review legal determinations de

novo. Li v. U.S. Att’y Gen., 488 F.3d 1371, 1374 (11th Cir. 2007).

To qualify for asylum or withholding of removal, Gomez must establish that

he has a well-founded fear that, if removed to his home country, he will be

persecuted “on account of race, religion, nationality, membership in a particular

social group, or political opinion.” Id.; 8 U.S.C. §§ 1101(a)(42)(A),

1158(b)(1)(A), 1231(b)(3)(A). Gomez argues that, if he returns to Honduras, he

will face persecution because of his membership in the “particular social group”

comprised of “Honduran schoolboys who conscientiously refuse to join gangs.”

To qualify as a “particular social group” under the Immigration and

Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., a group must be defined by a

“shared characteristic . . . that the members of the group either cannot change, or

should not be required to change because it is fundamental to their individual

identities or consciences.” Castillo-Arias v. U.S. Att’y Gen., 446 F.3d 1190, 1193,

1196 (11th Cir. 2006) (citing Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA

1985), overruled on other grounds by Matter of Mogharrabi, 19 I. & N. Dec. 439,

447 (BIA 1987)) (internal quotation marks omitted). We have also held that the

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group must have sufficient “social visibility,” and that the “particular social

group” persecution basis should not be defined so broadly that it becomes “a

catch-all for all groups who might claim persecution.” Castillo-Arias, 446 F.3d at

1197.

In Castillo-Arias, we held that noncriminal informants working against a

Columbian drug cartel were not a “particular social group” under the INA. Id. at

1196-98. We reasoned, inter alia, that (1) noncriminal informants opposing drug

cartels lacked the requisite social visibility, (2) the group was too numerous and

inchoate, and (3) even if the group’s members became recognizable after their

activities were disclosed to the cartel, “their defining attribute is their persecution

by the cartel,” and thus recognizing them as members of a “particular social

group” would render that definition a “catch all.” Id. at 1197-98.

Applying this definition of “particular social group,” we conclude that

Gomez cannot show that his group qualifies. Honduran schoolboys who refuse to

join gangs are not a socially visible group, and are, additionally, too numerous and

inchoate. See Matter of S-E-G-, 24 I. & N. Dec. 579, 582-83 (BIA 2008) (stating

that Salvadoran youths who reject or resist membership in MS-13 are neither

socially visible nor part of a group with “particular and well-defined boundaries”);

Matter of E-A-G-, 24 I. & N. Dec. 591, 594-95 (BIA 2007) (“Persons who resist

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joining gangs have not been shown to be part of a socially visible group within

Honduran society.”). Moreover, Gomez’s purported group is so broad and

persecution-defined that recognizing it under the INA would permit the “particular

social group” persecution basis to become a “catch all” ground for all persons

alleging persecution in Honduras who cannot establish refugee status under any of

the other recognized grounds. Accordingly, we agree with the BIA’s

determination that “Honduran schoolboys who conscientiously refuse to join

gangs” does not constitute a “particular social group,” and conclude it was a

permissible construction of the controlling statute.

Gomez next argues that substantial evidence does not support the BIA’s

determination that he was not persecuted on account of his political opinion. We

agree with the government that the record evidence in this case is not so

overwhelming that a reasonable fact finder would be compelled to conclude that

Gomez was persecuted on account of his political opinion.

The record demonstrates that the MS-13 were trying to recruit Gomez, and

his encounters with the MS-13 were due to his refusal to join the gang. Moreover,

there is no record evidence demonstrating that Gomez was politically active

against gangs or that he possessed a political opinion or had one imputed to him

by the MS-13 gang members. Thus, because the record contains substantial

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evidence to support the BIA’s determination, the petition for review is due to be

denied.

Finally, Gomez argues that he is entitled to CAT relief because it is more

likely than not, based on the threats and assaults he had already experienced by the

MS-13, that he will be subjected to severe pain or suffering if he is returned to

Honduras.

We conclude from the record that the BIA correctly denied CAT relief.

First, the physical violence Gomez suffered does not meet the definition of torture.

Second, although Gomez’s testimony was credible that the police did nothing, the

record evidence demonstrates that the Honduran government has taken steps to

address gang violence. Because the record evidence does not compel the finding

that the Honduran government acquiesced in the arguably mental torture Gomez

experienced, Gomez cannot establish his entitlement to CAT relief. Accordingly,

we deny Gomez’s petition for CAT relief.

PETITION FOR REVIEW DENIED.

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