Case: 12-60066 Document: 00512126619 Page: 1 Date Filed: 01/28/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 28, 2013
No. 12-60066
Summary Calendar Lyle W. Cayce
Clerk
MAYNOR VILLANUEVA-MONTOYA, also known as Maynor Villanueva,
Petitioner
v.
ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,
Respondent
Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A088 837 645
Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
Petitioner Maynor Villanueva-Montoya, a native and citizen of Honduras,
has filed a petition for review of the order of the Board of Immigration Appeals
(BIA) dismissing his appeal of the denial of his application for asylum,
withholding of removal, and protection under the Convention Against Torture
(CAT). Villanueva-Montoya contends that the BIA erred in determining that he
was statutorily ineligible for such relief. We deny his petition.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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We review the order of the BIA, but we consider the underlying decision
of the immigration judge only if it affected the BIA’s decision. Orellana-Monson
v. Holder, 685 F.3d 511, 517 (5th Cir. 2011). We review the BIA’s factual
determination that an alien is not eligible for asylum, withholding of removal,
or CAT relief under the substantial evidence standard. Chen v. Gonzales, 470
F.3d 1131, 1134 (5th Cir. 2006). Under that standard, we do not reverse the
BIA’s decision unless the evidence not only supports a contrary conclusion but
compels it. Id. “The applicant has the burden of showing that the evidence is
so compelling that no reasonable factfinder could reach a contrary conclusion.”
Id.
The Attorney General has the discretion to grant asylum to refugees. 8
U.S.C. § 1158(b)(1); Orellana-Monson, 685 F.3d at 518. A person qualifies as a
refugee if he (1) is outside of his country and is unable or unwilling to return to
that country or avail himself of its protection because of persecution or a
well-founded fear of persecution and (2) demonstrates that his “race, religion,
nationality, membership in a particular social group, or political opinion was or
will be at least one central reason for the persecution.” Orellana-Monson, 685
F.3d at 518 (emphasis omitted) (internal quotation marks and citation omitted).
Villanueva-Montoya does not allege past persecution. “To establish a
well-founded fear of future persecution, an applicant must demonstrate a
subjective fear of persecution, and that fear must be objectively reasonable.”
Chen, 470 F.3d at 1135 (internal quotation marks and citations omitted).
Villanueva-Montoya contends that he qualifies as a refugee on the basis
of his membership in a particular social group and his nationality. To establish
membership in a particular social group for purposes of asylum, the applicant
must show that he is a member “of a group of persons that share a common
immutable characteristic that they either cannot change or should not be
required to change because it is fundamental to their individual identities or
consciences.” Orellana-Monson, 685 F.3d at 518 (internal quotation marks and
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No. 12-60066
citation omitted). The BIA’s interpretation of the term “particular social group”
is entitled to deference under Chevron U.S.A., Inc. v. Natural Res. Def. Council,
Inc., 467 U.S. 837, 842-44 (1984). Orellana-Monson, 685 F.3d at 520-21.
Villanueva-Montoya has not shown that the BIA erred in determining that
his proffered social group — Americanized individuals returning to Honduras
from the United States who are perceived as potentially wealthy –– lacks the
requisite particularity to be cognizable for purposes of asylum. See
Orellana-Monson, 685 F.3d at 518-21; see also Castillo-Enriquez v. Holder, 690
F.3d 667, 668 (5th Cir. 2012) (providing that wealthy Salvadorians do not qualify
as a protected social group). Additionally, Villanueva-Montoya’s assertion that
persecutors in Honduras would “impute on him American nationality” because
of his American mannerisms is speculative and insufficient to show that the BIA
erred in determining that he is statutorily ineligible for asylum. In light of his
failure to demonstrate, for asylum purposes, that he had a well-founded fear of
persecution because of a statutorily enumerated ground, Villaneuva-Montoya
cannot satisfy the higher standard required for establishing eligibility for
withholding of removal. See Chen, 470 F.3d at 1138.
Regarding his claim under the CAT, Villanueva-Montoya asserts that the
Honduran government is not well equipped to prevent the perils faced there by
individuals from the United States and that the documentary evidence in the
record discloses police participation in unlawful activities in Honduras. The
reports he cited do not compel the conclusion that he would more likely than not
face torture by, or with the consent or acquiescence of, a government official
after returning to Honduras. See Chen, 470 F.3d at 1139; 8 C.F.R. § 208.18(a)(1).
The petition for review is DENIED.
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