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Cruz v. Holder, 10-1357 (2010)

Court: Court of Appeals for the Fourth Circuit Number: 10-1357 Visitors: 44
Filed: Oct. 04, 2010
Latest Update: Feb. 21, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 10-1357 JOSE MEDARDO SANCHEZ CRUZ; JOSE ISRRAEL SANCHEZ CRUZ, a/k/a Jose Israel Sanchez Cruz, Petitioners, v. ERIC H. HOLDER, JR., Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals. Submitted: September 27, 2010 Decided: October 4, 2010 Before WILKINSON, MOTZ, and SHEDD, Circuit Judges. Petition denied by unpublished per curiam opinion. Linette Tobin, LAW OFFICE OF LINETTE TOB
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                               UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT


                               No. 10-1357


JOSE MEDARDO SANCHEZ CRUZ; JOSE ISRRAEL SANCHEZ CRUZ, a/k/a
Jose Israel Sanchez Cruz,

                Petitioners,

          v.

ERIC H. HOLDER, JR., Attorney General,

                Respondent.


On Petition for Review of an Order of the Board of Immigration
Appeals.


Submitted:   September 27, 2010              Decided:   October 4, 2010


Before WILKINSON, MOTZ, and SHEDD, Circuit Judges.


Petition denied by unpublished per curiam opinion.


Linette Tobin, LAW OFFICE OF LINETTE TOBIN, Mt. Rainer,
Maryland, for Petitioners.       Tony West, Assistant Attorney
General, Ada E. Bosque, Senior Litigation Counsel, Matthew A.
Spurlock, Office of Immigration Litigation, UNITED STATES
DEPARTMENT OF JUSTICE, Washington, D.C., for Respondent.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

             Jose     Medardo          Sanchez       Cruz    and    Jose   Isrrael       Sanchez

Cruz, natives and citizens of El Salvador, petition for review

an   order      of        the    Board     of        Immigration       Appeals      (“Board”)

dismissing      their       appeal       from     the       immigration       judge’s      order

denying their applications for asylum, withholding from removal

and withholding under the Convention Against Torture.                                    We deny

the petition for review.

             The      INA       authorizes       the    Attorney       General      to    confer

asylum on any refugee.                 8 U.S.C. § 1158(a) (2006).              It defines a

refugee as a person unwilling or unable to return to his native

country    “because         of     persecution          or    a    well-founded      fear     of

persecution          on     account        of        race,        religion,     nationality,

membership in a particular social group, or political opinion.”

8 U.S.C. § 1101(a)(42)(A) (2006).                            “Persecution involves the

infliction      or    threat       of    death,        torture,      or    injury    to    one’s

person or freedom, on account of one of the enumerated grounds.

. . .”       Qiao Hua Li v. Gonzales, 
405 F.3d 171
, 177 (4th Cir.

2005) (internal quotation marks and citations omitted).

             An alien “bear[s] the burden of proving eligibility

for asylum,” Naizgi v. Gonzales, 
455 F.3d 484
, 486 (4th Cir.

2006);    see   8     C.F.R.       §    1208.13(a)          (2010),    and    can   establish

refugee status based on past persecution in his native country

on account of a protected ground.                            8 C.F.R. § 1208.13(b)(1)

                                                 2
(2010).     “An applicant who demonstrates that he was the subject

of past persecution is presumed to have a well-founded fear of

persecution.”       Ngarurih v. Ashcroft, 
371 F.3d 182
, 187 (4th Cir.

2004).

            Without     regard     to    past    persecution,      an       alien    can

establish    a    well-founded     fear    of    persecution    on      a    protected

ground.      
Ngarurih, 371 F.3d at 187
.   The   well-founded           fear

standard contains both a subjective and an objective component.

The objective element requires a showing of specific, concrete

facts that would lead a reasonable person in like circumstances

to fear persecution.         Gandziami-Mickhou v. Gonzales, 
445 F.3d 351
, 353 (4th Cir. 2006).           “The subjective component can be met

through     the    presentation     of     candid,     credible,     and       sincere

testimony demonstrating a genuine fear of persecution . . . .

[It] must have some basis in the reality of the circumstances

and be validated with specific, concrete facts . . . and it

cannot be mere irrational apprehension.”                Qiao Hua 
Li, 405 F.3d at 176
(internal quotation marks and citations omitted).

            A     determination    regarding      eligibility    for        asylum    or

withholding of removal is affirmed if supported by substantial

evidence on the record considered as a whole.                      INS v. Elias-

Zacarias, 
502 U.S. 478
, 481 (1992).                Administrative findings of

fact, including findings on credibility, are conclusive unless

any reasonable adjudicator would be compelled to decide to the

                                          3
contrary.       8 U.S.C. § 1252(b)(4)(B) (2006).                         Legal issues are

reviewed de novo, “affording appropriate deference to the BIA’s

interpretation of the INA and any attendant regulations.”                                     Li

Fang Lin v. Mukasey, 
517 F.3d 685
, 691-92 (4th Cir. 2008).                               This

court    will       reverse      the   Board       only   if    “the     evidence    .    .   .

presented was so compelling that no reasonable factfinder could

fail    to     find    the       requisite     fear       of   persecution.”         Elias-

Zacarias, 502 U.S. at 483-84
; see Rusu v. INS, 
296 F.3d 316
, 325

n.14 (4th Cir. 2002).               Furthermore, “[t]he agency decision that

an   alien     is     not    eligible      for      asylum     is    ‘conclusive     unless

manifestly contrary to the law and an abuse of discretion.’”

Marynenka v. Holder, 
592 F.3d 594
, 600 (4th Cir. 2010) (quoting

8 U.S.C. § 1252(b)(4)(D) (2006)).

               We    conclude      that    substantial         evidence     supports      the

Board’s and the immigration judge’s finding that the Petitioners

failed    to    establish         that    their      fear      of   persecution     was       on

account of a protected ground.                     See 
Elias-Zacarias, 502 U.S. at 482
.     Even if the Petitioners’ opposition to joining one of the

gangs in their community can be considered a political opinion,

substantial evidence supports the finding that they failed to

show    persecution         or    fear    of   persecution          on   account    of   that

political opinion.            Similarly, the evidence supports the finding

that neither was targeted or will be targeted on account of

their membership in a particular social group.

                                               4
           Accordingly,   we   deny       the   petition   for     review.      We

dispense   with   oral    argument    because       the    facts     and     legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                             PETITION DENIED




                                      5

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