                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                                                                 March 18, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                  Clerk of Court
                               TENTH CIRCUIT



 NORMAN ADONAY CISNEROS-
 DIAZ,

             Petitioner,
 v.                                                     No. 10-9533
                                                    (Petition for Review)
 ERIC H. HOLDER, JR., Attorney
 General of the United States,

             Respondent.


                           ORDER AND JUDGMENT *


Before HARTZ, BRORBY, and TYMKOVICH, Circuit Judges.


      An immigration judge (IJ) found Norman Adonay Cisneros-Diaz removable

and denied his application for asylum. The Board of Immigration Appeals (BIA)

dismissed his appeal of the IJ’s decision and he petitions for review. We have

jurisdiction under 8 U.S.C. § 1252(a) and deny the petition.



      *
       After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent except under the doctrines of law of the case, res judicata, and
collateral estoppel. It may be cited, however, for its persuasive value consistent
with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
I.    BACKGROUND

      Mr. Cisneros-Diaz was born in Zacatecoluca, El Salvador. In 2003 his

mother came to the United States, and on April 11, 2006, he arrived in the United

States with his two brothers by walking across the border. He testified as follows

before the IJ: He left El Salvador because he was afraid of the Mara Salvatrucha

gang. About a week and a half before he left, four members of the gang had

threatened that if he did not join them, they could kill him. He refused to join and

walked away. The gang members did not take any action against him afterwards

because he soon left for the United States. Also, two days before he left El

Salvador, the gang killed his best friend, whom they had confused with a member

of another gang. Mr. Cisneros-Diaz did not ask for help from the police after

either incident, because he thought “the police [in El Salvador are] very corrupt”

and would not have helped him, and because he feared that the gang would try to

kill him if he went to the police. Cert. Admin. R. at 117.

      Mr. Cisneros-Diaz was charged with being subject to removal as an alien

present in the United States without being admitted or paroled. At a proceeding

before the IJ on February 6, 2007, he admitted removability but requested relief in

the form of asylum. After hearing evidence on June 26, 2008, the IJ denied his

application for asylum and ordered him removed to El Salvador. The BIA

dismissed his appeal.




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II.   DISCUSSION

      A single member of the BIA issued a nonsummary decision dismissing

Mr. Cisneros-Diaz’s appeal. We review the decision based on the grounds

articulated by the BIA decision and grounds raised in the IJ decision that were

relied upon by the BIA. See Sidabutar v. Gonzales, 503 F.3d 1116, 1123 (10th

Cir. 2007). We review purely legal questions de novo, Hayrapetyan v. Mukasey,

534 F.3d 1330, 1335 (10th Cir. 2008), but “administrative findings of fact are

conclusive unless any reasonable adjudicator would be compelled to conclude to

the contrary.” 8 U.S.C. § 1252(b)(4)(B). Whether an alien has demonstrated

persecution is a question of fact. See Hayrapetyan, 534 F.3d at 1335.

      To be eligible for a discretionary grant of asylum, Mr. Cisneros-Diaz must

first establish that he is a refugee. See 8 U.S.C. § 1158(b)(1). The Immigration

and Nationality Act (INA) defines refugee as:

      any person who is outside any country of such person’s
      nationality . . . and who is unable or unwilling to return to, and is
      unable or unwilling to avail himself or herself of the protection of,
      that 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). Mr. Cisneros-Diaz does not contend that he has been

persecuted in the past, but asserts that he has a “well-founded fear” that he will be

persecuted if he returns to El Salvador because of his membership in a particular

social group. His brief in this court states that the BIA accurately described “the


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particular social group to which [he] claims membership [as] ‘young men who

have resisted criminal gang recruitment [in El Salvador].’” Aplt. Br. at 13 n.6

(parenthesis omitted).

      “[A] finding of persecution requires the infliction of suffering or harm upon

those who differ (in race, religion, or political opinion) in a way regarded as

offensive and must entail more than just restrictions or threats to life and liberty.

Such persecution may be inflicted by the government itself, or by a

non-governmental group that the government is unwilling or unable to control.”

Wiransane v. Ashcroft, 366 F.3d 889, 893 (10th Cir. 2004) (citation and internal

quotation marks omitted). If the persecution is by a nongovernmental group, the

alien has the burden of establishing that the government is unwilling or unable to

control the group. See Bartesaghi-Lay v. INS, 9 F.3d 819, 822 (10th Cir. 1993);

8 C.F.R. § 1208.13(a) (“The burden of proof is on the applicant for asylum to

establish that he or she is a refugee[.]”).

      To be a well-founded fear of future persecution, the fear

      must be both subjectively genuine and objectively reasonable. An
      asylum applicant has an objectively well-founded fear of persecution
      if (1) she may be singled out for persecution upon returning to her
      country of origin, or (2) there is a pattern or practice in that country
      of persecution of a group of persons similarly situated to the
      applicant on account of race, religion, nationality, membership in a
      particular social group, or political opinion, and the applicant
      belongs to and identifies with that group.




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Tulengkey v. Gonzales, 425 F.3d 1277, 1281 (10th Cir. 2005) (citation, brackets,

ellipses, and internal quotation marks omitted). For asylum purposes, “it need not

be shown that the situation will probably result in persecution, but it is enough

that persecution is a reasonable possibility.” Hayrapetyan, 534 F.3d at 1335

(internal quotation marks omitted).

      Mr. Cisneros-Diaz argues both that he may be singled out for persecution

upon his return and that there is a pattern of persecution of people in his claimed

social group. The BIA affirmed the IJ’s denial of relief on two grounds. First,

the BIA said that Mr. Cisneros-Diaz had “failed to establish that young men who

have resisted criminal gang recruitment qualifies as a cognizable social group”

within the meaning of the INA. Cert. Admin. R. at 4. Second, the BIA endorsed

the IJ’s finding that Mr. Cisneros-Diaz’s “testimony did not show that the

government is unwilling or unable to control gang violence.” Id. at 58. The IJ

observed that Mr. Cisneros-Diaz did not attempt to enlist the help of the police in

protecting himself and so lacked firsthand knowledge of what protection the

police could offer; and the IJ stated that the record showed that the El Salvadoran

government “is making a reasonable attempt” to protect its citizens. Id. at 59.

      We affirm on the second ground. We cannot say that on this record “any

reasonable adjudicator would be compelled to conclude . . . contrary” to the

findings of the IJ affirmed by the BIA. 8 U.S.C. § 1252(b)(4)(B). We need not




                                         -5-
address the first ground because Mr. Cisneros-Diaz would have to prevail on both

grounds to obtain relief in this court.

      Mr. Cisneros-Diaz notes that in the agency proceeding he said that he was

afraid that “the [Salvadoran] authorities have been infiltrated and co-opted by

gang members” and that he believes that those authorities “are simply incapable

of protecting his particular social group.” Reply Br. at 16–17. He argues:

      Neither the Judge, the Board, nor the government have ever
      addressed whether the efforts they refer to are actually sufficient to
      afford targeted individuals some semblance of protection. Though
      reports and articles in the record clearly demonstrate that the
      Salvadoran government is just overmatched, it is most likely beyond
      the purview of this Court to make such a finding when neither of the
      tribunals below even considered the question in its proper framing.

Id. at 17. His opening brief asserts:

      The record includes clear and consistent testimony, an expert
      affidavit, comprehensive reports from non-profit human rights
      organizations, and articles from the international press[, which]
      provide[] a more comprehensive picture of the human rights situation
      (than the single State Department report relied upon by the Judge),
      reporting in detail not only on the government’s efforts, but on the
      utterly inadequate results of those efforts.

Aplt. Br. at 30 (footnote omitted) .

      We are not persuaded. Mr. Cisneros-Diaz bore the evidentiary burden to

establish that the government is unwilling or unable to protect him. See

Bartesaghi-Lay, 9 F.3d at 822. On this record, it was reasonable for the IJ and

BIA to determine that he had not satisfied that burden. As already pointed out, he

provided no first-hand information to support his fear. And the IJ reasonably read

                                          -6-
the authoritative reports on El Salvador as likewise not supporting it. In

particular, the IJ referred to a State Department issue paper on youth gangs in El

Salvador, which states:

      [T]he Salvadoran government does not have a policy or practice of
      refusing assistance to persons who receive threats or are otherwise
      victims of gang violence. Additionally, the U.S. Embassy in San
      Salvador has no information to suggest that persons have been denied
      assistance from police authorities in relation to complaints they have
      made relating to gang violence or threats from gang members. . . .
      The Salvadoran government treats gang violence as a high priority,
      has expended considerable sums to address the issue, and has
      received technical assistance from the U.S. and other countries to
      improve its law enforcement capabilities.

Cert. Admin. R. at 133–34. The report later states that the “Salvadoran

government’s strong-hand law enforcement policy may be having a noticeable

effect on gang behavior, and at least in the short term, in controlling gang

violence.” Id. at 139. A reasonable adjudicator presented with the evidence at

Mr. Cisneros-Diaz’s hearing would not be compelled to reach a conclusion

contrary to the IJ’s.




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III.   CONCLUSION

       We DENY the petition for review and GRANT the motion to proceed in

forma pauperis.

                                    ENTERED FOR THE COURT


                                    Harris L Hartz
                                    Circuit Judge




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