     Case: 13-60455      Document: 00512541063         Page: 1    Date Filed: 02/21/2014




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 13-60455
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         February 21, 2014
JOSE CATALINO RAMIREZ GALDAMEZ,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 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. A089 933 916


Before KING, DAVIS and ELROD, Circuit Judges.
PER CURIAM: *
       Jose Catalino Ramirez Galdamez, a citizen of El Salvador, petitions this
court for review of the decision of the Board of Immigration Appeals (BIA)
dismissing his appeal from the Immigration Judge’s (IJ) order denying his
application for withholding of removal. He challenges the BIA’s determination
that he is not entitled to asylum or withholding of removal on the basis that he
failed to establish past persecution or a fear of future persecution on account


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                  No. 13-60455

of membership in a particular social group. The Government asserts that
Galdamez did not file a timely asylum application, conceded that he was
ineligible for asylum, and made no argument to the IJ that extraordinary
circumstances existed that were directly related to his failure to meet the filing
deadline.
      We have jurisdiction over Galdamez’s request for review of the denial of
his application for relief from removal only if he has “exhausted all
administrative remedies available to [him] as of right” on these issues. 8
U.S.C. § 1252(d)(1). “A remedy is available as of right if (1) the petitioner could
have argued the claim before the BIA, and (2) the BIA has adequate
mechanisms to address and remedy such a claim.” Omari v. Holder, 562 F.3d
314, 318-19 (5th Cir. 2009). We must examine the basis of our jurisdiction sua
sponte if necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987).
      The record reflects that although Galdamez did not argue to the IJ that
he was entitled to asylum, prior to the removal hearing, he filed an application
for asylum and withholding of removal. We have jurisdiction over Galdamez’s
appeal from the denial of asylum insofar as Galdamez filed an application for
asylum and withholding of removal, and he presented both his asylum and
withholding of removal arguments to the BIA. See Omari, 562 F.3d at 320-21.
      To qualify for the discretionary relief of asylum, an alien must be a
“refugee.” Orellana-Monson v. Holder, 685 F.3d 511, 518 (5th Cir. 2012); 8
C.F.R. § 1208.13(a). “A refugee is a person (1) who is outside of his country
and is unable or unwilling to return because of persecution or a well-founded
fear of persecution and (2) who has demonstrated that “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 (internal quotation marks and citation omitted) (emphasis in



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                                  No. 13-60455

the original). The standard for obtaining withholding of removal is even higher
than the standard for asylum; it requires “a showing that it is more likely than
not that the alien’s life or freedom would be threatened by persecution on one
of those grounds.” Id. The failure to establish a well-founded fear for asylum
eligibility also forecloses eligibility for withholding of removal. Id.
      Galdamez’s arguments for asylum and for withholding of removal are
premised on his assertion that he is a member of a particular social group
(young men who defy forced recruitment by the gangs in El Salvador). To
establish persecution based on membership in a particular social group,
Galdamez 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.” Id. (internal quotation marks and citations omitted). The BIA
considers the following factors to determine “whether a particular social group
exists: (1) whether the group’s shared characteristic gives the members the
requisite social visibility to make them readily identifiable in society and
(2) whether the group can be defined with sufficient particularity to delimit its
membership.”     Id. at 519 (internal quotation marks and citation omitted)
(emphasis in the original).
      We accord deference, pursuant to Chevron, U.S.A., Inc. v. Natural
Resources Defense Council, Inc., 467 U.S. 837 (1984), to the BIA’s
interpretation of the term “particular social group.” Orellana-Monson, 685
F.3d at 521. In Orellana-Monson, we applied the BIA’s test and determined
that men who were recruited but refused to join a Salvadoran gang were not a
“particular social group” for purposes of asylum and withholding of removal
because they lacked the requisite social visibility and particularity. Id. at 521-
22. As in Orellana-Monson, Galdamez fails to demonstrate that the members



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                                 No. 13-60455

of his proposed group share a characteristic that gives them social visibility or
that the group can be “defined with sufficient particularity to delimit its
membership.” Id. at 519. We reach the same conclusion in this case.
      The petition for review is DENIED.




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