     Case: 09-60770     Document: 00511250994          Page: 1    Date Filed: 10/01/2010




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                           October 1, 2010
                                     No. 09-60770
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

LUCAS DEL ROSARIO ROMERO-ARGUETA,

                                                   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. A094 917 492


Before WIENER, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
        Lucas Del Rosario Romero-Argueta, a native and citizen of El Salvador,
conceded removability and filed an application for asylum and withholding of
removal under 8 U.S.C. § 1158(b)(1)(B)(i), based on past persecution.                      He
petitions for review of the Board of Immigration Appeals’ (BIA) dismissal of his
appeal from the Immigration Judge’s (IJ) order denying his application.
        An immigration court’s findings of fact are reviewed for substantial
evidence. E.g., Wang v. Holder, 569 F.3d 531, 536 (5th Cir. 2009); Mikhael v.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-60770

INS, 115 F.3d 299, 302 (5th Cir. 1997). That an alien is not eligible for asylum
or withholding of removal are findings of fact reviewed for substantial evidence.
Zhang v. Gonzales, 432 F.3d 339, 344-45 (5th Cir. 2005). Under this standard,
reversal is not warranted unless the evidence not only supports a contrary
conclusion, but compels it. See Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir.
2006). Deference is accorded the BIA’s interpretation of immigration statutes
“unless the record reveals compelling evidence that the BIA’s interpretation is
incorrect”. Mikhael, 115 F.3d at 302.
      To qualify for asylum, an alien must demonstrate either past persecution
or a well-founded fear of future persecution on account of one of five protected
grounds: (1) race, (2) religion, (3) nationality, (4) membership in a particular
social group, or (5) political opinion. 8 U.S.C. § 1101(a)(42)(A); see Tesfamichael
v. Gonzales, 469 F.3d 109, 113 (5th Cir. 2006). To qualify for withholding of
removal, a petitioner “must demonstrate a ‘clear probability’ of persecution on
the basis of” one of the five grounds for asylum. 8 C.F.R. § 208.16(b); see Chen,
470 F.3d at 1138. Because this is a higher burden than for asylum, a petitioner’s
failure to establish entitlement to asylum necessarily defeats a claim for
withholding of removal. Chen, 470 F.3d at 1138.
      Romero contends he has been persecuted, and fears future persecution, on
the basis of his membership in a “particular social group”:        young, single,
Salvadoran men who do not wish to join the Maras gang. “To establish that he
is a member of a ‘particular social group,’ an applicant must show that he was
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.’”        Mwembie v.
Gonzales, 443 F.3d 405, 414-15 (5th Cir. 2006). Romero’s contention, based on
characteristics of youth, nationality, and gender, is too generalized and lacks the
specific characteristics needed to distinguish him as a member of a “particular
social group”. See Sanchez-Trujillo v. INS, 801 F.2d 1571, 1576-77 (9th Cir.

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1986); see also Perez-Molina v. Gonzales, 193 F. App’x 313, 315 (5th Cir. 2006);
Serat-Ajanel v. Gonzales, 207 F. App’x 468, 470 (5th Cir. 2006) (both
unpublished).
      Romero did not assert to the BIA that the IJ proceedings violated his due
process rights; therefore, this court lacks jurisdiction to consider the issue. See
Omari v. Holder, 562 F.3d 314, 318-19 (5th Cir. 2009). To the extent he contends
the BIA failed to afford him due process because his testimony was sufficient to
carry his burden of proof, his contentions are without merit. See Sanchez-
Trujillo, 801 F.2d at 1576-77. The evidence does not compel reversal of the BIA’s
dismissal of Romero’s claim for asylum.         See Chen, 470 F.3d at 1134.
Accordingly, he cannot meet the higher burden for withholding of removal.
Id. at 1138.
      A majority of Romero’s brief here consists of assertions regarding the BIA’s
purported failure to grant his request for remand or referral to a three-member
panel based on the Rule of Lenity, various regulations, and erroneous credibility
determinations by the IJ. Romero made no such request to the BIA. These
assertions are divorced from the record and have plainly been lifted from prior
briefs filed in this court by attorney Pablo Rodriguez. At certain points, his
briefs refer to the wrong petitioner and wrong BIA board member. Rodriguez is
CAUTIONED that he will be subject to sanctions if he files any future briefs
containing such deficiencies.
      PETITION DENIED.




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