         09-0783-ag
         Valdez-Munoz v. Holder
                                                                                       BIA
                                                                                  Nelson, IJ
                                                                               A099 678 222
                                                                               A099 678 223
                                                                             A094 824 813
                                  UNITED STATES COURT OF APPEALS
                                      FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
     FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
     APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
     IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
     ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.


 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 27 th day of April, two thousand ten.
 5
 6       PRESENT:
 7                RALPH K. WINTER,
 8                JOSÉ A. CABRANES,
 9                REENA RAGGI,
10                    Circuit Judges.
11       _______________________________________
12
13       DINA YANCI VALDEZ-MUNOZ, FERNANDO
14       PEREZ VILLALOBOS, FERNANDO ALEXIS
15       PEREZ VALDEZ,
16                Petitioners,
17
18                          v.                                  09-0783-ag
19                                                              NAC
20       ERIC H. HOLDER, JR., UNITED STATES
21       ATTORNEY GENERAL,
22                Respondent.
23       ______________________________________
24
25       FOR PETITIONER:                   Jeffrey E. Baron, Baron, Mundie &
26                                         Shelkin, PC, New York, New York.
27
28       FOR RESPONDENT:                   Tony West, Assistant Attorney
29                                         General, Civil Division; Luis E.
30                                         Perez, Senior Litigation Counsel;
31                                         Joseph D. Hardy, Trial Attorney,
32                                         Office of Immigration Litigation,
33                                         United States Department of Justice,
34                                         Washington, D.C.
1        UPON DUE CONSIDERATION of this petition for review of a

2    Board of Immigration Appeals (“BIA”) decision, it is hereby

3    ORDERED, ADJUDGED, AND DECREED that the petition for review

4    is DENIED.

5        The Petitioners Dina Yanci Valdez-Munoz, Fernando Perez

6    Villalobos, and Fernando Alexis Perez Valdez, natives and

7    citizens of El Salvador, seek review of a January 30, 2009

8    order of the BIA affirming the May 18, 2007 decision of

9    Immigration Judge (“IJ”) Barbara A. Nelson denying their

10   applications for asylum, withholding of removal, and relief

11   under the Convention Against Torture (“CAT”).       In re Valdez-

12   Munoz, Nos. A099 678 222, A099 678 223, A094 824 813 (B.I.A.

13   Jan. 30, 2009), aff’g Nos. A099 678 222, A099 678 223, A094

14   824 813 (Immig. Ct. N.Y. City May 18, 2007).       We assume the

15   parties’ familiarity with the underlying facts and

16   procedural history in this case.

17       Under the circumstances of this case, this Court

18   reviews the IJ’s decision as the final agency determination.

19   See Shunfu Li v. Mukasey, 529 F.3d 141, 146 (2d Cir. 2008).

20   The applicable standards of review are well-established.

21   See 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562

22   F.3d 510, 513 (2d Cir. 2009).       The IJ’s finding that


                                     2
1    Villalobos failed to establish a particular social group

2    comprised of Salvadoran individuals who have testified

3    against organized crime is supported by substantial

4    evidence.

5        In arguing that he has demonstrated the requisite

6    visibility necessary to establish membership in a particular

7    social group under the INA, Villalobos relies primarily on

8    language from Matter of C-A-, 23 I&N Dec. 951, 960 (BIA

9    2006), in which the BIA, in analyzing whether confidential

10   informants were a particular social group, noted that

11   “[r]ecognizability or visibility is limited to those

12   informants who are discovered because they appear as

13   witnesses or otherwise come to the attention of cartel

14   members.”   Villalobos’s reliance on this language, however,

15   is misplaced.   Despite recognizing that informants who

16   appear as witnesses are visible to their potential

17   persecutors, the BIA ultimately concluded that neither

18   confidential nor non-confidential informants could establish

19   membership in a particular social group.   See Matter of

20   C-A-, 23 I&N at 960.   In Ucelo-Gomez v. Mukasey, we noted

21   that, “[w]hen the harm visited upon members of a group is

22   attributable to the incentives presented to ordinary


                                   3
1    criminals rather than to persecution, the scales are tipped

2    away from considering those people ‘a particular social

3    group’ within the meaning of the INA.”    509 F.3d 70, 73 (2d

4    Cir. 2007).    Given the 2005 Country Reports on Human Rights

5    Practices for El Salvador which indicate a countrywide

6    problem with the “intimidation of victims and witnesses

7    [which] made it difficult to identify, arrest, and prosecute

8    criminals,” the IJ reasonably found that Villalobos “has not

9    demonstrated that his problem is anything other than a fear

10   of [reprisal] for having been a witness against criminals in

11   a murder trial.”

12          Villalobos has therefore failed to present evidence

13   that “any ‘group,’ as actually perceived” by the criminals

14   he testified against, “is much narrower than the general

15   population” of El Salvador.    Matter of C-A-, 23 I&N at 961.

16   We therefore find no error in the IJ’s determination that

17   Villalobos’s fear was based on nothing more than possible

18   retribution from the individuals against whom he testified,

19   which does not qualify as a protected ground under the INA.

20   See Ucelo-Gomez, 509 F.3d at 73; Matter of C-A-, 23 I&N at

21   961.

22          Because Villalobos’s claims for asylum and withholding


                                    4
1    of removal share the same factual predicate, his claim for

2    withholding of removal necessarily fails.     See Paul v.

3    Gonzales, 444 F.3d 148, 156 (2d Cir. 2006).

4        For the foregoing reasons, the petition for review is

5    DENIED.   As we have completed our review, any stay of

6    removal that the Court previously granted in this petition

7    is VACATED, and any pending motion for a stay of removal in

8    this petition is DISMISSED as moot.    Any pending request for

9    oral argument in this petition is DENIED in accordance with

10   Federal Rule of Appellate Procedure 34(a)(2), and Second

11   Circuit Local Rule 34.1(b).
12
13                                 FOR THE COURT:
14                                 Catherine O’Hagan Wolfe, Clerk
15
16
17




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