     Case: 18-60685       Document: 00515323515         Page: 1     Date Filed: 02/27/2020




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

                                                                               FILED
                                                                          February 27, 2020
                                     No. 18-60685
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk


JOSE MANUEL PENADO-HERNANDEZ; ASHLEY GABRIELA PENADO-
CASTRO; KARLA CASTRO-DE PENADO; DANIELA ELIZABETH PENADO-
CASTRO,

                                                  Petitioners

v.

WILLIAM P. BARR, U. S. ATTORNEY GENERAL,

                                                  Respondent


                        Petition for Review of an Order of the
                           Board of Immigration Appeals
                                BIA No. A208 450 779
                                BIA No. A208 450 780
                                BIA No. A208 455 141
                                BIA No. A208 455 142


Before BARKSDALE, HAYNES, and ENGELHARDT, Circuit Judges.
PER CURIAM: *
       Jose Manuel Penado-Hernandez, a native and citizen of El Salvador,
along with derivative beneficiaries Ashley Gabriela Penado-Castro, Karla
Castro-De Penado, and Daniela Elizabeth Penado-Castro, petitions for review


       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.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. 18-60685

of the Board of Immigration Appeals’ (BIA) decision upholding the immigration
judge’s (IJ) denial of his application for asylum and withholding of removal.
Penado contends the IJ and BIA erred in concluding: he was not a member of
a particular social group (PSG); he did not experience past persecution; and he
had no well-founded fear of future persecution.
      In considering the BIA’s decision (and the IJ’s decision, to the extent it
influenced the BIA), our court reviews legal conclusions de novo and factual
findings for substantial evidence. Orellana-Monson v. Holder, 685 F.3d 511,
517–18 (5th Cir. 2012) (citations omitted). On substantial-evidence review, a
factual finding will not be disturbed “unless the court decides not only that the
evidence supports a contrary conclusion, but also that the evidence compels it”.
Id. at 518 (emphasis in original) (internal quotation marks and citation
omitted).   In that regard, “petitioner has the burden of showing that the
evidence is so compelling that no reasonable factfinder could reach a contrary
conclusion”. Id. (internal quotation marks and citation omitted).
      “Asylum is discretionary and may be granted to an alien who is unable
or unwilling to return to his home country because of persecution or a well-
founded fear of persecution on account of race, religion, nationality,
membership in a [PSG], or political opinion.” Zhang v. Gonzales, 432 F.3d 339,
344 (5th Cir. 2005) (internal quotation marks and citation omitted). The alien
seeking asylum must establish that one of these protected bases “was or will
be at least one central reason for persecuting the applicant”. Tamara-Gomez
v. Gonzales, 447 F.3d 343, 348 (5th Cir. 2006) (citations omitted).
      PSG members “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”. Orellana-Monson,
685 F.3d at 518 (internal quotation marks and citations omitted). A PSG has



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                                  No. 18-60685

“social visibility”, meaning “members of a society perceive those with the
characteristic in question as members of a social group”, and “particularity”,
meaning “the proposed group can accurately be described in a manner
sufficiently distinct that the group would be recognized, in the society in
question, as a discrete class of persons”. Id. at 519 (citations omitted). Penado
alleges membership in two PSGs: “Patriarchal Salvadoran males who are
successful business owners”; and “Salvadoran witnesses to crime/murder”.
Each fails.
        As to the first alleged PSG, a person’s employment is generally not
considered an immutable characteristic. See Mwembie v. Gonzales, 443 F.3d
405, 414–15 (5th Cir. 2006).         Additionally, business owners, wealthy
Salvadorans, and persons subject to economic extortion are not protected
groups. See, e.g., Castillo-Enriquez v. Holder, 690 F.3d 667, 668 (5th Cir. 2012)
(citations omitted) (economic extortion and wealthy Salvadorans); Thapa v.
Holder, 357 F. App’x 591, 593 (5th Cir. 2009) (per curiam) (citations omitted)
(economic extortion, businessmen, and business owners).
        As to the second alleged PSG, our court has consistently rejected claims
that a group consisting of crime witnesses qualifies as a particular social group.
See, e.g., Soriano-Dominguez v. Holder, 354 F. App’x 886, 887 (5th Cir. 2009)
(citations omitted) (non-criminal witnesses reporting crimes); Calel-Chitic v.
Holder, 333 F. App’x 845, 847 (5th Cir. 2009) (per curiam) (witnesses to
government officials’ crimes). In support of his alleged PSG, Penado cites
Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc). That case
is distinguishable, however, because it involved an asylum applicant “who
testified in a criminal trial against members of a gang”, which is inapplicable
here.    See id. at 1083.   And, although Penado intimates he is part of a
recognizable social group—notwithstanding his failure to report crimes to



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                                  No. 18-60685

authorities—because gang members knew he witnessed their offenses, “a
group’s recognition for asylum purposes is determined by the perception of the
society in question, rather than by the perception of the persecutor”. Matter of
M-E-V-G-, 26 I. & N. Dec. 227, 242 (B.I.A. 2014).
      Because Penado fails to establish membership in a PSG, he has not
shown the BIA erred in concluding he was not entitled to asylum, which
requires any past persecution, or well-founded fear of future persecution, be
“on account of” his membership in a PSG. See Zhang, 432 F.3d at 344 (citation
omitted); see also Tamara-Gomez v. Gonzales, 447 F.3d at 348 (citations
omitted). And, “[b]ecause the level of proof required to establish eligibility for
withholding of removal is higher than that required for asylum”, Penado’s
“failure to establish eligibility for asylum is dispositive of [his] claim[] for
withholding of removal”. See Majd v. Gonzales, 446 F.3d 590, 595 (5th Cir.
2006) (citation omitted).
      DENIED.




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