                            UNPUBLISHED

                  UNITED STATES COURT OF APPEALS
                      FOR THE FOURTH CIRCUIT
                           _____________

                            No. 13-1491
                           _____________


JORGE SOLOMON-MEMBRENO, a/k/a Jorge Mauricio Membreno;
FATIMA MARLENE VILLANUEVA-MEMRENO,

           Petitioners,

           v.

ERIC H. HOLDER, JR., Attorney General,

           Respondent.
                          _____________

On Petition for Review of an Order of the Board of Immigration
Appeals
                        _____________

Argued:   May 14, 2014                     Decided:   July 23, 2014

                          _____________

Before NIEMEYER and WYNN, Circuit Judges, and Robert J. CONRAD,
Jr., United States District Judge for the Western District of
North Carolina, sitting by designation.
                         ______________

Affirmed by unpublished opinion. Judge Conrad wrote the opinion
in which Judge Niemeyer and Judge Wynn joined. Judge Wynn wrote
a concurring opinion.
                         ______________

ARGUED:   Ivan Yacub, Falls Church, Virginia, for Petitioners.
Liza S. Murcia, UNITED STATES DEPARTMENT OF JUSTICE, Washington,
D.C., for Respondents.   ON BRIEF: Rachel Petterson, LAW OFFICE
OF IVAN YACUB, Falls Church, Virginia, for Petitioners. Stuart
F. Delery, Assistant Attorney General, Anthony C. Payne, Senior
Litigation Counsel, Office of Immigration Litigation, Civil
Division, UNITED STATES DEPARTMENT OF JUSTICE, Civil Division,
Washington D.C., for Respondent.
                          _____________
CONRAD, District Judge:

      Petitioners       Jorge     Solomon-Membreno                (Jorge)          and     Fatima

Marlene      Villanueva-Membreno                 (Fatima)         (collectively:                the

siblings)    are    siblings      who       are       natives     and    citizens          of    El

Salvador.       They     appeal        a    final        order    from       the     Board       of

Immigration Appeals (BIA) affirming denial of their claims for

asylum and withholding of removal by an Immigration Judge (IJ).

Though related, the claims of the siblings are not identical.

Jorge claims that he fears violent persecution by gang members

because of his membership in a self-described social group of

“young Salvadoran students who expressly oppose gang practices

and   values    and     wish    to     protect          their     family      against        such

practices.”        Fatima      bases       her       claim   on   her    membership         in    a

social group composed of “young female students who are related

to    an   individual     who     opposes             gang    practices       and        values.”

Focusing primarily on Jorge’s claim, the BIA affirmed denial on

the   grounds    that    they     were       too       amorphous        to   qualify        as    a

“particular     social      group,”        and       were    therefore       not    cognizable

under the Immigration and Nationality Act (INA).                               We agree and

affirm.

                                            I.

                                            A.

      The rapid growth of violent gangs such as MS—13 has proved

nothing short of a tragedy for those living in Central America.

                                                 2
Like a malign specter, the reach of MS—13 extends from city to

town to countryside and oppresses the daily lives of innumerable

people through intimidation, harassment, and staggering acts of

violence.      The son of the president of Honduras is among those

who have been killed by MS—13. Countless more victims have been

beaten, raped, or tortured at the hands of gang members; yet

still   more   endure    lives   constricted     by   fear   of   such   fates.

Despite     aggressive    measures    by      national    authorities,    gang

violence continues more or less unabated. 1              At the local level,

authorities too often lack the resources, ability, or resolve to

combat MS—13 effectively, still less to protect citizens and

their families.      For too many, the only way to escape the gang

is to flee home altogether. 2             This is the unhappy backdrop to

this case.

                                     B.


1
  A recent study conducted by the World Bank supports a finding that
Guatemala, Honduras, and El Salvador have the highest homicide rates in the
world, approaching 100 persons per 100,000 in certain areas. Crime and
Violence in Central America: A Development Challenge, at 3, (2011), available
at: http://issuu.com/world.bank.publications/docs/crime_and_violence_in_
central_america_en (saved as an ECF Opinion Attachment).
2
  The plague that is MS—13 is not limited to Central America but has made
significant inroads into the United States. A complete list of federal
criminal cases involving MS—13 members would be prohibitively long. A
cursory sample, however, reveals something of the breadth of the gang’s
criminal activity. See e.g., U.S. v. Palacios, 677 F.3d 234 (4th Cir. 2012)
(murder in aid of racketeering); U.S. v. Umana, 750 F.3d 320 (4th Cir. 2014)
(two counts of murder while using firearm); U.S. v. Lobo-Lopez, 468 Fed.
Appx. 186 (4th Cir. 2012)(conspiracy to commit murder in aid of
racketeering); U.S. v. Rivera, 405 F.Supp.2d (E.D.Va. 2005) (killing a person
aiding a federal investigation); U.S. v. Martinez, 978 F.Supp.2d 177
(E.D.N.Y. 2013) (multiple counts of murder); U.S. v. Escobar, 462 Fed. Appx.
58 (2d Cir. 2012) (use of explosives to commit a felony); U.S. v. Ramos-
Carillo, 511 Fed. Appx. 739 (10th Cir. 2013) (conspiracy to distribute
methamphetamine).
                                       3
     The   facts,     summarized          briefly,       are    taken          from       the

administrative      record.         The       siblings      grew      up       in       their

grandmother’s      house    in   Sensuntepeque,          El    Salvador,            a    town

containing the presence of the MS-13 gang. The gang members were

easily recognizable to the residents of the town as they wore

distinct tattoos and perpetrated frequent acts of violence on

members of the community, including robbery, assault, and arson.

At some point during his adolescence, MS-13 members tried to

recruit Jorge, but he refused to join as he did not approve of

their activities.

      In May 2003, when she was eleven years old, Fatima was

attacked   while    walking      home   from     school.       Taking      a    shortcut

through a wooded area, she heard unfamiliar voices, was seized

from behind, was struck by a blow to the side of her face, and

fell unconscious.          She awoke to find her blouse ripped, her

chest exposed, and her shirt raised.                     She felt pain in her

stomach, believed she had been raped, and thought MS-13 members

responsible as they had previously made sexual comments to her

and threatened to “get her.”

     Jorge was eighteen years old at the time.                             When Fatima

explained to him that she believed she had been raped by gang

members, Jorge, accompanied by two friends, confronted the gang

members in a location where they frequently congregated.                                  As

townspeople   watched,      Jorge    yelled      at   the      gang    members,          who

                                          4
responded by punching and kicking him.                      After a few minutes,

Jorge ran home to safety, but did not call the police as he

believed they would do nothing. Thereafter, the siblings lived

in constant fear of the gang, eventually moving in with their

aunt for several months before returning to their grandmother’s

home    as   their    aunt’s    house    was      too    crowded.     Returning    to

Sensuntepeque, they confined themselves to their grandmother’s

house for fear of encountering the gang members.

       Jorge was the first of the siblings to flee El Salvador,

leaving      Fatima   with    her    grandmother.          Several   months   later,

Fatima awoke to find that her grandmother’s house had caught

fire.        Although   she    did    not       have    conclusive   proof,   Fatima

believed that MS—13 started the fire and filed a police report

with the local authorities stating as much.

        In March 2004, Jorge entered the United States near Tecate,

California, where he was promptly served by the Department of

Homeland Security (DHS) with a Notice to Appear (NTA) in removal

proceedings.         In August 2004, Fatima entered the United States

near Hidalgo, Texas, and the following month the DHS served her

with a similar notice. Jorge admitted the allegations in the NTA

and conceded removability, but requested relief in the form of

asylum,      withholding       of    removal,      and     protection   under     the

Convention Against Torture (CAT).                  At a later hearing, the IJ

joined Jorge’s and Fatima’s cases, including their applications

                                            5
for asylum and withholding of removal.

                                                C.

      On        May     2,     2007,        the        IJ        granted     the        Petitioners’

applications for asylum, finding that they provided sufficient

evidence to support their claims.                                Specifically, the IJ found

Jorge’s particular social group as “young Salvadoran students

who   expressly         oppose       gang       practices          and    values       and   wish   to

protect     their        family      against         such         practices,”       and      Fatima’s

social group as “young female students who are related to an

individual who opposes gang practices and values.”

      On review, the BIA sustained the DHS’s appeal in July 2009,

and   remanded         the     record      to     the       IJ    for    further        adjudication

consistent with its opinion.                       The BIA concluded that the IJ’s

decision conflicted with the holdings of the intervening cases

of Matter of S-E-G-, 24 I. & N. Dec. 579 (BIA 2008) and Matter

of E-A-G-, 24 I. & N. Dec. 591 (BIA 2008); consequently, the

IJ’s findings that the Petitioners belonged to particular social

groups     and    that       they    had    a     well-founded            fear    of     persecution

based      on    such        membership,         did        not    square        with    the    BIA’s

decisions in similar cases.                     For this reason, the BIA determined

that the Petitioners failed to meet both the lower burden of

proof to establish asylum as well as the more rigorous clear

probability           standard      for    withholding            of     removal.       Nonetheless,

the BIA remanded the case so that the IJ could consider two

                                                   6
alternate    claims   brought    by   Petitioners,       namely    a     claim    for

asylum based on alternate political opinion and for protection

under the Convention Against Torture (CAT).

      On remand, the Petitioners withdrew their political opinion

and   CAT   claims.     Instead,      citing     this    Court’s        opinion    in

Crespin-Valladares v. Holder, 632 F.3d 117 (4th Cir. 2012) as

intervening    law,   they    requested    that    the    IJ   adjudicate         anew

their claims for asylum based on their respective particular

social    groups.     Not    persuaded,    the    IJ    denied    their    claims,

finding them to be in conflict with existing BIA precedent.

      Reviewing the case for the second time, the BIA in March

2013 affirmed the IJ’s denial and dismissed Petitioners’ claims

for asylum. In so holding, the BIA examined Petitioners’ claims

in light of recent decisions from this Court, distinguishing the

facts of this case from those in Crespin-Valladares, where the

family of the petitioner was more readily identifiable as the

asylum petitioner and his uncle agreed to testify at the trial

of gang members who had killed a relative.               632 F.3d at 126.          In

contrast, the BIA likened the facts of this case to those in

Zelaya v. Holder, 668 F.3d 159 (4th Cir. 2012) where this Court

found that young Honduran males who refused to join gangs, had

notified the authorities of gang harassment tactics, and had a

readily     identifiable      tormentor    within        the     gang     did     not

constitute a cognizable social group.

                                       7
     Accordingly, the BIA issued a final order of deportation,

which this Court now reviews.

                                           II.

     Section 106(a) of the Immigration and Nationality Act vests

federal   appellate      courts     with       jurisdiction         to    review     “final

orders of deportation.” 8 U.S.C. § 1252(a)(1). Final orders are

entered   only    after     all     administrative             remedies       have     been

exhausted;    thus,     final    orders    in     deportation            proceedings    are

generally made by the BIA following appeal from the immigration

judge.    See Camara v. Ashcroft, 378 F.3d 361, 366 (4th Cir.

2004).    Where, as in this case, the BIA issued its own opinion

without adopting the IJ’s opinion in whole or in part, review by

this Court is limited to the BIA’s opinion. Martinez v. Holder,

740 F.3d 902, 908 n.1 (4th Cir. 2014).                         The BIA’s decision,

therefore, constitutes the final order of removal, and we review

that opinion and not the opinion of the IJ.                          The BIA’s legal

determinations,        including    its    interpretation            of    the   INA    and

other regulations, are reviewed de novo.                       See Li Fang Lin v.

Mukasey, 517 F.3d 685, 691-92 (4th Cir. 2008).

     Individuals       qualify     for    asylum       if    they    demonstrate       that

they are subject to persecution or have 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).           This Court upholds the denial of an

                                           8
asylum claim unless such denial is “manifestly contrary to law

and an abuse of discretion.” Zelaya, 668 F.3d at 165 (quoting 8

U.S.C. § 1252(b)(4)(D)).

       The   BIA   recognizes     a   particular        social      group      when   it

satisfies     three     criteria:     (1)       its     members      share      common,

immutable characteristics; (2) the common characteristics give

its members social visibility; and, (3) the group is defined

with sufficient particularity to delimit its membership. Lizama

v. Holder, 629 F.3d 440, 447 (4th Cir. 2011) (internal citations

omitted).      After Lizama was issued, the BIA clarified the term

“social visibility” to mean “social distinction,” as the former

term     risked    misapprehension         as     merely       ocular     or     actual

visibility, whereas the latter directs focus on the full range

of   qualities     capable   of   rendering       a    group    distinct     within     a

society.     Matter of W-G-R-, 26 I. & N.                Dec. 2008 (BIA Feb. 7,

2014).

                                      III.

       The   discrete    question     in       front    of     us   is   whether      the

following groups qualify as particular social groups:

       (Jorge): “young Salvadoran students who expressly
       oppose gang practices and values and wish to protect
       their families against such practices”; and

       (Fatima): “young female students who are related to an

       individual who opposes gang practices and values.”

       In addressing this question, our analysis is directed by

                                           9
numerous prior decisions of this Court and the BIA, which have

examined the proposed social groups of persons seeking asylum

due to persecution at the hands of MS-13.

        The    BIA    has    found    that       a    group    comprised       of    Salvadoran

youth who have been recruited by MS—13, but resisted joining was

too amorphous to qualify as a particular social group as “the

motivation of gang members in recruiting and targeting young

males        could    arise        from    motivations          quite        apart       from     any

perception that the males in question were members of a class.”

Matter of S-E-G-, 24 I. & N. at 585.                                Similarly, a class of

young persons perceived to be affiliated with gangs based on the

incorrect perceptions of others likewise cannot be identified as

a particular social group. Matter of E-A-G-, 24 I. & N. at 596.

        In    Lizama,       this    Court    declined          to    recognize       a    proposed

social        group     consisting         of        “young,    Americanized,             well-off

Salvadoran          male    deportees      with       criminal       histories       who    oppose

gangs.” 629 F.3d at 447.                  In reaching this conclusion, the Court

found        that     factors       such        as     wealth,           Americanization          and

opposition to gangs were amorphous characteristics that failed

“to     provide        an    adequate        benchmark          for        determining          group

membership” as such factors did not “embody concrete traits that

would         readily       identify        a        person         as     possessing           these

characteristics.”            Id. (internal citations omitted).                       This Court

followed the exact same line of reasoning in Zelaya, finding

                                                 10
that a proposed group comprised of young, Honduran males who

refused to join MS—13, notified the authorities about harassment

tactics, and had an identifiable tormentor within MS—13, was too

amorphous a class to satisfy the particularity requirement.                            668

F.3d at 166 (citing Lizama, 629 F.3d at 447).

     In Crespin-Valladares, by contrast, this Court found that a

social     group    consisting    of     family        members     of    persons       who

actively     oppose     gangs    in    El     Salvador       by   agreeing        to    be

prosecutorial witnesses constituted a particular social group.

The discrete issue in Crespin-Valladares centered upon the class

of family members rather than the actual persons who agree to

serve as witnesses.           Nonetheless, the Court did not view these

classes in isolation from each other, observing that: “we can

conceive of few groups more readily identifiable than the family

. . . [and] [t]his holds particularly true for Crespin’s family,

given that Crespin and his uncle publicly cooperated with the

prosecution of their relative’s murder.” Crespin-Valladares, 632

F.3d at 126.

     Petitioners       contend    that      the    BIA   erred    by    expanding       on

Crespin-Valladares insofar as that opinion was limited to the

discrete    question     of   eligibility         of   the   family     members    as    a

particular social group.              Although they are correct that the

holding     in     Crespin-Valladares        ventures        no   further    than       to

recognize the status of family members per se as a particular

                                         11
social group, and that the opinion offers no account of how the

manifold     forms        of    opposition        to    gangs      might    inform    the

boundaries of a particular social group, it does not naturally

follow   that      such    considerations         are   beyond     the     purview   of   a

reviewing court. Crespin-Valladares establishes that the family

members constitute a particular social group by virtue of their

relationship to persons who agree to testify at trial against

gang members.       Reading this case as mandating that the claims of

family   members      be       viewed   in   isolation        to   one   another     risks

yielding the absurd result whereby family members of persons

testifying at trial might qualify as a particular social group

while the persons testifying do not.

     Subsequent decisions from this Court have laid to rest any

doubts     about    the        implications       of    the    holding      in   Crespin-

Valladares. Quoting language from a concurring opinion from the

Ninth Circuit, Judge Floyd, joined by Judge Davis, addressed

this issue in Zelaya, stating that:

     It should be noted that the proposed social group in
     Crespin  [Crespin-Valladares]  included   only  family
     members of [prosecution witnesses against gangs] and
     not the witnesses themselves. However, to my mind, if
     the family members or witnesses are deemed socially
     visible and particular, the witnesses themselves—a
     more particular and socially visible and smaller class
     of people—must, a fortiori, meet those requirements as
     well.

668 F.3d at 169 (quoting Henriquez-Rivas v. Holder, No-09-
71571, 449 Fed.Appx. 626, 632 n.5 2011 WL 3915529, at *5
n.5 (9th Cir. Sept. 7, 2011)) (unpublished).

                                             12
       For   this    reason,    the   BIA        did    not   err    in   comparing

unfavorably        Jorge’s   public    confrontation          with    the       public

testimony of gang members at issue in Crespin-Valladares.                           In

fact, this Circuit drew the same comparison in Zelaya, a case

involving a proposed social group comprised of young, Honduran

males who refused to join MS-13, notified the authorities about

harassment tactics, and had an identifiable tormentor within the

gang.     Finding that the proposed group failed the particularity

requirement, Judge Floyd stated the following:

       Thus while I agree that Zelaya’s proposed social group
       is insufficiently particular, I reach this conclusion
       not because the members of the proposed social group
       lack   kinship    ties,   but   rather   because   the
       characteristics of the group are, in my view, broader
       and more amorphous than a group consisting of
       individuals who have testified for the government in
       formal prosecutions of gangs.


Zelaya, 668 F.3d at 169.

       Indeed, all of this is a somewhat technical prelude to the

most important distinction in this case, namely particularity.

A     particular    social    group   must       have    “particular      and     well

established boundaries.”         Zelaya, 668 F.3d at 166.                 Here, the

proposed social groups lack well-established boundaries; that is

to say they provide no means to distinguish among the panoply of

actions a person might take in opposition to MS—13.                         Instead,

the    proposed     groups   regard   as    an    undifferentiated        class    all

conceivable forms of public opposition to gangs, to include, for

                                       13
example,     the    filing   of    a    police      report,      making    statements

against the gang to local media, participation in a city-wide

protest      against   the      gang,    or,      as     discussed      during     oral

arguments, public criticism of gang activity by a bishop during

a religious service. While different in material respects, all

of these are acts of public opposition to gangs falling squarely

within the proposed social group.                      Like Zelaya, the proposed

group   is    too   amorphous     as    it    fails     “to   provide     an   adequate

benchmark for determining group membership.” 629 F.3d at 447.

                                        IV.

     For     the    foregoing     reasons,        we    affirm    the   BIA’s     order

denying Petitioners’ claims for asylum.



                                                                               AFFIRMED




                                             14
WYNN, Circuit Judge, concurring in the judgment:

       I agree with the majority’s conclusion that the siblings’

proposed social groups are not particular enough to render them

eligible for asylum.           I further agree that we should deny the

petition for review.        Put simply, Zelaya v. Holder, 668 F.3d 159

(4th Cir. 2012), and Lizama v. Holder, 629 F.3d 440 (4th Cir.

2011), dictate the outcome here.                In those cases, we held that

“opposition to gangs [is an] amorphous characteristic[]” that

cannot be used to determine group membership, Lizama, 629 F.3d

at   447,   and    that   “[r]esisting         gang   recruitment      is    similarly

amorphous,”       Zelaya,   668    F.3d    at     166.      Jorge’s     one    public

altercation with gang members does not turn him or his sister

into members of any “particular social group” that is eligible

for asylum under 8 U.S.C. § 1101(a)(42)(A).

       Although I think that we should clear up the “lingering

confusion regarding the implications of our holding in Crespin-

Valladares v. Holder, 632 F.3d 117 (4th Cir. 2011),” Zelaya, 668

F.3d at 169 (Floyd, J., concurring in judgment), this case is

not the vehicle for doing so.                  In Crespin-Valladares, we held

that   family     members   of    those    who    testify     against       gangs   are

members of a “particular social group.”                  Crespin-Valladares, 632

F.3d   at   126.       We   did    not    reach       the   question    of    whether

prosecution       witnesses,      themselves,         constitute    a       particular

social group.        Like Judge Floyd and Judge Davis, I would read

                                          15
Crespin-Valladares “to indicate that such a group satisfies [the

relevant criteria] in the same manner that family members of

prosecution witnesses against gangs do.”            Zelaya, 668 F.3d at

169   (Floyd,   J.,   concurring     in   judgment)   (quotation    marks

omitted).

      Of course, such a reading has no bearing on the outcome of

this case.   Even if we were to assume that prosecution witnesses

are members of a “particular social group,” Jorge’s conduct in

publicly confronting several gang members on one occasion is

analogous to the conduct in Zelaya, which consisted of twice

contacting the police.     Id. at 166.        Because Fatima’s proposed

social   group—“young   female     students   who   are   related   to   an

individual who opposes gang practices and values”—is derivative

of the insufficiently particular social group of her brother,

her petition for review must fail as well.




                                    16
