         11-2167-ag
         Mena Lopez v. Holder
                                                                                       BIA
                                                                                  Cheng, IJ
                                                                               A089 081 636
                                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 22nd day of March, two thousand twelve.
 5
 6       PRESENT:
 7                BARRINGTON D. PARKER,
 8                PETER W. HALL,
 9                DENNY CHIN,
10                    Circuit Judges.
11       _____________________________________
12
13       JAIME OMAR MENA LOPEZ,
14                Petitioner,
15
16                          v.                                  11-2167-ag
17                                                              NAC
18       ERIC H. HOLDER, JR., UNITED STATES
19       ATTORNEY GENERAL,
20                Respondent.
21       _____________________________________
22
23       FOR PETITIONER:                 Sandra P. Nichols, New York, New
24                                       York.
25
26       FOR RESPONDENT:                 Tony West, Assistant Attorney
27                                       General; Jennifer L. Lightbody,
28                                       Senior Litigation Counsel; Edward E
29                                       Wiggers, Trial Attorney, Office of
30                                       Immigration Litigation, United
31                                       States Department of Justice,
32                                       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       Petitioner Jaime Omar Mena Lopez, a native and citizen

 6   of El Salvador, seeks review of the April 29, 2011, decision

 7   of the BIA partially affirming the August 11, 2009, decision

 8   of Immigration Judge (“IJ”) Mary Cheng denying his

 9   application for withholding of removal and relief under the

10   Convention Against Torture (“CAT”).     In re Mena Lopez, No.

11   A089 081 636 (B.I.A. Apr. 29, 2011), aff’g No. A089 081 636

12   (Immig. Ct. N.Y. City Aug. 11, 2009).    We assume the

13   parties’ familiarity with the underlying facts and

14   procedural history in this case.

15       Under the circumstances of this case, we have reviewed

16   the IJ’s decision as modified by the BIA.     See Xue Hong Yang

17   v. U.S. Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005).

18   The applicable standards of review are well-established. See

19   8 U.S.C. § 1252(b)(4)(B); Salimatou Bah v. Mukasey, 529 F.3d

20   99, 110 (2d Cir. 2008).   The agency correctly determined

21   that Mena Lopez failed to establish that he would more

22   likely than not be persecuted on a protected ground as he


                                   2
 1   failed to demonstrate that he would be targeted based on his

 2   membership in a particular social group.

 3       Mena Lopez defines his social group as Salvadoran

 4   youths who are victims of gang crime and report that crime

 5   to the police.   Mena Lopez first argues that the agency

 6   applied an “impermissibly strict definition of social

 7   visibility” in that it required the group to be physically

 8   visible such that its members would be “readily identifiable

 9   upon sight as a discre[te] group.”   According to Mena Lopez,

10   this “social visibility” definition conflicts with that

11   advanced by the United Nations High Commissioner for

12   Refugees (“UNHCR”)—persons “who share a common

13   characteristic other than their risk of being persecuted, or

14   who are perceived as a group by society.”   See UNHCR,

15   Guidelines on International Protection: “Membership of a

16   Particular Social Group” Within the Context of Article 1

17   A(2) of the 1951 Convention and/or its 1967 Protocol

18   Relating to the Status of Refugees, U.N. Doc. HCR/GIP/02/02

19   (May 7, 2002), available at

20   http://www.unhcr.org/refworld/docid/3d36f23f4.html (“UNHCR

21   Guidelines”).

22       Contrary to Mena Lopez’s argument, the “social

23   visibility” formulation used by the BIA incorporates the

                                   3
 1   UNHCR Guidelines and has been approved of by this Court.       In

 2   resolving Mena Lopez’s appeal, the BIA relied on its

 3   precedential decisions in Matter of A-M-E & J-G-U-, 24 I. &

 4   N. Dec. 69, 74-76 (BIA 2007), aff'd by Ucelo-Gomez v.

 5   Mukasey, 509 F.3d 70, 73 (2d Cir. 2007), and Matter of C-A-,

 6   23 I. & N. Dec. 951 (BIA 2006), to determine that Lopez’s

 7   proposed group lacked the requisite “social visibility.”

 8   In Matter of C-A-, the BIA considered various approaches

 9   when determining whether confidential informants against the

10   Cali cartel in Colombia constituted a particular social

11   group, including the UNHCR Guidelines Mena Lopez cites.        See

12   Matter of C-A-, 23 I. & N. Dec. at 955-57.     Specifically,

13   the BIA found that the UNHCR Guidelines emphasized

14   “visibility” as an “important element in the existence of a

15   particular social group.”     Id. at 960 (citing UNHCR

16   Guidelines at 2, 14).

17       Although Matter of C-A- is not binding on this Court,

18   it is entitled to Chevron deference, under which we defer

19   “to any reasonable interpretation of the statute adopted by

20   the Board as the entity charged by Congress with the

21   statute’s enforcement.”     Ucelo-Gomez, 509 F.3d at 72; see

22   also Chevron, U.S.A., Inc. v. Natural Res. Def. Council,

23   Inc., 467 U.S. 837, 842-45 (1984).    In Ucelo-Gomez, we

                                     4
 1   affirmed Matter of A-M-E & J-G-U-, which relied on Matter of

 2   C-A-’s “social visibility” test and explicitly held that the

 3   social visibility requirement expressed in Matter of C-A- is

 4   “consistent with this Court’s reasoning that a ‘particular

 5   social group is comprised of individuals who possess some

 6   fundamental characteristic in common which serves to

 7   distinguish them in the eyes of a persecutor–or in the eyes

 8   of the outside world in general.’”   See Ucelo-Gomez, 509

 9   F.3d at 72-74 (quoting Gomez v. INS, 947 F.3d 660, 664 (2d

10   Cir. 1991)).   Thus, the “social visibility” approach

11   utilized in Mena Lopez’s case is consistent with both BIA

12   precedent and the precedent of this Court.    See Ucelo-Gomez,

13   509 F.3d at 72-74.   Further, to the extent Mena Lopez argues

14   that the UNHCR’s interpretation is binding on the BIA or

15   this Court, such arguments are meritless.    Cf. INS v.

16   Aguirre-Aguirre, 526 U.S. 415, 427 (1999) (holding that

17   while the United Nations Handbook on Procedures and Criteria

18   for Determining Refugee Status is “a useful interpretive

19   aid,” “it is not binding on the Attorney General, the BIA,

20   or United States courts”).

21       Moreover, the BIA reasonably concluded that Mena

22   Lopez’s proposed group failed the “social visibility” test.

23   In Ucelo-Gomez, we held that although the existence of past

                                   5
 1   harm is relevant to the “social visibility” test, “a social

 2   group cannot be defined exclusively by the fact that its

 3   members have been subjected to harm.”     509 F.3d at 73

 4   (quotation omitted) (emphasis in original).     Thus, Mena

 5   Lopez may not rely on his status as a victim of gang crime

 6   alone to demonstrate his membership in a particular social

 7   group.

 8       Mena Lopez attempts to narrow his definition by arguing

 9   that victims of gang crime who then report it to the police

10   should be considered a discrete group because the act of

11   publicly reporting the crime renders them identifiable and

12   subject to retaliation.   His argument is without merit.     In

13   this case, as was the situation in Matter of C-A- and Matter

14   of S-E-G-, there is no record evidence indicating that the

15   group of young male Salvadoran victims of gang crime who

16   report it to the police are perceived as a group by society

17   in El Salvador or are subject to a greater threat from gang

18   violence than the general population.     See Matter of S-E-G-,

19   24 I. & N. Dec. 579, 587-88 (BIA 2008); Matter of C-A-, 23

20   I. & N. at 961.   Mena Lopez has therefore failed to present

21   evidence that “any ‘group,’ as actually perceived” by the

22   criminals he reported to the police, “is much narrower than

23   the general population” of El Salvador.     Matter of C-A-, 23

24   I. & N. at 961.

                                   6
 1       As we find no error in the agency’s determination that

 2   Mena Lopez’s proposed group failed to qualify as a protected

 3   ground under the INA, the petition for review is DENIED.     As

 4   we have completed our review, any stay of removal that the

 5   Court previously granted in this petition is VACATED, and

 6   any pending motion for a stay of removal in this petition is

 7   DISMISSED as moot.   Any pending request for oral argument in

 8   this petition is DENIED in accordance with Federal Rule of

 9   Appellate Procedure 34(a)(2), and Second Circuit Local Rule

10   34.1(b).

11                               FOR THE COURT:
12                               Catherine O’Hagan Wolfe, Clerk
13
14




                                   7
