     Case: 10-60256     Document: 00511542476         Page: 1     Date Filed: 07/18/2011




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

                                                                            FILED
                                                                            July 18, 2011
                                     No. 10-60256
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

AMILCAR ORLANDO HERNANDEZ-NAVARRETE,
also known as Amilcar Hernandez-Navarrete,

                                                  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. A088 058 417


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Amilcar Orlando Hernandez-Navarrete (Hernandez) petitions this court
for review of the Board of Immigration Appeals’ (BIA’s) decision holding his
asylum application untimely and rejecting his request for withholding of
removal.     We have jurisdiction to entertain the BIA’s determination that
Hernandez’s asylum application was untimely because the timeliness issue is
based on the BIA’s construction of 8 U.S.C. § 1158(a)(2)(D) and 8 C.F.R.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 10-60256

§ 208.4(a)(4)(i). See Nakimbugwe v. Gonzales, 475 F.3d 281, 284 (5th Cir. 2007).
We review questions of law de novo, Zhu v. Gonzales, 493 F.3d 588, 594-95 (5th
Cir. 2007).
      Here, the BIA affirmed the Immigration Judge’s ruling in an unpublished,
single-judge decision. This Court has not resolved the issue of whether such a
decision should be entitled to greater deference pursuant to Chevron U.S.A., Inc.
v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984), or the lesser amount
of deference pursuant to Skidmore v. Swift & Co., 323 U.S. 134 (1944). “We need
not resolve this question, because [Hernandez’s] claim fails under either
standard. Thus, we review it under the less-deferential Skidmore standard.”
Mushtaq v. Holder, 583 F.3d 875, 877 (5th Cir. 2009).
      An application for asylum must be filed within one year after the date of
the alien’s arrival in the United States.           8 U.S.C. § 1158(a)(2)(B).
Notwithstanding an untimely filing, an asylum application may be considered
“if the alien demonstrates to the satisfaction of the Attorney General either the
existence of changed circumstances which materially affect the applicant’s
eligibility for asylum or extraordinary circumstances relating to the delay in
filing an application.” § 1158(a)(2)(D); 8 C.F.R. § 208.4(a)(4)(i). The term
“changed circumstances” may include “changes in applicable U.S. law.”
§ 208.4(a)(4)(i)(B).
      Hernandez argues that Valdiviezo-Galdamez v. Attorney General of the
United States, 502 F.3d 285 (3d Cir. 2007), changed applicable United States law
in a way that materially affected his eligibility for asylum. The BIA held that
a nonbinding change in law in the Third Circuit did not constitute a changed
circumstance justifying Hernandez’s delay in filing his asylum application. That
holding is based on valid reasoning and not contrary to § 1158(a)(2)(D). We
therefore afford the BIA’s interpretation of immigration law its proper deference
and will not disturb its determination that Hernandez’s asylum application was
untimely. Skidmore, 323 U.S. at 140.

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                                  No. 10-60256

      Hernandez further argues that he is entitled to withholding of removal
because the evidence demonstrates that his life or freedom would likely be
threatened if he were removed to El Salvador on account of his membership in
the particular social group of young Salvadoran men who refuse to join gangs.
We review the BIA’s determination that Hernandez is not eligible for
withholding of removal under the substantial evidence standard. Kane v.
Holder, 581 F.3d 231, 239 (5th Cir. 2009). Hernandez is entitled to withholding
of removal if he shows that his “life and freedom would be threatened in [El
Salvador] because of [his] race, religion, nationality, membership in a particular
social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A).
      The BIA’s determination that Hernandez did not suffer past persecution
is supported by evidence that neither he nor his family was ever physically
harmed and, at most, merely suffered threats and harassment. See Eduard v.
Ashcroft, 379 F.3d 182, 188 (5th Cir. 2004). Moreover, Hernandez cannot show
that he was or would be persecuted on account of his membership in a particular
social group; his status as a young Salvadoran male who does not belong to a
gang is too generalized to identify him as a member of a particular social group.
See Matter of S-E-G-, 24 I.&N. Dec. 579, 582-84 (BIA 2008).
      PETITION DENIED.




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