                                                                           FILED
                            NOT FOR PUBLICATION                             JUN 29 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JOSE MARVIN CRUZ,                                No. 09-72903

              Petitioner,                        Agency No. A090-648-877

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER, Jr., Attorney General,

              Respondent.



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

                        Argued and Submitted June 13, 2011
                             San Francisco, California

Before: O’SCANNLAIN and BYBEE, Circuit Judges, and HAYES, District
Judge.**

       An Immigration Judge ordered Jose Marvin Cruz removed from the United

States to his native El Salvador, and the Board of Immigration Appeals (BIA)

affirmed. Cruz petitions this Court for review of the BIA’s decision. Cruz admits


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable William Q. Hayes, U.S. District Judge for the District
of Southern California, sitting by designation.
that he is a removable alien, but seeks review of the BIA’s denial of his claims for

withholding of removal and protection under the Convention Against Torture

(CAT). Alternatively, Cruz asks us to remand to the BIA with instructions to stay

removal proceedings while Cruz moves to vacate his criminal convictions in

Nevada state court in light of Padilla v. Kentucky, 130 S. Ct. 1473 (2010).

      Cruz’s withholding of removal claim fails because Cruz has not shown that

he is likely to be persecuted on account of his membership in a “particular social

group” within the meaning of 8 U.S.C. § 1231(b)(3). The group Cruz identifies,

“Salvadoran-American men who have received gang tattoos, who [have] associated

with – and thus have unique knowledge of – gang members, and who chose never

to join a gang, but nevertheless are perceived as gang members,” is too broad and

too amorphous to qualify as a “particular social group” for withholding of removal

purposes.

      Cruz’s CAT claim is denied because he has not shown that the evidence

compels the conclusion that he is likely to be tortured if he returns to El Salvador,

as is required to overcome the BIA’s contrary factual finding. See INS v.

Elias-Zacarias, 502 U.S. 478, 481 n.1 (1992). Finally, we decline to remand to the

BIA so that Cruz can pursue Padilla claims in Nevada state court because Cruz has

not shown that it is likely that he would succeed in such claims.


                                           2
Cruz’s petition for review is

DENIED.




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