Merrari Valle-Montes v. Attorney -- 3 of 7 -- Valle-Montes did not argue these points in her brief to the BIA

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 07-3969
___________
MERRARI VALLE-MONTES,
Petitioner
vs.
ATTORNEY GENERAL OF THE
UNITED STATES, DEPARTMENT
OF HOMELAND SECURITY,
Respondent
____________________________________
On Petition for Review of an Order
of the Board of Immigration Appeals
Agency No. A98 121 552
Immigration Judge: Annie Garcy
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 19, 2009
Before: FUENTES, WEIS and GARTH, Circuit Judges
(Opinion filed August 21, 2009)
___________
OPINION
___________
PER CURIAM.
Merrari Valle-Montes petitions for review of an order of the Board of
Immigration Appeals (BIA), which dismissed her appeal of an Immigration Judge’s (IJ’s)

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final removal order. We will deny the petition for review.
I.
Valle-Montes is a native and citizen of El Salvador. She was apprehended
when she entered the United States without inspection and was placed in removal
proceedings. She conceded that she was removable for being present without lawful
admission or parole, but applied for asylum and withholding of removal. Valle-Montes’
asylum application is based on an incident that occurred on April 22, 2004 in El Salvador.
Valle-Montes testified that on that day, she was riding in her father’s car when four
tattooed men stopped the car by force. She and her father were ordered out of the car and
she was forced to walk up the road about ten meters with two men from the group while
two men remained behind with her father. The men told her they planned to rape her.
They stayed with her for about 30 minutes, but suddenly fled when a car approached. The
gang members robbed her father. Valle-Montes also submitted to the IJ a sworn written
statement that her father made to the police. The father’s account differs somewhat. He
said that he stopped the car to help a motorist. He told police that his daughter was driven
away in a car for about 2 kilometers, and that the gang members threw her out of the car
into a field and immediately fled. His report does not mention gang members remaining
with him.
The IJ noted that the State Department’s country report and other written
documentation submitted discussed violent criminal gangs operating in El Salvador. The

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IJ found that Valle-Montes was partially credible, and believed that Valle-Montes
suffered a traumatic experience on April 22, 2004, but did not find her credible regarding
the details. However, the IJ found that even if she assumed Valle-Montes were credible,
the applications failed, as Valle-Montes had not shown that she was persecuted on
account of a protected ground. The IJ noted that both Valle-Montes and her father
suffered similar treatment; they were both victims of crime, and it did not appear that she
was singled out because of her gender or any other protected ground. The IJ found that
Valle-Montes had further not shown that the police were unable or unwilling to help her.
The IJ held that Valle-Montes had not established a well-founded fear of persecution in
the future, and found that there was no evidence that the incident was anything but
random.
The BIA upheld the IJ’s finding that Valle-Montes had failed to support her
application with sufficiently credible evidence. Alternatively, the BIA agreed that even if
Valle-Montes were found to be credible, no evidence showed she or her father were
mistreated on account of a protected ground. Valle-Montes filed a timely petition for
review.
II.
We have jurisdiction over this petition for review under 8 U.S.C. § 1252.
Where, as here, the BIA adopted some of the findings of the IJ and made additional
findings, we review the decisions of both the BIA and the IJ. Gomez-Zuluaga v. Attorney

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Valle-Montes did not argue these points in her brief to the BIA; however, she did1
raise them in her notice of appeal to the BIA. We therefore have jurisdiction to consider
the arguments. Hoxha v. Holder, 559 F.3d 157, 159 (3d Cir. 2009).
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General, 527 F.3d 330, 339 (3d Cir. 2008). To be granted asylum as a refugee, an
applicant must establish that she is unable or unwilling to return to her homeland
“because of persecution or 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). To be entitled to withholding of removal, an applicant must
prove that her “life or freedom would be threatened in that country because of [her] race,
religion, nationality, membership in a particular social group, or political opinion.” 8
U.S.C. § 1231(b)(3). It is well-recognized that an alien who is unable to establish refugee
status for the purpose of asylum will be unable to establish the right to withholding of
removal. See Zubeda v. Ashcroft, 333 F.3d 463, 469-70 (3d Cir. 2003).
As noted, the BIA agreed with the IJ’s determination that Valle-Montes had
not supported her application with sufficiently credible evidence. Valle-Montes argues
that the IJ should have taken her testimony when her older brother was not in the room,
and should have taken her age into consideration. It is possible that Valle-Montes may1
have been more forthcoming regarding what took place on April 22, 2004 if her brother
had not been present, and if the IJ had taken into account that she was only 19 at the time
of the hearing. However, we do not find it necessary to remand for a new hearing, as we
agree with the BIA’s alternative holding that Valle-Montes did not produce evidence

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Valle-Montes did not mention being raped in her asylum application or in her2
testimony. However, she attached to her brief to the BIA a document, dated November 2,
2006, that appears to be the report of an interview at the New Jersey Center for the
Rehabilitation of Torture Victims, during which she apparently reported that she had been
raped by at least two of the men during the attack in El Salvador on April 22, 2004. A.R.
14-15. The BIA is an appellate body that does not engage in fact-finding on appeal. 8
C.F.R. §§ 1003.1(d)(1) & (d)(3)(iv). However, even if the BIA had considered the new
evidence as a motion to remand for further fact-finding, see 8 C.F.R. § 1003.1(d)(3)(iv); it
would have been justified in denying such a motion, as Valle-Montes did not show a
nexus between her treatment and her membership in a particular social group.
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showing she or her father were mistreated on account of a protected ground
Valle-Montes is raising a claim of persecution based on membership in a
particular social group. The BIA opined that the group was perhaps “woman” [sic] or
“woman [sic] who have been victims of rape.” A.R. 2. “Women who have been victims2
of rape” would not be a cognizable particular social group, as the “group” must exist
independently of the persecution. Lukwago v. Ashcroft, 329 F.3d 157, 172 (3d Cir.
2003). Valle-Montes vaguely defines the group as “based on her gender and the way that
her government in El Salvador fails to protect her on account of her gender and claim.”
Petitioner’s Brief at 12. Valle-Montes states that proposed regulations would recognize
gender as a per se social group, but recognizes that those regulations have not been
finalized. Petitioner’s Brief at 13. Even if gender, standing alone, would be a cognizable
particular social group, criminal activity, such as rape, does not constitute persecution
when it is not motivated by a protected ground. As both Valle-Montes and her father
were victimized in the attack, it is not clear that the attackers were motivated by Valle-

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Montes’s gender. See Niang v. Gonzales, 422 F.3d 1187, 1199-1200 (10 Cir. 2005)th
(focus should not be on whether gender can constitute social group, but on whether
“members of that group are sufficiently likely to be persecuted that one could say that
they are persecuted ‘on account of’ their membership”); see also Gomez-Zuluaga, 527
F.3d at 345 n.10 (“It is not necessary for us to determine whether this is a cognizable
‘particular social group’ under the statute, because there is substantial evidence in the
record to conclude that [the perpetrator] was not motivated by Petitioner’s membership in
a particular social group[.]).
Further, even if the proposed regulations mentioned by Valle-Montes were
in effect, those regulations do not eliminate the requirement that to constitute persecution,
the harm “must be inflicted by the government of the country of persecution or by a
person or group that government is unwilling or unable to control.” Asylum and
Withholding Definitions, 65 Fed. Reg. 76588, 76597 (Dec. 7, 2000) (to be codified at 8
C.F.R. § 208.15). Valle-Montes provided background evidence that female crime victims
are not well-protected in El Salvador, but in her case, the police took her (and her
father’s) statements. She testified that although she knew the name of one of the gang
members, she declined to give it to the police. The IJ also noted that given the differing
accounts of Valle-Montes and her father, police may have had difficulty in investigating
the crime. Thus, it is not clear that Valle-Montes gave the police an opportunity to
control her attackers, and she produced no evidence that the police were unwilling to try

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to do so in her case.
Because substantial evidence supports the BIA’s conclusion that Valle-
Montes did not meet her burden of showing that she suffered persecution on account of a
protected ground, we will deny the petition for review.

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