Perez-Molina v. Gonzales

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
August 3, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 05-60808
Summary Calendar
JESUS ANTONIO PEREZ-MOLINA,
Petitioner,
versus
ALBERTO R. GONZALES, U.S. ATTORNEY GENERAL,
Respondent.
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Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A96 180 607
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Jesus Antonio Perez-Molina (Perez) has petitioned for review
of the Bureau of Immigration Appeals’s (BIA) decision denying his
application for asylum and withholding of removal. Perez asserts
that he is the victim of persecution by a gang, the Mara
Salvatrucha (MS), and that he has a well-founded fear of future
persecution because of his membership in a social group
consisting of young Salvadoran males. Perez contends that the
evidence shows that he refused to join the MS, that the MS was
aware of his opposition, that the MS had the power to punish its

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enemies, and that the MS was inclined to punish him. He contends
that two threatening letters and an incident when he was
assaulted and threatened in a school bathroom show that he was
the victim of persecution.
“Although this Court generally reviews decisions of the BIA,
not immigration judges, it may review an immigration judge’s
decision when, as here, the BIA affirms without additional
explanation.” Moin v. Ashcroft, 335 F.3d 415, 417 (5th Cir.
2003). “[T]his Court must affirm the decision if there is no
error of law and if reasonable, substantial, and probative
evidence on the record, considered as a whole, supports the
decision’s factual findings.” Id. Under this standard, “the
alien must show that the evidence is so compelling that no
reasonable factfinder could conclude against it.” Chun v. INS,
40 F.3d 76, 78 (5th Cir. 1994). An IJ’s findings on credibility
are accorded “great deference.” Efe v. Ashcroft, 293 F.3d 899,
904 (5th Cir. 2002).
The Attorney General is authorized, in his discretion, to
grant asylum to aliens who qualify as refugees. 8 U.S.C.
§ 1158(b)(1). An alien is a refugee when he is outside of his
country and “is unable or unwilling to return to, and is unable
or unwilling to avail himself or herself of the protection of,
that country 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.

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§ 1101(a)(42)(A). The term “persecution” requires a showing by
the alien that “harm or suffering will be inflicted upon [him] in
order to punish [him] for possessing a belief or characteristic a
persecutor sought to overcome.” Faddoul v. INS, 37 F.3d 185, 188
(5th Cir. 1994) (quotation marks omitted). “Because the level of
proof required to establish eligibility for withholding of
removal is higher than that required for asylum, failure to
establish eligibility for asylum is dispositive of claims for
withholding of removal.” Majd v. Gonzales, 446 F.3d 590, 595
(5th Cir. 2006).
The immigration judge (IJ) did not err in determining that
Perez had not shown that he was persecuted on account of his
membership in a particular social group. “To establish that he
is a member of a ‘particular social group,’ an applicant must
show that he was a member of a group of persons that share a
common immutable characteristic that they either cannot change or
should not be required to change because it is ‘fundamental to
their individual identities or consciences.’” Mwembie v.
Gonzalez, 443 F.3d 405, 414–15 (5th Cir. 2006). The
characteristics of youth, nationality, and gender are too
generalized and do not provide a meaningful basis for
distinguishing Perez from other persons—they lack particularity
and are overbroad. See Sanchez-Trujillo v. INS, 801 F.2d 1571,
1576–77 (9th Cir. 1986).

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The IJ found that Perez’s testimony was not credible.
Although discrepancies in Perez’s testimony may have involved
insignificant matters, as Perez suggests, they also provide
substantial evidence supporting the IJ’s finding on credibility.
See Efe, 293 F.3d at 904. Even if credible, Perez’s testimony
about the relatively mild incident in the school bathroom and the
threatening notes does not compel the conclusion that the IJ
erred in determining that Perez had not shown past persecution or
a well-founded fear of future persecution. See Majd, 446 F.3d at
595. Substantial evidence also supports IJ’s finding that Perez
can avoid future difficulties by relocating within El Salvador.
See Lopez-Gomez v. Ashcroft, 263 F.3d 442, 445 (5th Cir. 2001).
The petition is DENIED.

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