NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________

No. 21-1291 __________

NELSON EDGARDO CRUZ-IRAHETA, Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES

__________

On Appeal from the Board of Immigration Appeals Immigration Judge: Lisa de Cardona (Agency No. A206-769-158) __________

Submitted Under Third Circuit L.A.R. 34.1(a) on December 13, 2022

Before: RESTREPO, MCKEE, SMITH, Circuit Judges

(Filed: June 1, 2023) __________

OPINION* __________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. RESTREPO, Circuit Judge.

I. Introduction

Petitioner, Nelson Edgardo Cruz-Iraheta, appeals the Immigration Judge’s (“IJ”)

and Board of Immigration Appeals’ (“BIA”) denial of asylum, withholding of removal,

and Convention Against Torture (“CAT”) relief. At the time of the events, Petitioner was

a student in El Salvador and had to commute by bus across rival gang territory. Petitioner

was beaten on two occasions by individuals he believes were members of the Barrio 18

gang. Petitioner argues that the Agency erred in concluding that his proposed particular

social group (“PSG”), “Salvadoran male students that oppose gang activity,” was not

legally cognizable and that he had not suffered past persecution. For the foregoing reasons,

we deny the petition for review.

II. Jurisdiction

The BIA had jurisdiction pursuant to

and

(b).

This Court’s appellate jurisdiction for judicial review of a final order of removal is

premised on

(a). See Shehu v. U.S. Att’y Gen.,

(3d Cir.

2007) (holding that “denial . . . of [an] applicant’s petition for asylum, withholding of

removal, and relief under the CAT constitutes ‘a final order of removal’ within the meaning

of the statute, as the [applicant] is entitled to no further process before deportation”).

Petitioner filed a timely petition for review.

(b)(1).

III. Summary of the Issues

The issues on appeal are whether the IJ and BIA erred in concluding that Petitioner

(1) did not establish a legally cognizable PSG, and (2) that Petitioner did not demonstrate

2 he suffered past persecution or has a well-founded fear of future persecution based on his

proposed PSG.

IV. Standard of Review

When the BIA adopts and affirms the IJ’s decision, as it did here, the Court reviews

both decisions. See Sandie v. U.S. Att’y Gen.,

(3d Cir. 2009). Whether

a petitioner’s proposed PSG is legally cognizable presents a “mixed question of law and

fact, since the ultimate legal question of cognizability depends on underlying factual

questions concerning the group and the society of which it is a part.” S.E.R.L. v. U.S. Att’y

Gen.,

(3d Cir. 2018). Thus, we must use de novo review to determine

“the ultimate legal conclusion as to the existence of a particular social group[.]”

On

the other hand, we review underlying factual findings applying the highly deferential

“substantial evidence” standard,

(citing Lukwago v. Ashcroft,

(3d

Cir. 2003)), which means that “factual ‘determinations will be upheld if they are supported

by reasonable, substantial, and probative evidence in the record considered as a whole,’”

(citing Kang v. Att’y Gen.,

(3d Cir. 2010)).

V. Analysis

To qualify for asylum, an applicant bears the burden of establishing that he or she

is a “refugee” under I.N.A § 101(a)(42)(A); 8 U.S.C.A § 1101(a)(42)(A). The term refugee

is defined, in pertinent part, as any person who is unable or unwilling to return to their

country of nationality “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.” Id. At issue in this case are two relevant terms: “particular social group” and

3 “persecution.” We presume familiarity with the facts of the case and address each issue in

turn.

1. Particular Social Group

As a threshold matter, asylum applicants must demonstrate that their proposed PSG

is legally cognizable. S.E.R.L.,

. To establish the existence of a PSG,

petitioners must show “‘that the [proposed] group . . . is (1) composed of members who

share a common immutable characteristic, (2) defined with particularity, and (3) socially

distinct within the society in question.’”

at 540 (quoting Matter of M-E-V-G-,

(BIA 2014)).

This Circuit has yet to decide whether the proposed group here—”Salvadoran male

students that oppose gang activity”—qualifies as a cognizable particular social group for

the purposes of asylum. However, we have rejected similar proposed groups for the

purposes of asylum. Valdiviezo-Galdamez v. U.S. Att’y Gen.,

(3d Cir.

2011) (rejecting the proposed PSG “Honduran youth who have been actively recruited by

gangs but have refused to join because they oppose the gangs” as lacking particularity).

Moreover, the BIA has held that “unwilling gang recruits” do not qualify as a

particular social group. Matter of N-C-M-,

, 535 n.1 (BIA 2011); see

also Matter of S-E-G-,

(BIA 2008) (concluding that young

Salvadorans who have resisted gang recruitment efforts do not constitute a cognizable

PSG); Matter of E-A-G-,

, 594–95 (BIA 2008) (rejecting classification

of “persons resistant to gang membership” as a PSG). Nevertheless, we conduct our own

analysis on the PSG issue.

4 i. Immutable Characteristics

Petitioners applying for asylum must demonstrate that their proposed PSG refers to

“an individual who is a member of a group of persons all of whom share a common,

immutable characteristic . . . [e.g.,] an innate one such as sex, color, or kinship ties, or in

some circumstances . . . a shared past experience such as former military leadership or land

ownership.” Matter of Acosta, 19 I. & N. Dec 211, 233 (BIA 1985) (rejecting claimed

social group of Salvadoran taxi cooperative drivers because characteristics that defined taxi

drivers were not immutable as the drivers could change jobs).

The characteristic “must be one that the members of the group either cannot change,

or should not be required to change because it is fundamental to their individual identities

or consciences.” Id.; see also Guzman Orellana v. U.S. Att’y Gen.,

, 178–79

(3d Cir. 2020) (concluding that the PSG of witnesses who “publicly provide[d] out of court

assistance to law enforcement” was immutable); Lukwago,

(concluding

that the applicant’s “past experience of abduction, torture, and escape with other former

child soldiers . . . [and] [h]is status as a former child soldier is a characteristic he cannot

change and one that is now, unfortunately, fundamental to his identity”); Lwin v. I.N.S.,

, 510–12 (7th Cir. 1998) (concluding that “parent[s] of a student democracy

activist” qualified as a PSG because its members shared a common, immutable

characteristic, but remanding on the issue of whether there was a sufficient nexus of

persecution to that PSG).

In this case, Petitioner’s proposed PSG, “Salvadoran male students that oppose gang

activity,” is not immutable. As the IJ noted, although Petitioner’s status as a Salvadoran

5 and male are immutable characteristics “that cannot be changed by the group’s members,

or should not be required to change because it is fundamental to their individual identities

or consciences,” Appx. 41–42 (citing Acosta, 19 I. & N. Dec. at 233), his status as a student

is subject to change and is therefore not immutable. In fact, Petitioner’s status as a student

has already changed since he has graduated from high school and is no longer a student.

ii. Particularity

Under the particularity requirement, which is “definitional in nature,” a proposed

PSG must “be defined by characteristics that provide a clear benchmark for determining

who falls within the group,” Matter of M-E-G-V-, I. & N. Dec. at 239, 241, and in such a

way that “the members of society generally agree on who is included in the group,” Matter

of W-G-R-,

. The proposed group may not be “amorphous, overbroad,

diffuse, or subjective,” but instead must be specific and have “definable boundaries.”

Matter of M-E-G-V-, I. & N. Dec. at 239 (citing Ochoa v. Gonzales,

, 1170–

71 (9th Cir. 2005)).

As the BIA has noted, “not every immutable characteristic is sufficiently precise to

define a particular social group.” Matter of W-G-R-,

; see, e.g.,

Escobar v. Gonzalez,

(3d Cir. 2005) (refusing to recognize a PSG

because the characteristics of “[p]overty, homelessness and youth are far too vague and all

encompassing to . . . set the perimeters for a [PSG],” and noting that “[t]he lack of an outer

limit counsels against a designation that would appear to be contrary to congressional

intent”); In re A-M-E & J-G-U-,

(BIA 2007) (rejecting “wealthy

Guatemalans” as a PSG because the group was not sufficiently particular); Orellana-

6 Monson v. Holder,

, 521–22 (5th Cir. 2012) (concluding that the proposed

group—”men who were recruited but refused to join Mara 18”—lacked particularity

because it was “too amorphous since it encompasses a wide swath of society crossing many

political orientations, lifestyles, and identifying factors”).

Similarly, here, Petitioner has failed to demonstrate the boundaries of or a

benchmark for determining who belongs in his proposed group. While Petitioner contends

that students from his school wearing blue shirts is an identifying feature, these

characteristics do not form part of his PSG. As the IJ noted, Salvadoran male students that

oppose gang activity could include a very broad group of people of all ages. Thus, the

proposed PSG is not sufficiently particular.

iii. Social Distinction

In Matter of M-E-V-G-, the BIA abandoned its “social visibility” standard and

instead adopted the “socially distinct” standard.

. This reversal was

meant to clarify that the inquiry of this portion of the test is to determine whether the

proposed group is “perceived as a group by society,” but it does not require literal “ocular

visibility.”

In this fact-based analysis, one must consider how “societal considerations

influence whether the people of a given society would perceive a proposed group as

sufficiently separate or distinct to meet the ‘social distinction’ test.”

.

Importantly, the social distinction prong is determined by the perception of the

society in question, not of the persecutor.

; Matter of S-E-G-, 24 I. & N. Dec. at

582 (denying asylum for the proposed group of “Salvadoran youths who have resisted gang

recruitment, or family members of such Salvadoran youth” because the applicant is “not in

7 a substantially different situation from anyone who has crossed the gang, or who is

perceived to be a threat to the gang’s interests”); Matter of E-A-G-,

(BIA 2008) (concluding that PSG of “persons resistant to gang membership” was not

sufficiently socially distinct to “allow others to identify its members as part of such a

group”).

The proposed PSG here is not socially distinct. As the IJ noted, male students are

not distinguishable within society from other students because anyone who traverses the

rival gang’s territory may be subject to the gang’s persecution. Furthermore, during the

two incidents where Petitioner was beaten up, by individuals that he believed were

members of the Barrio 18 gang, he did not engage in the conduct that he alleges makes his

proposed PSG socially distinct, such as wearing a blue uniform or riding a public bus that

crosses through a rival gang’s territory. Therefore, the IJ and the BIA were both correct in

concluding that Petitioner’s proposed PSG is not socially distinct.

Accordingly, the proposed PSG is not legally cognizable.

2. Persecution

Even if Petitioner had established a legally cognizable PSG, he has not demonstrated

a sufficient nexus between his proposed PSG and alleged persecution. An applicant may

apply for asylum based on past persecution or a well-founded fear of future persecution.

Lukwago,

;

(b)(1). If past persecution on account of a

protected status is established, a presumption arises that the applicant has a well-founded

fear of future persecution based on the protected characteristic.

(b)(2).

8 This Court has considered the meaning of persecution many times. Persecution can

include “threats to life, confinement, torture, and economic restrictions so severe that they

constitute a threat to life or freedom,” but it “does not encompass all treatment that our

society regards as unfair, unjust, or even unlawful or unconstitutional.” Fatin v. I.N.S.,

(3d Cir. 1993). Also excluded from the meaning of persecution are “harsh

conditions shared by many other persons,”

(citing Acosta, 19 I. & N. Dec. at 222), and

“isolated incidents that do not result in serious injury,” Voci v. Gonzales,

(3d Cir. 2005).

On the other hand, as Petitioner argues, a threat may be a form of persecution if

“concrete and menacing” based on the surrounding circumstances. Herrera-Reyes v. U.S.

Att’y Gen.,

(3d Cir. 2020) (concluding a threat was past persecution

where armed men forced petitioner into a car, robbed him at gunpoint, and threatened to

kill him if they ever saw him again). An asylum applicant may also demonstrate a fear of

future persecution. To show a “well-founded fear of persecution,” the applicant need not

show that it is “more likely than not” that he will be persecuted in his country; “it is enough

that persecution is a reasonable possibility.” I.N.S. v. Cardoza-Fonseca,

(1987).

Petitioner presents various incidents that involve abhorrent crimes purportedly

committed by gangs. However, he was the victim in only two of these incidents. We do

not discount Petitioner’s experiences and his genuine fear of the gangs in his home country.

We also do not deny the horrific crimes that the gangs have perpetrated against Petitioner’s

family and friends. However, Petitioner has failed to provide a sufficient nexus between

9 his alleged persecution and membership in his proposed PSG. From Petitioner’s telling

there is no evidence that the two incidents where he was beaten up occurred because he

was a male student who opposed gangs. During the first incident he was playing soccer,

before the start of the school year, with friends and during the second incident a police

officer stopped him while walking outside.

Furthermore, while reprehensible, the beatings did not rise to the level of “severe”

and “extreme” harm required for relief. Compare Kibinda v. U.S. Att’y Gen.,

(3d Cir. 2007) (concluding petitioner’s detention by Angolan army did not rise to

level of persecution even though the injury he suffered resulted in stitches and a scar); with

Voci,

(concluding past persecution where petitioner “suffered multiple

beatings, seven of which he characterized as severe, and at least one of which resulted in a

broken knee and an extended hospital stay” and “police attempted to intimidate his family

members and threatened their safety if [he] refused to abandon his political activities”).

Petitioner has not claimed severe or lasting injury from the two beatings nor additional

threats. Unfortunately, it appears that Petitioner was a victim of generalized gang violence

in El Salvador, which does not make him eligible for relief.

VI. Conclusion

Accordingly, we deny the petition for review.

10