333 F. App'x 845

Manuel CALEL-CHITIC, Petitioner v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent.

No. 08-60440.

United States Court of Appeals, Fifth Circuit.

June 16, 2009.

Lawrence Erik Rushton, Rushton Law Firm, Bellaire, TX, for Petitioner.

Juria L. Jones, Thomas Ward Hussey, Director, Luis Enrique Perez, Norah Aseo-li Schwarz, Don George Scroggin, U.S. Department of Justice, Office of Immigration Litigation, Washington, DC, Sharon A. Hudson, U.S. Citizenship & Immigration Services, Houston, TX, for Respondent.

Before REAVLEY, WIENER, SOUTHWICK, Circuit Judges.

PER CURIAM: *

Petitioner Manuel Calel-Chitie (“Petitioner”) arrived in the United States in *8462004 from Guatemala and sought asylum here. He contends that because he witnessed a crime committed by government officials in his hometown, he is subject to being persecuted on return there either (1) as a member of the social group comprising government informants or (2) for his implicit pro-State political view. The Immigration Judge (“IJ”) held that Petitioner is ineligible for a grant of asylum, even though his life might be in danger if he returns to his hometown, because any persecution that would occur there would be based on neither his membership in a social group nor his political views. The Bureau of Immigration Appeals (“BIA”) agreed, as do we, so we deny Petitioner’s petition for review.1

I.FACTS AND PROCEEDINGS

The facts are not in dispute. While walking home from school in 1998 in their home town of Chiche, Guatemala, Petitioner and his brothers saw local officials, former military officers, and other men unloading military-style weapons from a truck in what appeared to be an illicit arms trafficking transaction. The men beat Petitioner and his brothers and warned them never to tell anyone what they had seen. Petitioner and his brothers have endured threats ever since, and one brother was killed in an apparently related incident. Some six years later, Petitioner fled to this country to escape the threats on his life.

Following his illegal entry into the United States, Petitioner sought asylum, which the IJ denied. On remand by the BIA on an unrelated legal question, the IJ again denied Petitioner’s asylum petition. The BIA affirmed, issuing a final removal order.

II.STANDARD OF REVIEW

We have jurisdiction over final removal orders of the BIA.2 We review the BIA’s factual findings for substantial error and its legal conclusions de novo. 3 In this case, we will consider the underlying IJ opinion, because the BIA largely adopted the findings of the IJ without elaboration.4 Reversal is permissible only if the evidence does not just support a contrary conclusion, but compels it.5 The applicant for asylum has the burden of proving that the evidence compels reversal.6

III.ANALYSIS

An alien seeking asylum pursuant to 8 U.S.C. § 1158(b)(1) must first demonstrate that he is a “refugee,” that is, he is unable or unwilling to return to his coun*847try of citizenship or residence because of a “well-founded fear of persecution on account of [ (1) ] race, [ (2) ] religion, [ (3) ] nationality, [ (4) ] membership in a particular social group, or [ (5) ] political opinion.” 7 Petitioner contends that the latter two enumerated bases — membership in a particular social group and political opinion — apply to his case.8

A. Jurisdiction

The government contends that we are without jurisdiction to hear this case because Petitioner failed to exhaust his administrative remedies, as required by statute.9 According to the government, Petitioner never specifically raised the question whether his position as a witness to a crime involving government officials placed him in a specific social group for the purposes of an asylum analysis. We cannot accept the government’s view. Petitioner has maintained since the initiation of this action that he is in danger because of the illegal acts that he witnessed being committed by former and current government officials. The IJ ruled that Petitioner failed to prove his eligibility for asylum on any of the five enumerated bases, specifically stating that Petitioner’s contention that he feared retaliation by those he saw committing the criminal acts was not a permitted ground for asylum. We conclude that Petitioner sufficiently raised the issues now before us, so that we have jurisdiction to consider his petition for review.

B. Membership in a Social Group

As noted, Petitioner asserts two grounds in support of his asylum claims: (1) He is a member of a particular social group consisting of witnesses to crimes committed by government officials (“government witnesses”); 10 (2) his tormentors are persecuting him because of his political opinion, viz., they perceive him as anti-crime and therefore pro-State. As Petitioner offers no evidence whatsoever in support of the latter argument, and finding it singularly unpersuasive, we reject it out of hand.

Petitioner’s social-group argument does him little more good. Although it is not impossible that some “particular social group” could be made up of government witnesses, he has not demonstrated that such is the case here. A social group must be readily identifiable11 and have at least one immutable characteristic so fundamental to an individual’s identity that he can*848not change it or should not be required to change it.12 Critically, the individual seeking asylum must demonstrate that his persecution is because of his membership in that social group. “The social group category was not meant to be a ‘catch all’ applicable to all persons fearing persecution.” 13

Petitioner has shown only that a gang of local criminals has threatened him because they do not want to be caught and convicted. Petitioner has not shown that he is identifiable as a member of a determinable group of government witnesses who suffer persecution in Guatemala, nor that his tormentors have any interest in persecuting government witnesses generally as a group. Petitioner’s putative persecutors appear interested only in insulating themselves from prosecution. The threats are specific to Petitioner and to one occurrence that he and his brothers witnessed on one afternoon in 1998, and not because of his membership in any recognizable social group.14 Criminal retaliation such as this is not a basis for asylum,15 and holding otherwise would transform asylum into a garden variety witness protection program.

Petitioner has not established that the persecution he fears targets members of one or more of the five exclusive categories enumerated in 8 U.S.C. § 1101(a)(42), so he fails to meet the definition of “refugee.” As this ends our inquiry, we do not reach the question whether his fear of persecution is well-founded.

IV. CONCLUSION

Petitioner has failed to demonstrate that he is eligible for asylum, so his petition for review is DENIED.

Calel-Chitic v. Holder
333 F. App'x 845

Case Details

Name
Calel-Chitic v. Holder
Decision Date
Jun 16, 2009
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333 F. App'x 845

Jurisdiction
United States

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