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Cantarero v. Holder

United States Court of Appeals, First Circuit

October 31, 2013

Kevin Fabricio Claros CANTARERO, Petitioner,
v.
Eric H. HOLDER, Jr., Attorney General, Respondent.

Page 83

Timothy J. Nutter, with whom Law Office of Timothy J. Nutter was on brief, for petitioner.

Matthew B. George, Trial Attorney, Office of Immigration Litigation, with whom Stuart F. Delery, Acting Assistant Attorney General and Mary Jane Candaux, Assistant Director were on brief, for respondent.

Before LYNCH, Chief Judge, HOWARD and KAYATTA, Circuit Judges.

HOWARD, Circuit Judge.

Kevin Fabricio Claros Cantarero (" Claros" ), a citizen and native of El Salvador, is an ex-member of a violent criminal street gang based in the United States. Claiming that he would face persecution and torture on account of his former gang membership if repatriated, Claros applied for asylum, withholding of removal, and protection under the Convention Against Torture (" CAT" ). An Immigration Judge (" IJ" ) denied his applications, and the Board of Immigration Appeals (" BIA" ) affirmed. We deny his petition for review.

I.

Claros entered the United States without inspection in 2004, when he was twelve years old. He came to join his parents, who had arrived in 1992 and who became beneficiaries of the Temporary Protected Status program.[1] He has lived here continuously since then.

In April 2010, the Bureau of Immigration and Customs Enforcement (" ICE" ) took Claros into custody [2] and served him with a Notice to Appear charging him as removable under section 212(a)(6)(A)(i) of the Immigration and Nationality Act (" INA" ). See 8 U.S.C. ยง 1182(a)(6)(A)(i). Claros conceded removability and applied for asylum, withholding of removal, and relief under the CAT.

At an evidentiary hearing before an IJ, Claros testified that he joined the East Boston arm of the 18th Street gang when he was sixteen years old. The 18th Street gang is a prominent violent criminal gang that is active throughout the United States and Latin America. See Luz E. Nagle, Criminal Gangs in Latin America: The Next Great Threat to Regional Security and Stability?, 14 Tex. Hisp. J.L. & Pol'y 7, 9 (2008). Claros learned that gang membership entailed engaging in a variety of illicit activities, including robberies, thefts, and drug dealing. He received several tattoos identifying him as a member of the 18th Street gang, some of which are prominently displayed.

Page 84

Two years after joining the gang, Claros became afraid of the violent nature of gang life following a gang-related shooting in the area where he was partying one night. Soon afterward, Claros experienced a religious conversion and decided to leave the gang. Some members of his gang beat him as a result. The leader of the gang warned Claros that membership in the gang was a lifelong commitment and that if he tried to leave, the gang would kill him or members of his family.

Claros testified that he feared persecution in El Salvador on account of his former gang membership. Specifically, he feared reprisals from the Salvadoran branch of the 18th Street gang for his having renounced gang membership, as well as persecution at the hands of rival gangs and police authorities. He would become an easy target, argued Claros, because of his gang tattoos.

The IJ found that Claros had indeed joined the 18th Street gang in the United States and was sincere in his desire to leave the gang. The IJ, however, rejected Claros's argument that, as a former member of the gang, he is a member of a protected social group eligible for asylum or withholding of removal. Claros's claim under the CAT fared no better, as the IJ found no evidence that the government of El Salvador is more likely than not to torture Claros or to acquiesce in his torture.

The BIA agreed with the IJ and dismissed Claros's appeal. It found controlling the principles announced in Matter of E-A-G-,24 I. & N. Dec. 591 (BIA 2008), where it held that individuals erroneously perceived as gang members cannot constitute a " particular social group" under the INA. As in Matter of E-A-G-, the BIA here was persuaded by the Ninth Circuit's rationale in Arteaga v. Mukasey, 511 F.3d 940, 945-46 (9th Cir.2007), that Congress could not have intended to offer refugee status based on an alien's membership in a violent criminal street gang in this country. The BIA noted that the Seventh Circuit recognized an ex-gang member as a member of a protected ...


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