1

The Honorable Raymond C. Clevenger, III, Circuit Judge of the United States

Court of Appeals for the Federal Circuit, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 10-3521

___________

Jose Rene Constanza, *

*

Petitioner, *

* Petition for Review 

v. * of an Order of the 

* Board of Immigration Appeals.

Eric H. Holder, Jr., Attorney *

General of the United States, * [PUBLISHED]

*

Respondent. *

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Submitted: June 13, 2011

Filed: August 1, 2011

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Before COLLOTON, CLEVENGER,1

 and BENTON, Circuit Judges.

___________

PER CURIAM.

Jose Constanza, a native and citizen of El Salvador, petitions for review of an

order of the Board of Immigration Appeals (BIA) that affirmed an immigration

judge’s (IJ) denial of asylum, withholding of removal, and relief under the Convention

Against Torture (CAT). We deny the petition. 
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Constanza arrived in the United States at Douglas, Arizona, on or about

November 17, 1997. At the time he arrived, Constanza was not admitted or paroled

after inspection by an immigration officer. Constanza was granted Temporary

Protective Status in 2002. On December 2, 2009, Constanza was convicted of

domestic assault by strangulation and was placed on probation.

 

On February 2, 2010, the Department of Homeland Security (DHS) commenced

removal proceedings against Constanza. The DHS filed a Notice to Appear charging

Constanza with removability as: (1) an alien present without admission or parole

pursuant to 8 U.S.C. § 1182(a)(6)(A)(I); and (2) an alien convicted of a crime

involving moral turpitude pursuant to 8 U.S.C. § 1182(a)(2)(A)(i)(I). Constanza

admitted the first charge and conceded to removability on that ground, but denied the

second charge. Based on the record of conviction, the IJ found Constanza removable

on the second charge. Constanza, however, applied for asylum, withholding of

removal, and relief under CAT on the ground that he will be persecuted by Mara

Salvatrucha (MS-13) gang members in El Salvador based on his membership in social

groups defined as persons resistant to gang membership, persons who have returned

from the United States and are perceived as affluent, and persons who fear harm to

their families from gangs. 

In support of his application, Constanza testified that he fears returning to El

Salvador because of the gang violence in the country. Constanza also testified that his

family had two encounters with gang violence before he left El Salvador.

Specifically, his nephew was kidnapped and held for ransom in 1995, and his cousin

was robbed and killed in 1996 by gang members. On June 16, 2010, the IJ issued a

written decision denying Constanza’s application. The IJ found Constanza reasonably

credible, but determined that resistance to gang membership, affluence, and fearing

harm from gangs do not constitute particular social groups. Thus, the IJ concluded

that Constanza’s fears of returning to El Salvador do not rise to the level of

persecution for which a grant of asylum could be made. The IJ further concluded that
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Constanza had not adequately demonstrated that he had a reasonable fear of

persecution upon his return to El Salvador for several reasons, including: (1)

Constanza did not flee El Salvador because of gang violence, but left because he was

unable to sufficiently support his family with the wages he earned in El Salvador; and

(2) Constanza’s siblings and children continue to reside in El Salvador and have not

been targeted by gang violence, even though Constanza was known to be in the United

States. Having determined that Constanza did not meet the burden for a grant of

asylum, the IJ determined that he had not met the higher burden for withholding of

removal. The IJ also determined that Constanza failed to show the existence of

changed or extraordinary circumstances regarding his failure to apply for asylum

within the one-year time limit required by law. Finally, the IJ found that Constanza

had not demonstrated government acquiescence to the gang violence. 

On administrative review, the BIA affirmed the IJ’s decision and dismissed

Constanza’s appeal. The BIA held that the IJ did not err in concluding that Constanza

failed to meet his burden of proof on the timeliness of his asylum application. After

an independent analysis of the record, the BIA agreed with the IJ’s finding that

Constanza did not establish past persecution or a well-founded fear of future

persecution by gangs. The BIA further found Constanza’s articulated social groups

too broad and indeterminate for immigration purposes. Thus, the BIA concluded that

Constanza failed meet his burden of proof to justify asylum and withholding of

removal. The BIA also concluded that Constanza failed to meet his burden for CAT

relief. The present appeal followed. 

Where, as here, the BIA issues an independent decision without adopting the

IJ’s conclusions, we review only the BIA decision. Chak Yiu Lui v. Holder, 600 F.3d

980, 983 (8th Cir. 2010). We lack jurisdiction to review the BIA’s determination that

Constanza’s asylum application was barred as untimely filed. See 8 U.S.C. §

1158(a)(3); Chibwe v. Holder, 569 F.3d 818, 820 (8th Cir. 2009). We review the

BIA’s determinations regarding withholding of removal and CAT relief under the
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On appeal, Constanza abandons his argument that he has a well-founded fear

of persecution based on his membership in the particular social group defined as

“persons who have returned from the United States and are perceived as affluent.”

Accordingly, we do not address the argument in this opinion.

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substantial evidence standard. Khrystotodorov v. Mukasey, 551 F.3d 775, 781 (8th

Cir. 2008). Because Constanza is removable as a “criminal alien,” our jurisdiction is

limited to constitutional claims and questions of law. Mocevic v. Mukasey, 529 F.3d

814, 816 (8th Cir. 2008) (citing 8 U.S.C. §§ 1252(a)(2)(C) and (a)(2)(D)). We review

the BIA’s legal determinations de novo, giving substantial deference to its

interpretation of statutes and regulations. Davila-Mejia v. Mukasey, 531 F.3d 624,

627 (8th Cir. 2008).

An applicant is entitled to withholding of removal if he demonstrates, a “clear

probability” that he will face persecution upon repatriation on account of one of five

protected grounds, including membership in a social group. INS v. Stevic, 467 U.S.

407, 430 (1984); see 8 U.S.C. § 1231(b)(3)(A) (listing protected grounds). We have

held that a “clear probability” of future persecution is an “‘extreme concept’ that

involves the infliction or threat of death, torture, or injury to one’s person or freedom,

on account of a protected characteristic.” Malonga v. Holder, 621 F.3d 757, 764 (8th

Cir. 2010) (quoting Sholla v. Gonzales, 492 F.3d 946, 951 (8th Cir. 2007)). 

Constanza avers that he is entitled to withholding of removal because he has a

well-founded fear of persecution based on his membership in two particular social

groups, defined as: (1) a family that experienced gang violence; and (2) persons

resistant to gang violence.2

 Membership in a particular social group “refer[s] to

persons who hold an immutable characteristic, or common trait such as sex, color,

kinship, or . . . shared past experiences.” Davila-Mejia, 531 F.3d at 628. Moreover,

“[t]he group 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 and consciences.’” Id. (quoting Matter of Acosta, 19 I. & N. Dec.
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211, 233 (BIA 1985), overruled on other grounds by Matter of Mogharrabi, 19 I. &

N. Dec. 439 (BIA 1987)). In addition, a social group requires sufficient particularity

and visibility such that the group is perceived as a cohesive group by society. See id.

at 628-29. 

After a careful review of the record, we agree with the BIA that Constanza’s

articulations of the social groups to which he claims to belong are too broad to be

perceived as social groups by society. Although MS-13 harmed Constanza’s nephew

and cousin in 1995 and 1996, respectively, there is no evidence in the record

indicating that the gang specifically targeted Constanza’s family as a group. Nor does

the record demonstrate that MS-13 will target Constanza’s family in the future,

especially given that Constanza’s siblings and children have continued to reside in El

Salvador and have not been targeted by MS-13. Constanza’s family is no different

from any other Salvadoran family that has experienced gang violence. Thus,

Constanza’s family lacks the visibility and particularity required to constitute a social

group. 

Further, we are persuaded by the BIA’s conclusion, as well as authority from

other circuits, that “persons resistant to gang violence” are too diffuse to be

recognized as a particular social group. See, e.g., Matter of S-E-G-, 24 I. & N. Dec.

579, 588 (BIA 2008); Lizama v. Holder, 629 F.3d 440, 447 (4th Cir. 2011); Larios v.

Holder, 608 F.3d 105, 109 (1st Cir. 2010); Lushaj v. Holder, 380 Fed. Appx. 41, 43

(2d Cir. 2010); Barrios v. Holder, 581 F.3d 849, 855 (9th Cir. 2009); cf. MarroquinOchoma v. Holder, 574 F.3d 574 (8th Cir. 2009) (resistance to gang recruitment is not

political opinion and, therefore, not a protected ground for withholding of removal).

As a result, we conclude that Constanza has not established that the alleged acts of
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To the extent that Constanza argues on appeal for the first time past

persecution generally and a well-founded fear of future persecution based on political

opinion, we are without jurisdiction to address these claims because Constanza has

failed to exhaust his administrative remedies. Sultani v. Gonzales, 455 F.3d 878, 884

(8th Cir. 2006) (“Failure to raise an issue before the agency constitutes a failure to

exhaust administrative remedies and deprives this court of jurisdiction to hear the

matter.”).

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mistreatment by MS-13 occurred because of his membership in a particular social

group.3

 

Finally, Constanza’s petition alleges that he was improperly denied CAT relief

because the government of El Salvador has failed to protect his family or address his

complaints regarding MS-13 in a meaningful way. Constanza further alleges that the

government of El Salvador has failed to bring to justice all members of MS-13 and,

as a result, the threat of torture exists for him country-wide. Constanza’s allegations,

however, amount to nothing more than challenges to factual determinations, which we

lack jurisdiction to review under 8 U.S.C. § 1252(a)(2)(D). See Lovan v. Holder, 574

F.3d 990, 998 (8th Cir. 2009); Mocevic, 529 F.3d at 817; Saintha v. Mukasey, 516

F.3d 243, 249-50 (4th Cir. 2008). 

Accordingly, we deny the petition for review.

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