### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-60539 Summary Calendar

JUAN BAUTISTA HERNANDEZ-HERNANDEZ,
Petitioner

v. ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL, Respondent

Petition for Review of an Order of the Board of Immigration Appeals BIA No. A098 963 974

Before KING, CLEMENT, and HIGGINSON, Circuit Judges. PER CURIAM: * Juan Bautista Hernandez-Hernandez, a citizen of El Salvador, petitions this c ourt to r eview the d enial of his a pplication for withholding of removal by the Board of I m migration Appeals (BIA). He challenges the BIA’s determination t h at he failed to establish past persecution or a fear of future p erse c u t i o n o n account of m e m bership i n a particular social group. According to HernandezHernandez, he is a member of a protected social group com p rised of men who have defied forced recruitment by gangs in E l Salvador. He objects to the factors U n i t e d S t a te s C o u rt o f A p p e al s

F i f t h C i rc u i t 

### F I L E D March 19, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-60539 Document: 00512179031 Page: 1 Date Filed: 03/19/2013No. 12-60539

used by the BIA to de t e r m i ne whether a group qualifies for protected status, arguing that the social vi sibility and particularity test is confusing and contrary to Congress’s intent. He urges that the “plain meaning of a group is two or more people c ategorized together based on a common a ttribute” and that a particular social group is defined by the social behavior of its members. To obtain withho l d i n g o f removal, an applicant must show a clear probability that he will be persecuted upon his return to his home country. Roy

v. Ashcroft , 389 F.3d 1 32, 138 (5th Cir. 2004). “A clear probability means that it is more likely than not that the a pplicant’s life o r freedom would be threatened by persecution o n account of either his r a ce, religion, nationality, membership in a particular social group, or political opinion.” I d. (internal quotation marks and citat i o n o mitted). To establish p ersecution b ased on membership in a particular social group, the a pplicant must show that he is a member “of a group of p erson s that share a common immutable characteristic that they either cannot change or should not b e required to change because it is fundamental to their i n dividual identities or consciences.” O rellana-Monson v. Holder, 685 F.3d 5 1 1 , 518 (5 th Cir. 2012). The BIA considers the following factors to determ i n e “wh e t h e r a p articular social group exists: (1) whether the group’s shared characteristic gives the m ember s the requisite social visibility to m ake them readily identifiable in society and (2) w hether the group can be define d w i t h

s uf f i c i e nt particularity to delimit its membership.” Id. at 5 19 (internal quotatio n marks and citation omitted). In Orellana-Monson , we hel d that the “particularity and social visibility test established b y the BIA is entitled to deference under Chevron .” 685 F.3d at 521. We a pplied the test and determined that men who wer e r e c r u i t e d but refused to join a Salvadoran gang were not a “particular social group” for asylum and w ithholding of r emoval purposes because they l a cked the requisite social visibility and particularity. Id. at 521-22. We reach the same conclusion in this case. The petition for review is DENIED.
2 Case: 12-60539 Document: 00512179031 Page: 2 Date Filed: 03/19/2013