IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 court to review the denial of his application for withholding of removal by

the Board of Immigration Appeals (BIA). He challenges the BIA’s determination

that he failed to establish past persecution or a fear of future persecution on

account of membership in a particular social group. According to HernandezHernandez, he is a member of a protected social group comprised of men who

have defied forced recruitment by gangs in El Salvador. He objects to the factors

United States Court of Appeals

Fifth Circuit

F I L E D

March 19, 2013

Lyle W. Cayce

Clerk

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not

be published and is not precedent except under the limited circumstances set forth in 5TH CIR.

R. 47.5.4.

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

used by the BIA to determine whether a group qualifies for protected status,

arguing that the social visibility 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 categorized together based on a common attribute” and that a particular

social group is defined by the social behavior of its members.

To obtain withholding of 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 132, 138 (5th Cir. 2004). “A clear probability means that

it is more likely than not that the applicant’s life or freedom would be threatened

by persecution on account of either his race, religion, nationality, membership

in a particular social group, or political opinion.” Id. (internal quotation marks

and citation omitted). To establish persecution based on membership in a

particular social group, the applicant must show that he is a member “of a group

of persons that share a common immutable characteristic that they either

cannot change or should not be required to change because it is fundamental to

their individual identities or consciences.” Orellana-Monson v. Holder, 685 F.3d

511, 518 (5th Cir. 2012). The BIA considers the following factors to determine

“whether a particular social group exists: (1) whether the group’s shared

characteristic gives the members the requisite social visibility to make them

readily identifiable in society and (2) whether the group can be defined with

sufficient particularity to delimit its membership.” Id. at 519 (internal quotation

marks and citation omitted). 

In Orellana-Monson, we held that the “particularity and social visibility

test established by the BIA is entitled to deference under Chevron.” 685 F.3d at

521. We applied the test and determined that men who were recruited but

refused to join a Salvadoran gang were not a “particular social group” for asylum

and withholding of removal purposes because they lacked the requisite social

visibility and particularity. Id. at 521-22. We reach the same conclusion in this

case. The petition for review is DENIED.

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