2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-14-2010

Ronald Alberto Zavaleta-Lopez v. Atty Gen USA

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3673

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IMG-054 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 08-3673

___________

RONALD ALBERTO ZAVALETA-LOPEZ,

Petitioner

v.

ATTORNEY GENERAL OF THE UNITED STATES,

Respondent

____________________________________

On Petition for Review of an Order of the

Board of Immigration Appeals

(Agency No. A98-797-024)

Immigration Judge: Honorable Eugene Pugliese

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

December 16, 2009

Before: FUENTES, ROTH and VAN ANTWERPEN, Circuit Judges

(Opinion filed: January 14, 2010)

___________

OPINION

___________

PER CURIAM

Almost immediately after Ronald Alberto Zavaleta-Lopez, a citizen of El

Salvador, entered the United States without inspection in 2005, the Government charged

him with removability. Conceding the charge, Zavaleta-Lopez sought asylum,
2

withholding, and relief under the Convention Against Torture (“CAT”). 

In his affidavit in support of his application, Zavaleta-Lopez stated that he had

been robbed more than once and threatened by the “maras” or gangs. R. 190. He noted

one incident in particular in which the maras robbed and assaulted him and threatened to

kill him if he denounced them to the authorities. Id. Apparently from that incident, the

maras obtained Zavaleta-Lopez’s cell-phone number and called to threaten him, telling

him they were watching his every move. Id. He stated in his affidavit that he did not

seek help from the authorities. Id. 

At his hearing, Zavaleta-Lopez’s lawyer explained that Zavaleta-Lopez based his

claims on the treatment he faced as a member of the particular social group described as

young men who have been targeted by gangs for membership and who have refused to

join gangs. R. 98. In his testimony, Zavaleta-Lopez elaborated that he had problems with

members of the Mara Salvatrucha in his native El Salvador in 2004, namely that they

pressed him to join the gang, and threatened that they would kill him if he did not join. R.

87-88. When he told his parents about the problems he was having, they moved “that

same year” (which appears also as “2001” in the transcript). R. 89. After the move, he

regularly returned to his old neighborhood to visit his girlfriend. R. 90. During one visit

at the end of December 2004, gang members accosted him and told him to join them. Id. 

When he turned his back on them, they pulled guns on him, robbed him, and assaulted

him. Id. He repeated that they subsequently called his home and harassed him to join
3

them, threatening that they would kill him if he did not join. R. 91. Zavaleta-Lopez

reported the incident to the police, but police efforts to capture the perpetrators were

unsuccessful. R. 91-92. He testified that gang members were still looking for him after

he left the country in 2005. R. 94.

The Immigration Judge (“IJ”) denied Zavaleta-Lopez’s applications for relief. The

IJ recognized that gang violence is a problem in El Salvador but held that Zavaleta-Lopez

had not shown that he was targeted on the basis of a protected ground. The IJ concluded

that Zavaleta-Lopez had failed to identify a particular social group of which he was a part

and had not presented any evidence that the gang recruitment related in any way to an

actual or imputed political opinion held by Zavaleta-Lopez. The IJ separately rejected the

CAT claim, noting, among other things, that the El Salvadoran government, which took

steps to try to find Zavaleta-Lopez’s attackers, had not tortured or acquiesced to any

torture of Zavaleta-Lopez. 

Zavaleta-Lopez appealed the denial of his asylum claim to the Board of

Immigration Appeals (“BIA”). R. 12-16. Through counsel, he highlighted his testimony

that he did not join the Mara Salvatrucha because gang members “were bad people who

kill and rob,” and argued that qualified for asylum because he refused gang membership

based on his religious beliefs. R. 16. 

The BIA also concluded that Zavaleta-Lopez had not shown that his membership

in a particular social group was a reason for the alleged persecution by the Mara
 We agree with the Respondent that by not addressing in his brief the agency’s 1

conclusions regarding his withholding and CAT claims, Zavaleta-Lopez has waived these

issues on appeal. See Ghana v. Holland, 226 F.3d 175, 180 (3d Cir. 2000). 

4

Salvatrucha. The BIA noted the problem with gangs in El Salvador, but agreed with the

IJ that Zavaleta-Lopez’s proffered social group was too sweeping and without the social

visibility required to qualify as a particular social group. The BIA also noted that any

political opinion, imputed or otherwise, of Zavaleta-Lopez was unrelated to the Mara

Salvatrucha’s recruitment efforts. The BIA held that no evidence supported ZavaletaLopez’s argument on appeal that he was targeted by the gang, or that he opposed them, on

the basis of his religious beliefs. The BIA rejected Zavaleta-Lopez’s claims for asylum,

withholding, and CAT relief. 

Zavaleta-Lopez, through counsel, presents a petition for review. We have

jurisdiction pursuant to 8 U.S.C. § 1252. We consider questions of law de novo. See

Gerbier v. Holmes, 280 F.3d 297, 302 n.2 (3d Cir. 2001). We review factual findings for

substantial evidence. See Butt v. Gonzales, 429 F.3d 430, 433 (3d Cir. 2005).

In his petition, Zavaleta-Lopez argues that he is entitled to asylum and assigns two

errors to the IJ. He contends that the IJ erred in concluding that he had not suffered past

persecution based on a protected ground, and that the IJ erred in holding that he is not a

member of a particular social group. On review, we find no error, and we will deny the 1

petition for review. 

To be eligible for asylum, a petitioner must show past persecution or a well-
5

founded fear of future persecution, by the government or forces that the government is

not able or willing to control, on account of a specific statutorily enumerated ground,

namely race, religion, nationality, membership in a particular social group, or political

opinion. See 8 U.S.C. § 1101(a)(42); Kibinda v. Attorney Gen. of the United States, 477

F.3d 113, 119 (3d Cir. 2007). Zavaleta-Lopez did not establish past persecution on

account of a protected ground.

To establish persecution on the basis of membership in a social group, “an alien

must (1) identify a group that constitutes a ‘particular social group’ . . . , (2) establish that

he or she is a member of that group, and (3) show that he or she would be persecuted or

has a well-founded fear of persecution based on that membership.” Fatin v. INS, 12 F.3d

1233, 1240 (3d Cir. 1993). A particular social group, as the BIA has explained in a

definition we have accepted, is “‘a group of persons all of whom share a common,

immutable characteristic.’” Id. (quoting Matter of Acosta, 19 I. & N. Dec. 211, 233 (BIA

1985). We have recognized the difficulty of discerning the contours of particular social

groups, but we focus on whether putative group members possess common, immutable

characteristics such as race, gender, or a prior position, status, or condition, or

characteristics that are capable of being changed but are of such fundamental importance

that persons should not be required to change them, such as religious beliefs. 

See Escobar v. Gonzales, 417 F.3d 363, 366-67 (3d Cir. 2005).

In this case, we agree with the agency that Zavaleta-Lopez did not identify a
6

particular social group as that term is used in the asylum statute. As Zavaleta-Lopez

notes, we previously declined to decide a similar question in the first instance, namely

whether “‘young Honduran men who have been actively recruited by gangs and who have

refused to join the gangs’” is a particular social group. Valdiviezo-Galdamez v. Attorney

Gen. of the United States, 502 F.3d 285, 290 (3d Cir. 2007). However, since that

decision, the BIA has weighed in on a similar question even closer to the question at issue

in this case. Namely (and contrary to Zavaleta-Lopez’s implications to the contrary), in

Matter of S-E-G-, the BIA held that “a proposed group of young Salvadorans who have

been subject to recruitment efforts by criminal gangs, but who have refused to join for

personal, religious, or moral reasons” did not constitute a particular social group. See 24

I. & N. Dec. 579, 588 (BIA 2008). The BIA concluded that the group simply did not

have a shared characteristic with the social visibility required under its precedent. See id.

at 587-88. After a review of the Department of State Country Report in that case, the

BIA also determined that the risk of gang violence was not limited to young men who

resist recruitment but instead affected all segments of the population. See id. The

evidence is similar in this case; for instance, the Country Report in this case highlights

that gang-related violence is widespread. R. 17. In light of the background evidence, the

BIA reasonably relied on its prior precedents to conclude that the social group ZavaletaLopez proposed is simply too diffuse and without the common, immutable characteristics

necessary to establish the contours of a particular social group. 
7

Furthermore, Zavaleta-Lopez failed to establish with his testimony and other

evidence that he would be persecuted on account of his political opinion or an imputed

political opinion. His simple resistance to the recruitment efforts of the Mara Salvatrucha

is not enough. See Lukwago v. Ashcroft, 329 F.3d 157, 173 (3d Cir. 2003) (citing INS v.

Elias-Zacarais, 502 U.S. 478, 483 (1992), for its support of the proposition that mere

opposition to forced conscription into guerilla or rebel forces is not the same as political

opposition to such a group). 

Moreover, there is no evidence in the record that Zavaleta-Lopez was targeted by

the Mara Salvatrucha because of his religious beliefs. Although he raised this issue

before the BIA, he did not present evidence of this in his affidavit or testimony (he did

not even check the box for religious persecution on his asylum application). At his

hearing, Zavaleta-Lopez said that he resisted the efforts to recruit him simply because the

Mara Salvatrucha were “bad people who kill and rob.” R. 88. 

In sum, although Zavaleta-Lopez faced violence from gangs in El Salvador, he did

not prove that he was singled out for past persecution by those gangs on the basis of one

of the protected grounds. And he has not shown that he has a well-founded fear of future

persecution. Generally harsh conditions shared by many other persons, such as the

widespread gang violence described in the Country Report in this case, do not amount to

persecution. See Al-Fara v. Gonzales, 404 F.3d 733, 740 (3d Cir. 2005). For these

reasons, we will deny his petition for review.