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Urbina-Mejia v. Holder

March 5, 2010


On Appeal from the United States Board of Immigration Appeals. No. A099 762 100.

The opinion of the court was delivered by: Boyce F. Martin, Jr., Circuit Judge


Submitted: August 24, 2009

Before: MARTIN, SILER, and MOORE, Circuit Judges.

MARTIN, J., delivered the opinion of the court, in which MOORE, J., joined. SILER, J. (p. 14), delivered a separate opinion concurring with Parts I., II., and III.C. of the majority and concurring in the judgment.


Jose Luis Urbina-Mejia seeks review of a Board of Immigration Appeals decision affirming an immigration judge's denial of his applications for withholding of removal under section 241 of the Immigration and Nationality Act, 8 U.S.C. § 1231. The Board of Immigration Appeals erred in finding that Urbina-Mejia was not a member of a particular social group for which he would likely be subject to persecution should he be returned to Honduras. He was a member of the particular group of former gang members, which is impossible to leave save by rejoining the organization. However, Urbina-Mejia failed to show that evidence compelled a finding that he had sufficiently corroborated his testimony with evidence or that he had not committed serious nonpolitical crimes while a member of the gang before coming to the United States. He was thus statutorily ineligible for withholding of removal. We therefore DENY UrbinaMejia's petition.


A. Factual Background

Urbina-Mejia is a native and citizen of Honduras. He arrived in the United States in April 2002 at the age of seventeen to live with his mother in Memphis, Tennessee, where she has been a legal resident for eleven years. He has no criminal record in the United States, has regularly attended church for the last five years, and had been gainfully employed.

On October 4, 2006, Department of Homeland Security agents filed a Notice to Appear in Immigration Court. The Notice charged Urbina-Mejia with removability for violating section 212(a)(6)(A)(i) of the Immigration and Nationality Act (INA) as an alien who entered the United States without being admitted or paroled. During a master calendar hearing, Urbina-Mejia admitted the factual allegations of having entered the United States without being admitted or paroled and conceded removability as charged. However, at a March 13, 2007 hearing, he filed an application for asylum and withholding of removal under the INA and the Convention Against Torture.

Urbina-Mejia asserts that he left Honduras and entered the United States at that time to escape gang life. Urbina-Mejia joined the 18th Street gang in Honduras in 1998 when he was fourteen years old. He asserts that he was inducted at a school party when members of the gang informed him that he was to join their gang that night and told him to go to the football field where they "persuaded" him to join by continuously beating him for eighteen seconds. Following the beating, he was a member of the gang, and he remained so for three years. He testifies that he does not have gang tattoos because he was in the bottom level of the gang and only upper level gang members were tattooed with gang symbols. He demonstrated several gang handsigns on the stand.

He asserts that as a gang member he was told that he would be killed if he did not do as he was told. He testified that he was forced to accompany other gang members as they stopped people and demanded their money and valuables, encounters that sometimes ended in Urbina-Mejia and fellow gang members hitting their victims. He testified that he used a baseball bat to intimidate, and sometimes to harm, the victims. He testified that the 18th Street gang leader taught him to use a nine millimeter handgun in case of altercations with a rival gang, the MS-13 gang. While Urbina-Mejia shot the gun into the air to scare members of the MS-13 gang and was once shot in the foot by a member of MS-13, UrbinaMejia testified that he never seriously injured any rival gang member and that he was otherwise not physically harmed. He testified that he regretted his criminal activities but worried that he would be killed if he did not participate.

Urbina-Mejia also testified that his father has never encountered any difficulty with gangs although he continues to live in the same home and work in the same business. Urbina-Mejia's eight siblings have been robbed by members of the gang, but they have been otherwise unharmed.

B. Immigration Judge's Decision

Following a hearing on the merits, the immigration judge issued a decision on September 4, 2007, denying Urbina-Mejia's application for asylum, withholding of removal, and related remedies. The immigration judge determined that Urbina-Mejia was statutorily ineligible for asylum because he failed to file his asylum application within one year of the time he entered the United ...

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