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Rodas-Orellana v. Holder

United States Court of Appeals, Tenth Circuit

March 2, 2015

BENJAMIN RODAS-ORELLANA, Petitioner,
v.
ERIC H. HOLDER, JR., United States Attorney General, Respondent

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[Copyrighted Material Omitted]

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Catharine A. Davies (Richard M. Lynch, with her on the brief), Bull & Davies, P.C., Denver, Colorado, appearing for Petitioner.

Corey L. Farrell, Attorney (Joyce R. Branda, Acting Assistant Attorney General; Anthony W. Norwood, Senior Litigation Counsel; and Wendy Benner-León, Trial Attorney, on the brief), United States Department of Justice, Washington D.C., for Respondent.

Before BRISCOE, MATHESON, and MURPHY, Circuit Judges.

OPINION

ON PETITION FOR REVIEW FROM ORDERS OF THE BOARD OF IMMIGRATION APPEALS

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MATHESON, Circuit Judge.

Benjamin Rodas-Orellana entered the United States without inspection to escape gang recruitment in El Salvador. The Department of Homeland Security (" DHS" ) initiated removal proceedings. Mr. Rodas-Orellana applied for asylum and withholding of removal under the Immigration and Nationality Act (" INA" ).[1]

The Immigration Judge (" IJ" ) and the Board of Immigration Appeals (" BIA" ) denied his application because he failed to show a well-founded fear of persecution on account of membership in a particular social group. They concluded his proposed social group--Salvadorans who resist gang recruitment[2]--lacked " social visibility" and thus did not constitute a particular social group. They also concluded he had failed to show he was persecuted because of his membership in the proposed social group.

After the BIA issued its final order of removal in this case, it issued decisions in two other cases that modified the social visibility requirement to be one of " social distinction." See Matter of M-E-V-G-, 26 I. & N. Dec. 227, 227

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(BIA 2014); Matter of W-G-R-, 26 I. & N. Dec. 208, 208 (BIA 2014). In light of these decisions, Mr. Rodas-Orellana filed a motion to reconsider (mislabeled as a motion to reopen),[3] which the BIA denied.

In his petition for review (" PFR" ), Mr. Rodas-Orellana contests both the final order of removal and the denial of his motion to reconsider. Exercising our jurisdiction to review the final order of removal and the denial of a motion to reconsider under 8 U.S.C. § 1252(a)(1), (b)(6), (b)(9), we deny his PFR. See Infanzon v. Ashcroft, 386 F.3d 1359, 1361-62 (10th Cir. 2004); see also Sarmadi v. INS, 121 F.3d 1319, 1322 (9th Cir. 1997) (concluding " that other recent changes to the INA did not alter our traditional understanding that the denial ...


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