Nehemias Alexzander Medrano ZAVALA, Petitioner, v. Eric H. HOLDER, Jr., U.S. Attorney General, Respondent, 353 F. App'x 631

SUMMARY ORDER Petitioner Nehemias Alexzander Medra-no Zavala (“petitioner” or “Zavala”), a native and citizen of El Salvador, seeks review of a June 19, 2008 order of the BIA affirming the June 18, 2007 decision of an Immigration Judge (“IJ”) denying his applications for asylum, withholding of removal, and relief under the Convention Against Torture (“CAT”). See In re Nehemias Alexzander Medrano Zavala, No. [ AXX XXX XXX ] (BIA June 19, 2008), aff'g No. [ AXX XXX XXX ] (Immig. Ct. N.Y. City June 18, 2007).

On petition for review, petitioner argues that the BIA erred in concluding that Zavala had not established a well-founded fear of persecution on account of membership in a particular social group or an imputed political opinion. We assume the parties’ familiarity with the underlying facts and procedural history of the case. Where, as here, the BIA does not expressly “adopt” the IJ’s decision, but its brief opinion closely tracks the IJ’s reasoning, we consider both the IJ’s and the BIA’s opinions for the sake of completeness. See Wangchuck v.

DHS, 448 F.3d 524, 528 (2d Cir.2006). “We review the BIA’s factual findings under the substantial evidence standard,” Ali v. Mukasey, 525 F.3d 171, 173 (2d Cir.2008), and we may not overturn those findings “unless any reasonable adjudicator would be compelled to [find] to the contrary,” 8 U.S.C. § 1252(b)(4)(B). We review de novo questions of law and the application of law to undisputed fact. See, e.g., Bah v. Mukasey, 529 F.3d 99, 110 (2d Cir.2008).

For applications governed by the amendments to the Immigration and Nationality Act made by the REAL ID Act of 2005, “the applicant must establish that race, religion, nationality, membership in a particular social group, or political opinion was or will be at least one central reason for persecuting the applicant.” 8 U.S.C. § 1158(b)(l)(B)(i).

In order to demonstrate persecution on account of a protected ground, the “applicant must [] show, through direct or circumstantial evidence, that the persecutor’s motive to persecute arises from the applicant’s political belief [or another protected ground].” Yueqing Zhang v. Gonzales, 426 F.3d 540, 545 (2d Cir.2005). Here, Zavala argues that he was persecuted on account of his membership in a particular social group — namely, “all persons who the Maras have targeted for revenge or recruitment as a form of repayment for that person’s family’s failure to support the guerrillas during the civil war.” J.A. 18.

Petitioner argues that his social group satisfies the particularity and social visibility requirements, see Matter of A-M-E & J-G-U- 241. & N. Dec. 69, 74-76 (BIA 2007), because it is based on his membership in his family. Zavala alternatively argues that even if he does not demonstrate membership in a particular social group, he is still eligible for asylum based on an imputed political opinion. First, the social group proposed by petitioner is not meaningfully different from those previously rejected by the BIA.

Recently, the BIA held that neither Salvadoran youth who have been subjected to recruitment efforts by the Mara Salvatru-cha (“MS-13”) gang and who have rejected or resisted those efforts nor the family members of such Salvadoran youth constitute a “particular social group.” Matter of S-E-G-, 24 I. & N. Dec. 579, 582-88 (BIA 2008). Although a family can constitute a cognizable social group, see Matter of Acosta, 19 I. & N. Dec. 211 (BIA 1985), nothing in the record would suggest that the BIA erred in concluding that petitioner was not targeted for recruitment because he was a member of a particular social group.

To the contrary, petitioner stated that he believed MS-13 wanted to recruit him because a gang leader stated that Zavala was “good to be with [them],” J.A. 181, not because his family opposed the guerillas during the civil war. Put differently, nothing in the record suggests that the BIA erred in concluding that the applicants had not shown that gang members had any motives other than increasing the size and influence of their gang. The BIA’s decision in Matter of S-E-G-is also instructive as to Zavala’s alternative claim that he has a well-founded fear of persecution based on an imputed political opinion.

Specifically, petitioner argues that his family’s political opinion in opposing the guerillas during the civil war is “imputed” to him. Pet. Br. 25. The BIA in Matter of S-E-G- relied on its factual determination that the applicants had not shown that the MS-13 had motives other than expanding their gang to conclude that the applicant failed to establish persecution based on an imputed political opinion. 24 I. & N. Dec. at 589. The same is true here primarily based on petitioner’s statement discussed above.

Even assuming that petitioner had established a cognizable social group or an imputed political opinion, petitioner’s brothers and aunt have suffered no harm in the several years since petitioner left El Salvador. As the IJ noted, this undermines petitioner’s claim that his fear of future persecution was objectively reasonable. Cf. Melgar de Torres v. Reno, 191 F.3d 307, 313 (2d Cir.1999) (finding that where asylum applicant’s mother and daughters continued to live in petitioner’s native country, claim of well-founded fear of future persecution was diminished).

Accordingly, the BIA did not err in denying petitioner’s applications for asylum and withholding of removal. Likewise, the BIA did not err in denying petitioner’s CAT claim, because petitioner failed to demonstrate that any suffering would be “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1). CONCLUSION For the foregoing reasons, the petition for review is DENIED. As we have completed our review, the stay of removal that the Court previously granted in this petition is VACATED. .

Because we agree with the BIA’s decision in Matter of S-E-G-, we need not determine whether we accord deference to the BIA’s application of the statute to a particular fact pattern under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Whether we reach this outcome because we deferred to the BIA’s analysis or applied our own is irrelevant.