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Escobar v. Gonzales

July 29, 2005

ELDIN JACOBO ESCOBAR PETITIONER
v.
ALBERTO GONZALES,*FN1 ATTORNEY GENERAL OF THE UNITED STATES RESPONDENT



ON REVIEW FROM OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS DATED JUNE 17, 2004 (BIA No. A78 314 957).

The opinion of the court was delivered by: Weis, Circuit Judge.

PRECEDENTIAL

Argued May 4, 2005

Before: MCKEE, VAN ANTWERPEN and WEIS, Circuit Judges.

OPINION

The issue in this appeal is whether, under the Immigration and Nationality Act, Honduran "street children" constitute a "particular social group" whose members can seek asylum and withholding of removal based on their persecution or a well-founded fear of persecution in their home country. See 8 U.S.C. §§ 1101(a)(42)(A), 1158(a), 1231(B)(3). We conclude that Honduran street children are not a particular social group within the terms of the Act and therefore we will deny the Petition for Review of the Board of Immigration Appeals.

Petitioner, Eldin Jacobo Escobar, is a native of Honduras. Escobar's parents abandoned him at an early age, and he was forced to share a small house with his maternal grandparents and other relatives in the Department of Olancho. The group lived under crude conditions, lacking a bathroom, heat and beds. While he was living with his extended family, Escobar's grandfather and uncles physically abused him.

When he was approximately nine years old, Escobar ran away and began living on the streets of Honduran cities and villages. He earned tips doing various jobs including shining shoes and selling fruit or clothing. He slept in many different places and often went shoeless in tattered clothing.

In addition to enduring the general tribulations of street living, Escobar asserts that members of various Honduran street gangs stole from him, threatened him with violence and physically abused him. He alleges that he observed similar attacks, some of which were fatal, on other street children. Gang members told Escobar to rob and steal for and with them, and repeatedly pressured him to join their gangs.

Escobar contends that the Honduran police failed to offer protection to street children. He testified that, like gang members, the police officers pressured him to steal on their behalf, and threatened him if he refused.

After enduring harsh treatment on the streets of Honduras, Escobar fled to Mexico and lived on the streets there. He eventually contacted his mother who was living in the United States and met her in Tijuana*fn3.

When Escobar's mother brought him into the United States in October 2001, he was thirteen years old. He was not inspected or admitted by an immigration officer at his point of entry. The record of Escobar's activity in this country is sparse, but he eventually lived in Texas with a relative until he was taken into custody by the former INS in March 2003.

After a hearing on Escobar's claims for asylum and withholding of removal, an Immigration Judge issued a decision in January 2004. The IJ concluded Escobar's claims for asylum and withholding of removal were based on membership in a cognizable social group comprised of "abandoned street children in Honduras who are targets of systemic violence generated by government officers and non-governmental groups and from which the Honduran government has provided grossly inadequate protection." However, the IJ denied Escobar's claims for lack of credibility.

The Board of Immigration Appeals held that, even if Escobar testified credibly, "Honduran street children" did not constitute a "particular social group for purposes of asylum and withholding of removal." On appeal to this Court, Escobar challenges the BIA's decision, contending that homeless Honduran street children constitute a "particular social group." We have jurisdiction to review a final order of removal pursuant to 8 U.S.C. § 1252(a)(1). See Abdulai v. Ashcroft, 239 F.3d ...


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