“Where ... the BIA issues an independent decision without adopting the IJ's conclusions, we review only the BIA decision.” Constanza v. Holder, 647 F.3d 749, 753 (8th Cir.2011) (per curiam). “A denial of asylum is reviewed for abuse of discretion; underlying factual findings are reviewed for substantial support in the record.
Relying on decisions of this court, the Board concluded that none of Fuentes's asserted social groups—“men in El Salvador who fear gang violence because of a former gang member who is also their family member,” a “member of a household of such a person who was killed by a gang,” and “individuals returning to El Salvador after working in the United States who may be perceived to be wealthy”—was recognized as a “particular social group” under the Act. See Matul–Hernandez v. Holder, 685 F.3d 707 (8th Cir.2012); Constanza v. Holder, 647 F.3d 749 (8th Cir.2011). The Board concluded that Fuentes waived his argument that he feared persecution based on political opinion because he failed to assert it before the immigration judge.
Instead, the groups "could include fathers, mothers, siblings, uncles, aunts, nieces, nephews, grandparents, cousins, and others." Id. at 585; cf. Constanza v. Holder, 647 F.3d 749, 753-54 (8th Cir. 2011) (agreeing with the BIA that petitioner's membership in "a family that experienced gang violence" lacked the "particularity required to constitute a social group").
Insofar as Shazi's arguments relate to his claim for statutory withholding of removal, "[o]ur jurisdiction is limited to constitutional claims and questions of law" because Shazi "is removable as a ‘criminal alien.’ " Constanza v. Holder, 647 F.3d 749, 753 (8th Cir. 2011) (per curiam); 8 U.S.C. § 1252(a)(2)(C)-(D). Whether the BIA applied the correct legal framework in its particularly serious crime determination is a question of law and reviewable even under our limited jurisdiction.
Marambo now petitions this Court for review, asserting that the IJ and BIA erred in concluding that his conviction for unlawful possession of a firearm was a particularly serious crime, and in concluding that he was ineligible for CAT relief because the BIA applied an improper legal standard and, under either standard, he had shown entitlement to relief. Where, as here, the petitioner "is removable as a ‘criminal alien,’ our jurisdiction is limited to constitutional claims and questions of law." Constanza v. Holder, 647 F.3d 749, 753 (8th Cir. 2011) (per curiam) (internal quotation marks omitted). "We review questions of law de novo but accord substantial deference to the BIA’s interpretation of immigration statutes and regulations."
With respect to Ngugi's argument that witnesses to the criminal activities of the Mungiki constitute a particular social group, Ngugi presented no evidence to support the conclusion that merely having seen or experienced crime would satisfy the particularity or social-distinction prongs. Cf. Constanza v. Holder , 647 F.3d 749, 754 (8th Cir. 2011) (rejecting social groups that “are too diffuse to be recognized as a particular social group”). Furthermore, Ngugi presented no evidence that he ever served as a witness against the Mungiki in any public proceedings or, even if he had, that Kenyan society “recognizes the unique vulnerability of people who testify against gang members in criminal proceedings.”
See Escudero–Arciniega v. Holder, 702 F.3d 781, 785 (5th Cir.2012) (“Escudero asserts only factual issues on appeal.... Because we do not have jurisdiction to review factual determinations made pursuant to removal orders based upon an aggravated felony, we dismiss Escudero's petition for review of the BIA's denial of ... protection under the CAT.”); Pieschacon–Villegas v. Att'y Gen., 671 F.3d 303, 309–10 (3d Cir.2011) (“This Court would lack jurisdiction to consider” petitioner's “disagreement with the BIA's determination that he failed to sufficiently demonstrate that public officials in Colombia would likely acquiesce in his torture.... This Court does, however, have jurisdiction over constitutional claims or questions of law [including] ... whether the Board adjudicated [petitioner's] application for deferral of removal under an incorrect legal standard.” (internal quotation marks and citations omitted)); Constanza v. Holder, 647 F.3d 749, 754 (8th Cir.2011) (same); Saintha v. Mukasey, 516 F.3d 243, 249–51 (4th Cir.2008) (finding that because alien was removable by reason of an aggravated felony conviction, § 1252(a)(2)(C) prohibited evaluation of the factual merits of his CAT claim and alien could not “repackage[ ] his ... argument ... in an attempt to create a reviewable legal question where there is none”); Jean–Pierre v. U.S. Att'y Gen., 500 F.3d 1315, 1320 (11th Cir.2007) (same); Tran v. Gonzales, 447 F.3d 937, 943 (6th Cir.2006) ( “Pursuant to § 1252(a)(2)(C) and (D), our review of Tran's CAT claim is limited to questions of law or constitutional issues.”). But see Issaq v. Holder, 617 F.3d 962, 970 (7th Cir.2010) (holding “a decision under the CAT to deny even deferral of removal [does not] fall[ ] within the jurisdiction-stripping provisions of either § 1252(a)(2)(B) or § 1252(a)(2)(C) ”); Lemus–Galvan v. Mukasey, 518 F.3d 1081, 1083–84 (9th Cir.2008) (same).
“A group of persons defined as those who suffer violence because they refused to join criminal gangs lacks the visibility and particularity required to constitute a social group for purposes of 8 U.S.C. § 1101(a)(42)(A).” Ortiz–Puentes v. Holder, 662 F.3d 481, 483 (8th Cir.2011) (quotation omitted); see also Constanza v. Holder, 647 F.3d 749, 754 (8th Cir.2011) (“[P]ersons resistant to gang violence are too diffuse to be recognized as a particular social group.” (Quotation omitted)).
“A group of persons defined as those who suffer violence because they refused to join criminal gangs lacks the visibility and particularity required to constitute a social group for purposes of 8 U.S.C. § 1101(a)(42)(A).” Ortiz–Puentes v. Holder, 662 F.3d 481, 483 (8th Cir.2011) (quotation omitted); see also Constanza v. Holder, 647 F.3d 749, 754 (8th Cir.2011) (“[P]ersons resistant to gang violence are too diffuse to be recognized as a particular social group.” (Quotation omitted)).
This provision, sometimes referred to as the “criminal alien bar,” precludes this court's review of the BIA's decision on Job's applications for asylum, withholding of removal, and CAT protection, save for questions of law or constitutional claims. See8 U.S.C. § 1252(a)(2)(C)-(D); Constanza v. Holder, 647 F.3d 749, 753 (8th Cir.2011). This court has held, however, that despite the criminal alien bar, it “has jurisdiction to determine any preliminary jurisdictional issues,” and this jurisdiction includes the ability to “consider whether [a] petitioner is removable because of [a] conviction.”