Roberto Murcia v. Merrick Garland ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 20 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERTO TRINIDAD MURCIA, No. 15-73735
Petitioner, Agency No. A094-378-779
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted April 15, 2022**
San Francisco, California
Before: SILER,*** TASHIMA, and M. SMITH, Circuit Judges.
Roberto Murcia, a native and citizen of El Salvador, petitions this court to
review the denial of his applications for withholding of removal and for protection
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
under the Convention Against Torture (CAT). Murcia, a former member of the
Norteño gang, alleged a fear of persecution and torture by rival gang members if
removed to El Salvador. He also alleged that he would be in danger because of his
uncle’s involvement with ARENA, a political party with a robust anti-gang agenda,
and because he may move back to the town where he believes his abusive father still
lives. The Immigration Judge (IJ) and Board of Immigration Appeals (BIA) rejected
Murcia’s CAT and withholding-of-removal claims based on political opinion,
imputed political opinion, domestic abuse, and membership in the proposed
particular social group (PSG) of “former Norteño gang members.” For the reasons
that follow, we dismiss in part and deny in part the petition for review.
We review the BIA’s denial of a motion to reopen for abuse of discretion,
reversing the agency “when it acts arbitrarily, irrationally, or contrary to the law, and
when it fails to provide a reasoned explanation for its actions.” Hernandez-Galand
v. Garland, 996 F.3d 1030, 1034 (9th Cir. 2021) (citation omitted). And we review
any factual findings for substantial evidence, leaving them undisturbed “unless any
reasonable adjudicator would be compelled to conclude to the contrary.”
8 U.S.C. § 1252(b)(4)(B).
First, substantial evidence supports the BIA’s determination that Murcia’s
proposed PSG of “former members of the Norteño gangs” lacks social distinction.
A cognizable PSG is “(1) composed of members who share a common immutable
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characteristic, (2) defined with particularity, and (3) socially distinct within the
society in question.” Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014).
Social distinction refers to whether “the people of a given society would perceive a
proposed group as sufficiently separate or distinct.” Pirir-Boc v. Holder, 750 F.3d
1077, 1084 (9th Cir. 2014). Because only country-specific evidence can shed light
on such a question of societal perception, the agency must necessarily conduct its
inquiry on a “case-by-case, country-by-country, and, in some cases, region-by-
region” basis. Diaz-Torres v. Barr, 963 F.3d 976, 980 (9th Cir. 2020).
Murcia argues that the BIA failed to perform the required “evidence-based
inquiry” in its social-distinction determination and failed to consider evidence that
Murcia had publicly denounced his former gang. However, the agency indicated
that it had reviewed the entire record before concluding that Murcia’s PSG lacked
social distinction. And when the BIA states that it reviewed the record, we presume
that it did just that. See Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir. 2006).
Murcia’s broad statement that the BIA failed to perform a more intensive inquiry
does not overcome this presumption.
Nor does the record evidence, in any event, compel reversal. Murcia offered
as evidence the 2013 U.S. State Department Human Rights Report on El Salvador
and two articles discussing the breakdown of truces among gangs in El Salvador.
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These sources hardly discuss former gang members, let alone shed any light on the
societal perception of former gang members in El Salvador.
To the extent that Murcia, for the first time, attempts to redefine his PSG to
include “concrete steps taken in open opposition to gangs” we lack jurisdiction to
consider the argument. 8 U.S.C. § 1252(d)(1) (requiring exhaustion of
administrative remedies).
Second, substantial evidence supports the BIA’s conclusion that Murcia failed
to establish a clear probability of torture. For protection under CAT, Murcia must
show that it is “more likely than not that . . . [he] would be tortured if removed” to
El Salvador. 8 C.F.R. § 1208.16(c)(2). There is no subjective component to an
applicant’s fear of torture, which is defined as “an extreme form of cruel and
inhuman treatment.” id. § 1208.18(a)(2). Rather, a CAT claim must be based
entirely on an objective fear of torture. Tamang v. Holder, 598 F.3d 1083, 1095 (9th
Cir. 2010). Thus, an applicant cannot satisfy his burden by asserting only a
speculative fear of torture. See Garcia v. Wilkinson, 988 F.3d 1136, 1148 (9th Cir.
2021) (citing Matter of V-X-, 26 I. & N. Dec. 147, 154 (BIA 2013)).
Murcia asserts that his former gang ties, his opposition to gangs, and his
uncle’s affiliation with ARENA put him at a substantial risk of torture by gang
members with the acquiescence of the Salvadoran government. But Murcia’s fears
are speculative. When asked how rival gang members might recognize Murcia as a
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former Norteño gang member, Murcia explained that his father may have told others
in the community about his involvement. When asked how Murcia knew his uncle
was still involved with the ARENA political party, Murcia answered that his uncle
was assaulted but that he did not know whether the incident was related to his uncle’s
political association or was a robbery. These assertions are insufficient to compel
the conclusion that Murcia will likely be tortured if removed to El Salvador.
Finally, Murcia has waived his claims that he fears further domestic abuse
from his father, that he fears persecution because of a political opinion, and that he
fears persecution because of an imputed political opinion based on his uncle’s
involvement with ARENA. He either failed to sufficiently argue or to raise at all
these issues in his brief. See United States v. Graf, 610 F.3d 11148, 1166 (9th Cir.
2010) (“Arguments made in passing and not supported by citations to the record or
to case authority are generally deemed waived.”). Thus, we affirm the BIA on those
claims.
The petition is accordingly DISMISSED in part for lack of jurisdiction and
otherwise DENIED.
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