Justin Santos-Ponce v. Robert Wilkinson ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUSTIN STEEVEN SANTOS-PONCE, No. 18-72433
Petitioner,
Agency No.
v. A206-794-496
ROBERT M. WILKINSON, Acting
Attorney General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 1, 2021 *
Pasadena, California
Filed February 10, 2021
Before: Ronald M. Gould, John B. Owens, and
Lawrence VanDyke, Circuit Judges.
Opinion by Judge VanDyke
*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2 SANTOS-PONCE V. WILKINSON
SUMMARY **
Immigration
Denying Justin Steeven Santos-Ponce’s petition for
review of the Board of Immigration Appeals’ denial of
asylum and related relief, the panel held that Ponce’s
proposed social group comprised of “minor Christian males
who oppose gang membership” is not cognizable, and that
he failed to establish the requisite nexus between any harm
and his membership in the Santos-Ponce family, or that he
would more likely than not be tortured by the Honduran
government or with government acquiescence.
Addressing Ponce’s first proposed social group
comprised of “minor Christian males who oppose gang
membership,” the panel concluded that the group is not
cognizable because it lacks particularity and social
distinction. Noting that this court previously rejected a
similar social group in Ramos-Lopez v. Holder, 563 F.3d 855(9th Cir. 2009) (concluding that young Honduran men who
resisted gang recruitment lacked particularity and social
distinction), abrogated in part on other grounds by
Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013)
(en banc), the panel explained that the record does not show
how adding the term “Christian” to minors who oppose gang
membership makes the group sufficiently particular or
socially distinct. The panel wrote that the record lacked
persuasive evidence that there is a viable risk of persecution
in Honduras based on one’s Christian religious beliefs or
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SANTOS-PONCE V. WILKINSON 3
practices, and the evidence does not compel the conclusion
that Honduran society would distinguish between a young
Christian male who resists gang recruitment and any other
young man who seeks to avoid gang membership.
Regarding Ponce’s second proposed social group
comprised of members of “the Santos-Ponce family,” the
panel concluded that the record did not contain evidence of
a nexus between the alleged persecution and his membership
in the Santos-Ponce family. The panel explained that while
Ponce’s uncle was killed by gang members, the record did
not contain any evidence that his uncle’s family membership
was one central reason or even a reason that the gang killed
him. In addition, the panel concluded that Ponce’s claim of
future persecution was undermined by the fact that he has
other family members living unharmed in Honduras.
The panel also held that substantial evidence supported
the Board’s conclusion that Ponce was not eligible for CAT
protection. The panel wrote that the agency correctly
observed that Ponce failed to claim any past harm, let alone
torture, and that his uncle’s killing, for unspecified reasons,
combined with the existence of generalized violence in
Honduras, did not compel the conclusion that, upon his
return to Honduras, Ponce would more likely than not
experience torture 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.
4 SANTOS-PONCE V. WILKINSON
COUNSEL
Carolina Celina Gomez and Mher Cholakhyan, Law Office
of Carolina C. Gomez, Los Angeles, California, for
Petitioner.
Joseph H. Hunt, Assistant Attorney General; Carl McIntyre,
Assistant Director; Nancy Ellen Friedman, Senior Litigation
Counsel; Office of Immigration Litigation, Civil Division,
United States Department of Justice, Washington, D.C.; for
Respondent.
OPINION
VANDYKE, Circuit Judge:
I.
Justin Steeven Santos-Ponce (Ponce) petitions for
review of the Board of Immigration Appeals’ (BIA) order
dismissing his appeal of an Immigration Judge’s (IJ)
decision denying his applications for asylum and
withholding of removal and request for protection under the
Convention Against Torture (CAT). For the reasons
discussed below, we deny the petition for review.
II. Factual and Procedural Background
Ponce is a 16-year-old native of Honduras who was
placed in removal proceedings soon after he arrived in the
United States in 2014. Ponce initially lived with his mother
in Honduras until he was three years old. When his mother
moved to the United States, three-year-old Ponce went to
live with his grandmother, uncle, and other extended family
members in Honduras.
SANTOS-PONCE V. WILKINSON 5
When Ponce was five years old, his uncle was killed by
gang members. The record contains conflicting evidence
about why his uncle was killed. One part of the record says
that his uncle was killed for unknown reasons, but elsewhere
it says that Ponce’s uncle was killed when his grandmother
did not meet the gang’s demands. Ponce himself never
directly experienced any physical harm or threats of harm
while he lived in Honduras. And even though he is fearful
of returning to Honduras because of the crime rate and gang
activities generally, his grandmother and other family
members continue to live in the country unharmed.
A. IJ Decision
The IJ found Ponce’s testimony credible, and while
Ponce did not suffer past persecution, the IJ determined that
he had a subjective fear of harm. But the IJ also concluded
that Ponce failed to show that he would suffer future harm
based on a protected ground. Specifically, the IJ rejected
Ponce’s argument that he had a well-founded fear of future
persecution because of or on account of being a Christian
and being a member in two proffered particular social groups
(PSGs): (1) “Santos-Ponce family who have been victims of
gang violence”; and (2) “minor Christian males who oppose
gang membership.”
The IJ acknowledged that Ponce had been raised a
Christian, but determined that “the evidence does not
support a finding that [Ponce] faces either a particularized
risk of persecution as a Christian or that there is a pattern or
practice of persecution of Christians.” While the record
contains evidence of “the problem of gang related
recruitment of children and the general gang warfare and
violence” in Honduras, the IJ reasoned that the record lacks
“persuasive evidence that [there is] a viable risk of
6 SANTOS-PONCE V. WILKINSON
persecution based on one’s Christian religious beliefs or
practices.”
With respect to Ponce’s first proposed PSG—“Santos-
Ponce family who have been victims of gang violence”—the
IJ concluded that Ponce inappropriately defined the group by
the harm suffered. But even if defining the group by the
harm suffered was not impermissibly circular, the IJ
explained that Ponce “would not qualify as a member of the
group” because he has not been a victim of gang violence.
Redefining Ponce’s proposed PSG by family relationship
rather than harm suffered, the IJ nonetheless determined that
Ponce failed to “show[] that he faces a well-founded fear of
harm as a member of his family.” At the time of the IJ
hearing, Ponce had family members that continued to live
unharmed in Honduras. The IJ thus concluded that the
record does not “show that [Ponce] faces a particularized
risk of harm” as a result of his family membership.
Regarding Ponce’s second proposed PSG—“minor
Christian males who oppose gang membership”—the IJ
determined Ponce did not “show that the group is
sufficiently socially distinct or particular.” Although the
record shows that gangs targeted some children for
recruitment or violence, the IJ determined that “the evidence
does not support a finding that the respondent’s proposed
group is socially distinct” because gang violence and
recruitment are “complex problem[s] . . . driven by a mixture
of motives.” The IJ also observed that the record does not
clearly define what constitutes opposition to gang violence
or explain the significance of the additional label “minor
Christian male[s],” and it fails to show “how the
combination would be recognized as socially distinct.”
Therefore, the IJ concluded that this proposed PSG was not
cognizable.
SANTOS-PONCE V. WILKINSON 7
Ultimately, the IJ decided that because Ponce’s “fears
are more akin to fears of general civil strife created by the
gang problems in Honduras[,]” these “fears . . . fail to meet
the standard for asylum.” And because he failed to meet the
lesser burden of proof required for asylum, the IJ concluded
that Ponce also failed to meet his burden of proof for
withholding of removal. Ponce was not entitled to CAT
relief, according to the IJ, because there was no evidence that
he was tortured in the past or that he would be tortured in the
future “by any government officials, or anyone acting under
the acquiescence of the government.” 1
B. BIA Decision
The BIA affirmed the denial of Ponce’s asylum,
withholding of removal, and CAT claims, and dismissed his
appeal.
The BIA concluded that the IJ did not clearly err when
she determined that Ponce failed to “establish a nexus to a
protected ground . . . , including membership in a [PSG], or
demonstrate that it was or will be at least one central reason
for the claimed persecution.” Similarly, with respect to
Ponce’s request for withholding of removal, the BIA
determined that Ponce “failed to establish that it is more
likely than not that he would be targeted for persecution on
account of a protected ground.”
Similar to his claims before the IJ, Ponce argued before
the BIA that he would be targeted for persecution on account
1
The IJ held her decision in abeyance to give Ponce an opportunity
to apply for an immigrant visa under the Special Immigrant Juvenile
Status (SIJS) application, but Ponce’s counsel informed the IJ on June
12, 2017 that Ponce was “reunited with his biological father and was no
longer eligible for relief based on an SIJS application.”
8 SANTOS-PONCE V. WILKINSON
of and because of his membership in two proffered PSGs:
(1) “minor Christian males who oppose gang membership”;
and (2) as a member of “the Santos-Ponce family.”
The BIA agreed with the IJ that his first proposed PSG—
“minor Christian males who oppose gang membership”—“is
not defined with sufficient particularity and it has not been
shown to be socially distinct within Honduran society so as
to constitute a cognizable [PSG].”
Regarding his second proposed PSG, the BIA
assumed—without deciding—that Ponce’s “family is a
cognizable social group,” but concluded that the record did
not show that Ponce’s “family relationship itself was ‘one
central reason’ or constituted ‘a reason’ the gang would have
targeted [Ponce’s] family and specifically, [his] uncle.”
Importantly, “any inference of a nexus between the gang’s
actions with respect to [Ponce’s] uncle and [Ponce’s]
familial relationship is undermined by the fact that other
family members continue to reside in Honduras without any
known issues with the gang.”
The BIA also determined there was no clear error in the
IJ’s “assessment of the facts which support her conclusion
that [Ponce] has not established his eligibility for protection
under [CAT].” Ponce failed to meet “the burden of
demonstrating that it is more likely than not that he would be
subjected to torture inflicted by or at the instigation of or
with the consent or acquiescence of an official or other
person acting in an official capacity.”
III. Jurisdiction and Standard of Review
We have jurisdiction under 8 U.S.C. § 1252. “Whether
a group constitutes a [PSG] . . . is a question of law we
review de novo.” Perdomo v. Holder, 611 F.3d 662, 665
SANTOS-PONCE V. WILKINSON 9
(9th Cir. 2010) (citation omitted). In contrast, whether an
applicant has shown that his persecutor was or would be
motivated by a protected ground—i.e., whether the “nexus”
requirement has been satisfied—is reviewed under the
substantial evidence standard. See Parussimova v. Mukasey,
555 F.3d 734, 739 (9th Cir. 2009). Under this deferential
standard, factual findings are treated as “conclusive unless
any reasonable adjudicator would be compelled to conclude
to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Singh v.
Lynch, 802 F.3d 972, 974 (9th Cir. 2015). Accordingly, in
order to reverse the BIA’s finding under substantial evidence
review, “we must find that the evidence not only supports
that conclusion, but compels it.” INS v. Elias-Zacarias,
502 U.S. 478, 481 n.1 (1992).
IV. Discussion and Analysis
Regarding his asylum and withholding of removal
claims, Ponce argues before this court, like he did before the
BIA, that he would be targeted for persecution on account of
his membership in two proffered PSGs: (1) “minor Christian
males who oppose gang membership” and (2) members of
the Santos-Ponce family.
The BIA properly concluded that Ponce’s first proposed
PSG—“minor Christian males who oppose gang
membership”—is not sufficiently particular or socially
distinct. We have previously determined that a very similar
PSG fails. See Ramos-Lopez v. Holder, 563 F.3d 855, 861–
62 (9th Cir. 2009) (concluding that young Honduran men
who resisted gang recruitment “failed the particularity
requirement” and “lacked the requisite social visibility”),
abrogated in part on other grounds by Henriquez-Rivas v.
Holder, 707 F.3d 1081, 1093 (9th Cir. 2013) (en banc). The
record does not show how adding the term “Christian” to
minors who oppose gang membership makes the group
10 SANTOS-PONCE V. WILKINSON
sufficiently particular or socially distinct. The record lacks
“persuasive evidence that [there is] a viable risk of
persecution based on one’s Christian religious beliefs or
practices,” and the evidence does not compel the conclusion
that Honduran society would distinguish between a young
Christian male who resists gang recruitment and any other
young man who seeks to avoid gang membership.
Regarding Ponce’s second proposed PSG—members of
“the Santos-Ponce family”—the record does not contain
evidence of a nexus between the alleged persecution and his
membership in the Santos-Ponce family. See Lkhagvasuren
v. Lynch, 849 F.3d 800, 802 (9th Cir. 2016) (“The petitioner
has the burden to prove that a nexus exists between the
persecution and a protected ground.”). While Ponce’s uncle
was killed by gang members, the record does not contain any
evidence that his uncle’s membership in the Santos-Ponce
family was one central reason or even a reason that the gang
killed him. See Barajas-Romero v. Lynch, 846 F.3d 351, 360
(9th Cir. 2017) (observing that where “there was no nexus at
all,” we draw “no distinction between the ‘one central
reason’ phrase in the asylum statute and the ‘a reason’ phrase
in the withholding statute”). In addition, Ponce’s claim of
future persecution is undermined by the fact that he has other
family members living unharmed in Honduras. 2 Because
Ponce failed to establish a nexus between the alleged
persecution and his proposed PSG based on his familial
relation, the record does not compel us to reverse the BIA. 3
2
See Estrada v. INS, 775 F.2d 1018, 1022 (9th Cir. 1985) (“The
absence of harassment of an alien’s family tends to reduce the probability
of persecution.”).
3
Given the lack of nexus, we need not address in this case whether
Ponce’s proposed PSG consisting of members of the Santos-Ponce
SANTOS-PONCE V. WILKINSON 11
As a result, the BIA’s determination that Ponce did not merit
asylum is supported by substantial evidence. 4
Lastly, substantial evidence supports the BIA’s
conclusion that Ponce is not eligible for CAT protection. To
qualify for CAT protection, Ponce bears the burden of
proving “that ‘it is more likely than not that … [he] would
be tortured if removed to the proposed country of removal.’”
Azanor v. Ashcroft, 364 F.3d 1013, 1018 (9th Cir. 2004)
(first alteration in original) (quoting 8 C.F.R.
§ 208.16(c)(2)). The record does not contain evidence
compelling a conclusion different from the BIA’s. The BIA
correctly explained that the IJ did not err by observing that
“[t]here is no claim or evidence that [Ponce] was harmed,
much less tortured in the past by any government officials,
or anyone acting under the acquiescence of the government.”
And the fact that Ponce’s uncle was killed for unspecified
reasons, combined with the existence of generalized
violence in Honduras, does not compel the conclusion that,
upon his return to Honduras, Ponce would more likely than
not experience torture “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) (2021); Delgado-Ortiz v. Holder, 600 F.3d
1148, 1152 (9th Cir. 2010) (per curiam) (“Petitioners’
generalized evidence of violence and crime in Mexico is not
particular to Petitioners and is insufficient to meet [the CAT]
family is cognizable. See Matter of L-E-A-, 27 I. & N. Dec. 581, 581,
584 (2019).
4
Because Ponce “fail[ed] to satisfy the lower standard of proof
required to establish eligibility for asylum,” substantial evidence
supports the BIA’s conclusion that he “fail[ed] to demonstrate eligibility
for withholding of deportation.” Pedro-Mateo v. INS, 224 F.3d 1147,
1150 (9th Cir. 2000).
12 SANTOS-PONCE V. WILKINSON
standard.”). Substantial evidence supports the BIA’s
conclusion that Ponce failed to demonstrate eligibility for
CAT relief.
The petition for review is DENIED.