Henry Dominguez-Alvayora v. Merrick Garland ( 2023 )

FILED
NOT FOR PUBLICATION
MAR 22 2023
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
HENRY ADALBERTO DOMINGUEZ- No. 20-71881
ALVAYERO,
Agency No. A208-567-658
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 10, 2023**
Pasadena, California
Before: KLEINFELD, WATFORD, and COLLINS, Circuit Judges.
Henry Adalberto Dominguez-Alvayero petitions this Court for a review of
the Board of Immigration Appeals’s decision affirming the immigration judge’s
*
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).
denials of his applications for asylum, withholding of removal, and protection
under the Convention Against Torture (CAT).
We have jurisdiction pursuant to 8 U.S.C. § 1252(a)(1). Because the Board
adopted the immigration judge’s decision in its entirety and added its own
comments, we review the decisions of both the Board and the immigration judge.
Gonzalez-Castillo v. Garland, 47 F.4th 971, 976 (9th Cir. 2022). We review legal
conclusions de novo and factual findings for substantial evidence. Plancarte
Sauceda v. Garland, 23 F.4th 824, 831 (9th Cir. 2022). Our review is limited to
the grounds actually relied on by the agency. Garcia v. Wilkinson, 988 F.3d 1136,
1142 (9th Cir. 2021).
For Dominguez-Alvayero’s asylum and withholding-of-removal claims, the
immigration judge correctly decided that his proposed social group of “Salvadorian
young men” or “young Salvadorian men from El Salvador” falls short of the
requirement of a common immutable characteristic and hence cannot constitute a
protected ground for the two requested forms of relief. See Villegas Sanchez v.
Garland, 990 F.3d 1173, 1180–81 (9th Cir. 2021). Moreover, the agency
permissibly concluded that Dominguez-Alvayero’s reliance on a proposed social
group of persons opposed to gang recruitment did not establish a nexus to a
protected ground. See Santos-Lemus v. Mukasey, 542 F.3d 738, 745–47 (9th Cir.
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2008), abrogated on other grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081,
1093 (9th Cir. 2013) (en banc).
For his claim under the CAT, nothing in the record compels us to reverse the
immigration judge’s finding that Dominguez-Alvayero failed to establish that it is
more likely than not that he will face 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.” Aguilar-Ramos v. Holder, 594 F.3d 701, 704 (9th Cir. 2010)
(quoting 8 C.F.R. § 1208.18(a)(1)). Dominguez-Alvayero alleges he would be
tortured by members of the MS Gang if removed to El Salvador, and generally
claims that the police in El Salvador are corrupt and associated with the gang. Yet
he conceded at the hearing that Salvadorian police sometimes “do investigate
crimes committed by gang members,” including the MS Gang’s alleged murder of
his cousin. Dominguez-Alvayero claims that, on one occasion, police officers
searched and handcuffed him while also warning that the MS Gang was targeting
him. But the immigration judge reasonably concluded that the fact these officers
warned Dominguez-Alvayero, rather than turn him over to the gang members,
undermines his claim that the police would assist in or acquiesce to his torture.
PETITION DENIED.
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