Sandor Tobar-Ramirez v. Merrick Garland ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 26 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SANDOR MAURICIO TOBAR- No. 18-73158
RAMIREZ,
Agency No. A202-081-073
Petitioner,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted March 1, 2021**1F P
Pasadena, California
Before: SILER,*** HURWITZ, and COLLINS, Circuit Judges.
*
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.
Sandor Tobar-Ramirez, a native and citizen of El Salvador, petitions for
review of two decisions by the Board of Immigration Appeals (“BIA”) dismissing
his appeals from the decisions of an Immigration Judge (“IJ”) denying his
applications for asylum, withholding of removal, and protection under the
Convention Against Torture (“CAT”). Reviewing the BIA’s “legal conclusions de
novo and its factual findings for substantial evidence,” Bringas-Rodriguez v.
Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc) (citations omitted), we deny
the petition in part and grant it in part.
1. Substantial evidence supports the BIA’s determination that Tobar failed
to establish a nexus between any past or feared future persecution and an imputed
political opinion. Tobar testified that he was neither politically active nor a member
of any political party, and proffered no evidence that gang members or police
officers targeted him for political reasons. The BIA was not required to infer
political motive by his alleged persecutors. See Singh v. Holder, 764 F.3d 1153,
1160-61 (9th Cir. 2014).
2. Before the agency, Tobar also argued that he was persecuted on account
of his membership in two particular social groups (“PSGs”): (1) “individuals who
are persecuted by gang members who threaten them with death and force them to
relocate from their domicile”; and (2) “abandoned children who have been targets
of gangs, and government cannot protect them.” The BIA found neither PSG
2
cognizable because both were “based solely and circularly on the shared experience
of persecution.” The BIA’s rejection of the first PSG is consistent with our
precedent, as that group was “defined exclusively by the fact that its members have
been subjected to harm.” Diaz-Reynoso v. Barr, 968 F.3d 1070, 1086 (9th Cir. 2020)
(cleaned up). In his opening brief, Tobar emphasizes that his first PSG concerns
individuals with domiciles in territory controlled by a particular gang. But, because
Tobar did not advance this definition of the PSG before the BIA, we may not
consider it. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). And, because
Tobar does not otherwise contest that, as defined below, his first PSG is
impermissibly circular, he has forfeited any challenge to that determination. See
Singh v. Ashcroft, 361 F.3d 1152, 1157 n.3 (9th Cir. 2004).
The BIA’s rejection of Tobar’s second PSG, however, runs afoul of Diaz-
Reynoso v. Barr. In Diaz-Reynoso, we clarified that “the conclusion that a proposed
social group is impermissibly circular may not be reached summarily merely
because the proposed group mentions harm.” 968 F.3d at 1086. We therefore grant
the petition for review with respect to the agency’s rejection of the “abandoned
children” PSG and remand to the agency to determine whether that PSG is
cognizable without reference to persecution, and if so, whether any past persecution
or feared future persecution has the required nexus to that PSG. See id. at 1088.
3. Substantial evidence supports the BIA’s conclusion that Tobar failed to
3
establish past torture. See 8 C.F.R. § 1208.16(c)(3)(i). Tobar testified that one gang
member threatened to kill him, cited encounters with gang members who threw
rocks at him, and said that a boy whom he suspected had been sent by gang members
hit him at school. Tobar also pointed to eight occasions over a six-year period during
which police officers stopped him, squeezed his fingers, beat him with closed fists,
and prodded him with weapons. On one occasion, officers hit Tobar with a plant
branch. The record did not compel the finding that this was sufficiently severe to
constitute torture. See 8 C.F.R. § 1208.18(a)(2); see also Kumar v. Gonzales, 444
F.3d 1043, 1055 (9th Cir. 2006).
Nor was the BIA compelled to find on this record that Tobar would more
likely than not face torture upon his return to El Salvador “by, or at the instigation
of, or with the consent or acquiescence of, a public official acting in an official
capacity or other person acting in an official capacity.” 8 C.F.R. §§ 1208.17(a),
1208.18(a)(1). Country condition evidence established that Salvadoran law
prohibits torture and other cruel and degrading practices and demonstrated the
government’s active measures to address violations. Tobar himself testified that if
he reported his gang-member attackers, they could “have problems with the police
or end up in jail.” Thus, the record does not compel the conclusion that the
government acted in concert with gangs in targeting Tobar or was turning a blind
eye to their activity. See Del Cid Marroquin v. Lynch, 823 F.3d 933, 937 (9th Cir.
4
2016). As to Tobar’s concerns regarding corrupt police officers, the BIA properly
concluded that there was no evidence that corrupt actors have a particularized
interest in Tobar. That fact, combined with the Salvadoran government’s efforts to
address corruption, supports the BIA’s conclusion that Tobar is not more likely than
not to face torture from a corrupt official.
PETITION FOR REVIEW DENIED in part and GRANTED in part.
5