Salazar Vasquez v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 22 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FILANDER SALAZAR No. 22-1214
VASQUEZ; EVANS MATTHEW Agency Nos.
SALAZAR MUNGUIA; MARIA LUZ A209-833-741
MUNGUIA SALAZAR; KEVIN A209-833-742
EDUARDO SALAZAR MUNGUIA,
A209-992-935
A209-992-936
Petitioners,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted December 4, 2023
Pasadena, California
Before: WARDLAW and BUMATAY, Circuit Judges, and BENCIVENGO,
District Judge.**
Filander Salazar Vasquez (“Salazar”), collectively with his wife, Maria Luz
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Cathy Ann Bencivengo, United States District Judge
for the Southern District of California, sitting by designation.
Munguia Salazar (“Munguia”), and their two children, Kevin Eduardo Salazar
Munguia and Evans Matthew Salazar Munguia, all natives and citizens of El
Salvador, petition for review of a decision by the Board of Immigration Appeals
(“BIA”) dismissing the family members’ appeal of an Immigration Judge’s (“IJ”)
denial of their applications for asylum, withholding of removal, and protection
under the Convention Against Torture (“CAT”) in this consolidated case. We have
jurisdiction under 8 U.S.C. § 1252, and we deny in part and grant and remand the
petition in part.
1. The agency did not err in denying Salazar’s application for asylum and
withholding of removal based on his membership in the particular social groups
(“PSGs”) “married Salvadoran males who are public sector employees” and
“married Salvadoran males who are perceived to have access to information and
resources because of their government employment.” Even assuming, without
deciding, that the BIA abused its discretion in finding that Salazar forfeited his
challenge to the IJ’s determination regarding past persecution and applied an
improper legal standard when analyzing immutability, Salazar is ineligible for
asylum or withholding of removal because the record is devoid of evidence that his
employment-based PSGs are socially distinct. See Macedo Templos v. Wilkinson,
987 F.3d 877, 882 (9th Cir. 2021) (citing Matter of M-E-V-G-, 26 I. & N. Dec.
227, 237 (BIA 2014)).
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The reports and testimony Salazar provided do not show that members of his
proposed PSGs are “set apart within [Salvadoran] society in some significant
way.” Matter of M-E-V-G-, 26 I. & N. Dec. at 244. Rather, they show that public
sector employees, like members of Salvadoran society at large, face general
criminal violence when traveling or working in certain neighborhoods due to the
general “insecurity that prevails in those sectors.” While we do not hold that
Salazar’s employment-based PSGs are not cognizable as a matter of law, the
evidence Salazar offers here is insufficient to compel the conclusion that Salazar’s
PSGs are socially distinct in El Salvador. See Conde Quevedo v. Barr, 947 F.3d
1238, 1243 (9th Cir. 2020).
2. The BIA did not err in concluding that Salazar failed to preserve his
claim to relief based on political opinion. The BIA “has the authority to prescribe
procedural rules that govern the proceedings before it, and procedural default rules
are consistent with this authority.” Honcharov v. Barr, 924 F.3d 1293, 1296 (9th
Cir. 2019) (per curiam). Although the BIA characterized the procedural default of
Salazar’s political opinion claim as a “waiver” rather than a “forfeiture,” “[t]he
terms waiver and forfeiture . . . often [are] used interchangeably by jurists and
litigants,” and both require at least a threshold determination of whether the claim
has been abandoned—intentionally or otherwise. Hamer v. Neighborhood Hous.
Servs. of Chicago, 548 U.S. 17, 20 n.1 (2017). The BIA’s inadvertent use of the
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term “waiver,” without more, does not suggest that the BIA applied an incorrect
legal standard when it concluded that Salazar failed to preserve his political
opinion claim.
In Honcharov, we “le[ft] it for another case to decide what standard of
review we should apply to the Board’s decision to invoke [such] a default.” 924
F.3d at 1297. We need not decide here which standard applies because even under
de novo review, Salazar failed to preserve his political opinion claim. In his I-589
Application for relief, Salazar checked the box labeled “Political Opinion”
indicating that he sought protection on that ground. And Salazar testified at the
removal hearing that his job occasionally afforded him “access to the city mayor”
in areas that his employer, the National Sewer and Aqueduct Administration,
serviced. Cf. Navas v. INS, 217 F.3d 646, 659 n.19 (9th Cir. 2000) (recognizing
that persecution “of those who work for or with political figures [can] be on
account of the political opinion of their employer even if the nature of their work
for or with that person is not in itself political”). However, Salazar and Munguia
testified that Salazar fears persecution based only on his perceived access to
information; they did not testify or argue through counsel that any persecution was
or would be on account of an actual or imputed political opinion held by Salazar or
any public official with whom he worked. Absent any arguments or evidence
supporting Salazar’s political opinion claim other than the I-589 checkbox, the
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BIA correctly determined that Salazar forfeited the claim.
3. In his opening brief, Salazar does not contest and therefore forfeits any
challenge to the BIA’s determination that he did not raise the IJ’s denial of CAT
protection on appeal. See Lopez-Vasquez v. Holder, 706 F.3d 1072, 1079–80 (9th
Cir. 2013) (issues not specifically raised and argued in a party’s opening brief are
forfeited).
4. The agency erred by failing to address Munguia and the two children’s
claims to asylum, withholding of removal, and protection under CAT based on
their membership in the PSG “immediate family members of Filander Salazar
Vasquez.” Ample testimony and arguments in the record before the IJ made it
clear that the family members sought relief based on their membership in the
family-based PSG. All three family members wrote in their I-589 Applications
that they fear “be[ing] harmed by the people who were looking for [Salazar
Vasquez].” At the removal hearing, Munguia testified about the threat her 15-
year-old son received that specifically mentioned her family, and counsel noted
that the family members were diagnosed with PTSD after “suffer[ing] past
persecution on account of their membership in a particular social group . . . as
immediate family members of Filander Vasquez Salazar [sic].” While the agency
is entitled to apply its own procedural default rules, it cannot invoke those rules to
the effect of “ignor[ing] arguments raised by a petitioner entirely.” Honcharov,
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924 F.3d at 1296 n.2 (internal quotation marks omitted). We therefore grant the
petition in part and remand to the agency to consider the family members’
eligibility for relief in the first instance.
PETITION DENIED IN PART AND GRANTED AND REMANDED
IN PART.1 Each side shall bear its own costs.
1
We deny the petition as to Filander Salazar Vasquez without prejudice to
any reconsideration by the agency or any claims to relief he may raise in the future.
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