Jose Sanchez-Lopez v. Merrick Garland

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 1 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE SAMUEL SANCHEZ-LOPEZ, et al. No. 18-72221
Petitioners, Agency Nos. A202-004-113
A202-004-112
v. A208-277-633
A208-277-634
MERRICK B. GARLAND, Attorney
General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 29, 2021**
Pasadena, California
Before: MILLER and LEE, Circuit Judges, and HILLMAN,*** District Judge.
Petitioners Jose Samuel Sanchez-Lopez, Yeimi Diaz-Lopez, and
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
Oral argument was scheduled for this matter on March 5, 2021, but
the panel granted the parties’ motion for referral to mediation on February 25,
2021. The panel unanimously concludes that this case is suitable for disposition
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Timothy S. Hillman, United States District Judge for
the District of Massachusetts, sitting by designation.
their children, S.A. Diaz-Lopez and A.D. Lopez-Diaz, natives and citizens of El
Salvador, petition for review of an order of the Board of Immigration Appeals
(“BIA”) affirming an immigration judge’s (“IJ”) denial of their applications for
asylum, withholding of removal, and protection under the Convention Against
Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252(a)(1). We deny the
petition.
1. Substantial evidence supports the BIA’s denial of asylum based on
the proposed particular social group of “vendors threatened with extortion in El
Salvador.” The record does not compel the conclusion that the definition of the
proposed group is sufficiently particular. In other words, it is not “defined by
characteristics that provide a clear benchmark for determining who falls within
the group, such that the group possesses ‘discrete and . . . definable boundaries’”
which are not “amorphous, overbroad, diffuse, or subjective.” Diaz-Reynoso v.
Barr, 968 F.3d 1070, 1077 (9th Cir. 2020) (citing Matter of M-E-V-G-, 26 I & N
227, 239 (BIA 2014); Nguyen v. Barr, 983 F.3d 1099, 1103 (9th Cir. 2020) (citing
Matter of W-G-R-, 26 I & N Dec. 208, 214 (BIA 2014)). In addition, substantial
evidence supports the BIA’s determination that the group is impermissibly
circular. The BIA has long held that to be cognizable, “a particular social group
must ‘exist independently’” of the harm claimed by an applicant for asylum or
withholding of removal and that “individuals in the group must share a narrowing
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characteristic other than risk of being persecuted,” and Petitioners’ proposed
social group cannot exist independently outside of the unifying fact that they have
been threatened with extortion. Diaz-Reynoso at 1081 (emphasis in original)
(citing Matter of M-E-V-G-, 26 I & N 227, 236 n.11 (BIA 2014). Furthermore,
the BIA’s reference to Matter of A-B-I’s general observation that “[s]ocial groups
defined by their vulnerability to private criminal activity likely lack the
particularity required under M-E-V-G-, given that broad swaths of society may be
susceptible to victimization” does not require remand, despite the Attorney
General’s recent decision in A-B-III vacating A-B-I, because the BIA properly
applied pre-A-B-I precedent to determine whether Sanchez-Lopez’s vendor class
was cognizable. See Matter of A-B-I, 27 I & N 316, 335 (AG 2018), superseded
by Matter of A-B-III, 28 I & N 307 (AG June 21, 2021)).
Finally, even if such a social group were cognizable, substantial evidence
supports the BIA’s finding that there was no nexus between Sanchez-Lopez or
Lopez-Diaz’s harm and their membership in the group. Sanchez-Lopez testified
that the gang tried to recruit him to extort the local taxi drivers in order to further
their criminal enterprise and accumulate money and power, and that the gang later
assaulted him because he refused to cooperate, rather than on account of his
membership in the group of “vendors who have been extorted in El Salvador.”
There is no evidence that Petitioners’ status as vendors was “a reason” for the
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attack, let alone “a central reason.” Barajas-Romero v. Lynch, 846 F.3d 351, 360
(9th Cir. 2017).
2. Petitioners failed to exhaust their alternative asylum and withholding
theory that they have a well-founded fear of persecution based upon his anti-gang
political or imputed political opinion. The Illegal Immigration Reform and
Immigrant Responsibility Act limits federal court review of administrative removal
orders to claims in which “the alien has exhausted all administrative remedies
available to the alien as of right.” 8 U.S.C. § 1252(d)(1); see Barron v. Ashcroft,
358 F.3d 674, 677 (9th Cir. 2004) (“[E]xhaustion of administrative remedies is a
prerequisite to our jurisdiction.”). In order to exhaust a claim and thereby preserve
it for our review, “an alien must first appeal any purported errors by the IJ to the
BIA” by “specify[ing] which issues form the basis of the appeal” rather than
stating a “general challenge.” Arsdi v. Holder, 659 F.3d 925, 928-29 (9th Cir.
2011); Cortez-Acosta v. INS, 234 F.3d 476, 480 (9th Cir. 2000) (per curiam). By
relegating their written argument to one sentence in their particular social group
statement and BIA briefs, neglecting to provide substantial evidence to establish
their purported anti-gang political or imputed anti-gang political opinion, and not
clearly stating how the IJ and BIA erred by not considering their asylum and
withholding eligibility based upon that protected ground, Petitioners failed to
exhaust their political or imputed political opinion claim. We therefore lack
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jurisdiction to consider it here.
3. Substantial evidence supports the BIA’s denial of withholding of
removal. Because Petitioners cannot satisfy the less onerous “well-founded fear”
standard for asylum based upon their proposed social group—which is not
cognizable—or Sanchez-Lopez’s political opinion or imputed political opinion
claim—which is unexhausted—it necessarily follows that they cannot prove a
“clear probability” of persecution to qualify for withholding of removal.
4. Substantial evidence also supports the BIA’s determination that
Petitioners failed to establish eligibility for CAT relief. Substantial evidence
supports the BIA’s finding that the past harms suffered by Sanchez-Lopez and
Yeimi Diaz-Lopez did not rise to the level of torture, as torture is defined under 8
C.F.R. § 1208.18(a). While threats and beatings can constitute torture under
certain extreme circumstances, the evidence pertaining to the gang’s two assaults
against Sanchez-Lopez and the threats against Yeimi Diaz-Lopez does not compel
such a finding on substantial evidence review. See Vitug v. Holder, 723 F.3d 1056,
1066 (9th Cir. 2013). Furthermore, substantial evidence supports the BIA’s
finding that Petitioners failed to establish a clear probability that they would be
tortured if they return to El Salvador.
PETITION DENIED IN PART, DISMISSED IN PART.
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