NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 16 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EVER ARIEL LOPEZ-VELASQUEZ, No. 16-70992
Petitioner, Agency No. A200-681-508
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted July 12, 2018**
Portland, Oregon
Before: WARDLAW and OWENS, Circuit Judges, and LEFKOW,*** District
Judge.
Ever Ariel Lopez-Velazquez (“Mr. Lopez”), a native and citizen of
Guatemala, petitions for review of the Board of Immigration Appeals’ (“BIA”)
*
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 Joan Lefkow, United States District Judge for the
Northern District of Illinois, sitting by designation.
decision affirming the Immigration Judge’s (“IJ”) denial of his application for
asylum and withholding of removal. We review the BIA’s findings of fact for
substantial evidence. Silaya v. Mukasey, 524 F.3d 1066, 1070 (9th Cir. 2008). As
the parties are familiar with the facts, we do not recount them here. We deny the
petition for review.
Mr. Lopez seeks asylum and withholding of removal on the grounds that he
has a well-founded fear of future persecution in Guatemala by drug cartels and
gangs on account of his membership in two social groups: (1) “young men
arriving from the United States who are perceived as having money by criminal
organizations”; and (2) “young men seen as targets for recruitment by local gangs
and cartels.”1
Substantial evidence supports the agency’s factual finding that Mr. Lopez’s
two proposed social groups are not sufficiently particularized or socially distinct to
qualify as a “particular social group” for purposes of 8 C.F.R
1
Mr. Lopez also claims membership in two additional social groups:
“young men who are kidnapped and confined by the cartels and forced to watch
torture, beheadings and maltreatment of other people”; and “young men who have
been kidnapped by the cartels and now oppose gangs and cartels in Guatemala.”
But because Mr. Lopez did not present those proposed social groups to the IJ or
BIA, we lack jurisdiction to consider them. See Barron v. Ashcroft, 358 F.3d 674,
677–78 (9th Cir. 2004). Mr. Lopez’s request for humanitarian asylum, is also
unexhausted and therefore unreviewable. Id.
Additionally, while Mr. Lopez petitioned for review of the BIA’s denial of
voluntary departure, his brief on appeal does not argue that issue, so it is forfeited.
Martinez-Serrano v. INS, 94 F.3d 1256, 1259–60 (9th Cir. 1996).
2
§ 1208.13(b)(2)(i)(A). See Reyes v. Lynch, 842 F.3d 1125, 1131, 1135 (9th Cir.
2016). “[T]he focus of the particularity requirement is whether the group is
discrete or is, instead, amorphous.” Id. at 1131 (citation omitted). And to
demonstrate the necessary “social distinction,” the applicant must put forth
evidence showing that “society in general perceives, considers, or recognizes
persons sharing the particular characteristic to be a group.” Id. (citation omitted)
(emphasis omitted). “Although the society in question need not be able to easily
identify who is a member of the group, it must be commonly recognized that the
shared characteristic is one that defines the group.” Id. at 1131–32 (citation
omitted).
1. As to the first proposed social group—“young men arriving from the
United States who are perceived as having money by criminal organizations”2—the
BIA properly concluded that such a group was foreclosed by our decision in
Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151 (9th Cir. 2010) (per curiam)
(rejecting the proposed social group of “returning Mexicans from the United
States”). Like the proposed social group rejected in that case, Mr. Lopez’s first
proposed social group fails because its boundaries are subjective and amorphous.
2
On appeal to the BIA and to this court, Mr. Lopez alternatively
characterizes this first proposed social group as “young men arriving from the
United States who have assimilated to American society through lengthy physical
presence and are perceived as having money by criminal organizations.”
3
See Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1229 (9th Cir. 2016) (rejecting
proposed social group of “imputed wealthy Americans” because it could not “be
described with passable distinction that the group would be recognized as a
discrete class of persons”). Mr. Lopez has not identified any evidence in the
record suggesting that Guatemalan society recognizes “young men arriving from
the United States who are perceived as having money by criminal organizations”
as a distinct group. See Reyes, 842 F.3d at 1137–38. Accordingly, Mr. Lopez’s
first proposed social group is not cognizable under 8 C.F.R § 1208.13(b)(2)(i)(A).
2. As to Mr. Lopez’s second proposed social group—“young men seen as
targets for recruitment by local gangs and cartels”—the BIA properly concluded
that this group was foreclosed by our decision in Ramos-Lopez v. Holder, 563 F.3d
855, 860–62 (9th Cir. 2009) (rejecting the proposed social group of “young
Honduran men who have been recruited by the MS-13, but who refuse to join” as
insufficiently particular because there was “no unifying relationship or
characteristic to narrow this diverse and disconnected group” (citation omitted)),
abrogated on other grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081, 1093
(9th Cir. 2013) (en banc); see also Barrios v. Holder, 581 F.3d 849, 855 & n.4 (9th
Cir. 2009) (rejecting the proposed social group of “young men in Guatemala who
resist gang recruitment” as “indistinguishable” from the proposed group rejected in
Ramos-Lopez).
4
Moreover, like the petitioner in Ramos-Lopez, Mr. Lopez has not shown the
requisite nexus—i.e., that membership in his proposed group is causally connected
to an increased risk of danger as compared to the general population in a country
plagued by “general criminality and civil unrest.” 563 F.3d at 862 (citation
omitted); see also Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“An
alien’s desire to be free from . . . random violence by gang members bears no
nexus to a protected ground.”); Santos-Lemus v. Mukasey, 542 F.3d 738, 746 (9th
Cir. 2008) (holding that young men in El Salvador resisting gang violence are not a
particular social group because they “may be victims of civil unrest, but [they] do
not form a cohesive or particular social group”), abrogated on other grounds by
Henriquez-Rivas, 707 F.3d at 1093. Accordingly, Mr. Lopez has not met his
burden of establishing eligibility for asylum under 8 C.F.R. § 1208.13(b)(2)(i)(A).
Because the standard for withholding of removal is more demanding than
the standard for asylum, and because a cognizable social group is also needed to
secure withholding of removal, see Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th
Cir. 2003), Mr. Lopez has not established his eligibility for withholding of
removal, either.
3. Nor has Mr. Lopez demonstrated that he is more likely than not to suffer
torture at the hands or by acquiescence of the Guatemalan government. We
therefore conclude that the BIA’s denial of his Convention Against Torture claim
5
is supported by substantial evidence.
PETITION FOR REVIEW DENIED.
6
Ever Lopez-Velasquez v. Jefferson Sessions
Combined Opinion