NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DIANA CAROLINA ORTIZ-CHAVEZ and No. 17-70345
ESTEVEN WILFREDO MEJIA-ORTIZ,
AKA Steven Wilfredo Mejia-Ortiz, Agency Nos. A206-844-778
A206-844-779
Petitioners,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 13, 2019**
San Francisco, California
Before: McKEOWN, W. FLETCHER, and MURGUIA, Circuit Judges.
Diana Ortiz-Chavez and her minor son, Steven Mejia-Ortiz (collectively,
“Petitioners”), petition for review of the Board of Immigration Appeals’ (“BIA”)
decision affirming the Immigration Judge’s (“IJ”) denial of their application for
*
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).
asylum, withholding of removal, and protection under the Convention Against
Torture (“CAT”). Because the parties are familiar with the facts, we do not recite
them here. We have jurisdiction under 8 U.S.C. § 1252. We deny the petition.
Petitioners sought asylum and withholding of removal based on a proposed
particular social group of “Salvadorans who witness murder by gang members[,]
have been threatened with death, [and] lack police protection.” After affording
Petitioners an opportunity to submit additional evidence supporting this proposed
particular social group, the IJ concluded that Petitioners failed to demonstrate that
the group was socially distinct within Salvadoran society. The BIA dismissed the
appeal on the same basis.
Reviewing de novo this question of law, Pirir-Boc v. Holder, 750 F.3d 1077,
1081 (9th Cir. 2014), we agree that Petitioners failed to show social distinction.
We have held that a proposed particular social group of “those who testified in
court against gang members” could be sufficiently distinct—provided the
petitioner presents sufficient evidence of social distinction. Henriquez-Rivas v.
Holder, 707 F.3d 1081, 1092–93 (9th Cir. 2013) (en banc). But here, Petitioners
did not testify in court or even speak with police, and the record contains no
“evidence showing that society in general perceives, considers, or recognizes
persons sharing the particular characteristic”—i.e., witnesses to gang murder who
receive a death threat and lack police protection—“to be a group.” Matter of
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W-G-R-, 26 I. & N. Dec. 208, 217 (BIA 2014). The BIA and IJ performed the
requisite evidence-based inquiry and correctly concluded that Ortiz-Chavez had
not shown her proposed particular social group is socially distinct. Pirir-Boc, 750
F.3d at 1084.
The BIA did not err by rejecting Petitioners’ alternative grounds for asylum
and withholding of removal. When the IJ clarified Petitioners’ claims, counsel for
Petitioners identified the particular social group discussed above as the only basis
for asylum and withholding of removal. Ortiz-Chavez also testified that she had
never belonged to or supported any political parties or student groups. The BIA
permissibly declined to consider Petitioners’ arguments, pursued for the first time
on appeal, that a different particular social group or their political opinion entitled
them to relief. Matter of J-Y-C-, 24 I. & N. Dec. 260, 261 n.1 (BIA 2007).
Substantial evidence supports the denial of Petitioners’ CAT claims. See
Yali Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017) (substantial evidence
review). The record does not support official involvement. See 8 C.F.R.
§ 1208.18(a)(1) (requiring “consent or acquiescence of a public official or other
person acting in an official capacity”). Absent this essential element of torture, the
record cannot compel the conclusion that Petitioners are eligible for CAT relief.
PETITION DENIED.
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