NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 28 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ABELAR-PEREZ, No. 16-70988
Petitioner, Agency No. A200-822-944
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted August 7, 2019**
Before: THOMAS, Chief Judge, HAWKINS and McKEOWN, Circuit Judges.
Jose Abelar-Perez, a native and citizen of El Salvador, petitions for review
of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an
immigration judge’s decision denying his application for withholding of removal
and relief under the Convention Against Torture (“CAT”). We have jurisdiction
under 8 U.S.C. § 1252(a)(1), and we deny the petition.
*
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).
We review de novo questions of law, Cerezo v. Mukasey, 512 F.3d 1163,
1166 (9th Cir. 2008), except to the extent that deference is owed to the BIA’s
interpretation of the governing statutes and regulations, Simeonov v. Ashcroft,
371 F.3d 532, 535 (9th Cir. 2004). We review for substantial evidence the
agency’s factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir.
2006).
The BIA did not err in finding that two of Abelar-Perez’s proposed social
groups—bus assistants who refuse to pay taxes to gang members and long-term
residents of the United States who return to El Salvador—are not cognizable. See
Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (in order to demonstrate
membership in a particular group, “[t]he applicant must ‘establish that the group is
(1) composed of members who share a common immutable characteristic, (2)
defined with particularity, and (3) socially distinct within the society in question’”
(quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014))); see also
Ochoa v. Gonzales, 406 F.3d 1166, 1171 (9th Cir. 2005) (business owners in
Colombia who rejected demands by narco-traffickers to participate in illegal
activity was too broad a category to qualify as a particular social group); Reyes v.
Lynch, 842 F.3d 1125, 1138-40 (9th Cir. 2016) (“deportees from the United States
to El Salvador” are not a particular social group).
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Substantial evidence supports the agency’s conclusion that Abelar-Perez
failed to establish he would be persecuted on account of any other protected
ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (an applicant’s
“desire to be free from harassment by criminals motivated by theft or random
violence by gang members bears no nexus to a protected ground”). Our conclusion
is not affected by the differing nexus standards applicable to asylum and
withholding of removal claims. Cf. Barajas-Romero v. Lynch, 846 F.3d 351, 360
(9th Cir. 2017) (discussing Zetino v. Holder having drawn no distinction between
the standards where there was no nexus at all to a protected ground). Thus, the
withholding claim fails.
Substantial evidence supports the agency’s denial of CAT relief because
Abelar-Perez failed to show it is more likely than not he will be tortured by or with
the consent or acquiescence of the government if returned to El Salvador. See
Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009); see also Zheng v. Holder,
644 F.3d 829, 835-36 (9th Cir. 2011) (possibility of torture too speculative);
Garcia-Milian v. Holder, 755 F.3d 1026, 1033-35 (9th Cir. 2014) (petitioner did
not establish the necessary “state action” for CAT relief). Thus, the claim for CAT
relief fails.
PETITION FOR REVIEW DENIED.
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