NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 13 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDY RODRIGUEZ, No. 18-72368
Petitioner, Agency No. 096-498-556
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 5, 2019
Pasadena, California
Before: FARRIS, MCKEOWN, and PARKER, ** Circuit Judges.
Andy Rodriguez petitions for review of an order of the Board of
Immigration Appeals (“BIA”) affirming the decision of an Immigration Judge
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Barrington D. Parker, Jr., United States Circuit Judge
for the U.S. Court of Appeals for the Second Circuit, sitting by designation.
1
(“IJ”) denying his claim for withholding of removal under 8 U.S.C. § 1231(b)(3)
and protection under the Convention Against Torture (“CAT”). We have
jurisdiction pursuant to 8 U.S.C. § 1252.
Rodriguez is a citizen of Guatemala who was brought to this country when
he was three years old. He seeks withholding of removal and protection under the
CAT on two grounds. First, he contends that he is a member of a social group
consisting of “Guatemalans with tattoos that will identify them as having had a
gang affiliation.” Second, he contends that if he is removed, he will belong to a
group consisting of “Guatemalans who have returned to the country from the
United States” and that as a member of these groups, he will face persecution and
torture in Guatemala.
The BIA denied Petitioner’s request for withholding on the ground that he
had failed to establish that he was a member of a cognizable social group. Instead,
the IJ and the BIA determined that the groups posited by Rodriguez were too
amorphous and that the fears he referred to stemmed from the generalized
criminality and violence in Guatemala, considerations that did not supply a valid
basis for withholding of removal. See Zentino v. Holder, 622 F.3d 1007, 1016 (9th
Cir. 2010).
2
Our case law is clear that Petitioner’s purported groups are not cognizable
for purposes of the INA. We do not accept the contention that a “group” said to
consist of “Guatemalans with tattoos that will identify them as having had a gang
affiliation” and mark them for potential persecution meets the definition of a social
group. Petitioner’s proposed group is overbroad, lacking the necessary traits of
particularity and social distinction. See Arteaga v. Mukasey, 511 F.3d 940, 945 (9th
Cir. 2007) (explaining that a “tattooed gang member” is not a member of a
particular social group).
In addition, we have repeatedly rejected groups that center on returnees to a
country as a categorization that lacks particularity. Delgado-Ortiz v. Holder, 600
F.3d 1148, 1151-52 (9th Cir. 2010); see also Ramirez-Munoz v. Lynch, 816 F.3d
1226, 1229 (9th Cir. 2016) (a proposed social group of returning Mexicans was not
cognizable because it could not “be described with passable distinction that the
group would be recognized as a discrete class of persons”). In Reyes v. Lynch, we
concluded that a group centered on “deportees from the United States to El
Salvador” was “too amorphous, overbroad and diffuse” to meet the particularity
requirements because it included people of all ages, regardless of how long they
had been in the United States, the “reasons for their removal, or the recency of
their removal.” 842 F.3d 1125, 1140 (9th Cir. 2016).
3
Finally, we conclude that substantial evidence supports the Agency’s
determination that Petitioner did not establish he will “more likely than not” face
torture by the government if returned to Guatemala. See Garcia-Milian v. Holder,
755 F.3d 1026, 1033 (9th Cir. 2014) (quoting 8 C.F.R. § 208.16(c)(2)). Record
evidence supports the BIA’s determination that Guatemalan law prohibits torture
and that those laws are actively enforced. A petitioner’s generalized fear about the
possibility of torture is, however sincere, without more, insufficient to compel a
conclusion contrary to that of the IJ and BIA. See Delgado-Ortiz, 600 F.3d at 1152.
For these reasons, we deny Petitioner’s request for review of the BIA’s
determination that Petitioner did not establish his entitlement to withholding of
removal or protection under the CAT.1 We have considered the remainder of
Petitioner’s arguments and find them to be without merit.
PETITION DENIED.
1
Petitioner has waived his claims for review of the BIA’s denial of asylum
protection and voluntary departure.
4
Andy Rodriguez v. William Barr
Combined Opinion