FILED
NOT FOR PUBLICATION
OCT 6 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARLON GEOVANNY GUTIERREZ Nos. 17-72632
HERNANDEZ; KAREN YAMILET 18-71365
DIAZ NAVARRO; JASON RICARDO
GOMEZ DIAZ; ONEYDA MARISOL Agency Nos. A208-311-508
GOMEZ DIAZ; BRITANY DAYANARA A208-310-232
GUTIERREZ DIAZ, A208-310-233
A208-310-238
Petitioners, A208-310-239
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 2, 2020**
San Francisco, California
Before: HAWKINS, GRABER, and BYBEE, Circuit Judges.
*
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).
Petitioners are romantic partners and three minor children who are all
natives and citizens of Honduras. Petitioners have filed two petitions for review.
The first petition seeks review of the Board of Immigration Appeals’ (BIA) denial
of their claims for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). The second petition seeks review of the
BIA’s denial of their motion to reopen removal proceedings based on a claim of
ineffective assistance of counsel. We consolidated the two petitions and review
them together.
We have jurisdiction under 8 U.S.C. § 1252. We will uphold the denial of
asylum, withholding of removal, and CAT claims unless the record “compels a
contrary conclusion.” Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir. 2007). We
review the denial of a motion to reopen removal proceedings for abuse of
discretion. Agonafer v. Sessions, 859 F.3d 1198, 1203 (9th Cir. 2017). We deny
both petitions.
1. Substantial evidence supports the denial of asylum, withholding of
removal, and CAT relief. Specifically, substantial evidence supports the BIA’s
conclusion that, under the standards applicable to asylum (“one central reason”)
and to withholding of removal (“a reason”) for demonstrating a nexus between
harm and a protected ground, Barajas-Romero v. Lynch, 846 F.3d 351, 356–60
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(9th Cir. 2017), the violence Petitioners suffered was on account of an intra-family
conflict and not on account of a protected ground. Applying the applicable legal
standard set out in Barajas-Romero, the BIA determined that this dispute arose out
of the Petitioners’ refusal to allow their daughter to spend time at her aunt’s home
because the aunt was romantically involved with a member of a criminal gang.
Feeling slighted, the aunt enlisted several alleged members of the gang to torment
Petitioners. Accordingly, the BIA permissibly held that the dispute was personal
in nature.
Substantial evidence also supports the denial of CAT relief, because
Petitioner failed to establish that it is “more likely than not that a government
official or person acting in an official capacity would torture [the Petitioners] or aid
or acquiesce in [their] torture by others.” Wakkary v. Holder, 558 F.3d 1049,
1067–68 (9th Cir. 2009) (internal quotation marks omitted). Specifically,
substantial evidence supports the BIA’s determination that the Honduran
government would not sanction gang violence if Petitioners returned. Police took a
report and investigated Petitioners’ complaints related to the gang, they issued a
restraining order against the children’s aunt and her friend who were both
associated with the gang, and the court scheduled a hearing to determine whether
the aunt was guilty of a criminal offense. Although the police required Petitioners
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to serve the restraining order, the Agency permissibly found that, on balance, the
police and local courts were willing to help Petitioners avoid further violence.
Unlike in J.R. v. Barr, No. 18-72812, 2020 WL 5494320, at *4–5 (9th Cir. Sept.
11, 2020), the government here did not withdraw its protection of Petitioners or
otherwise demonstrate an inability to control the gang.
2. The BIA did not abuse its discretion when it denied Petitioners’ motion to
reopen. Petitioners argue that they received ineffective assistance of counsel
because their lawyer defined the proposed particular social group as “individuals
who refuse to be threatened or harmed by gang members and as a result they are
relentlessly targeted.” Petitioners are correct that the lawyer’s proffered social
group was doomed from the start because the group was “defined exclusively by
the fact that it is targeted for persecution.” Matter of C-A-, 23 I. & N. Dec. 951,
960 (BIA 2006) (quoting UNHCR Guidelines, ¶ 2) (emphasis omitted); see also
Diaz-Reynoso v. Barr, 968 F.3d 1070, 1076 (9th Cir. 2020). Petitioners argue that
their lawyer should have defined the group as “witnesses willing to testify or have
testified against gang members and their affiliates, and family relationship.”
But Petitioners suffered no prejudice. To demonstrate prejudice, Petitioners
must show that the outcome of their proceedings would have been different had
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their attorney presented a different social group. Salazar-Gonzalez v. Lynch, 798
F.3d 917, 922 (9th Cir. 2015).
Witnesses who testify against criminal gang members may constitute a
cognizable social group. Henriquez-Rivas v. Holder, 707 F.3d 1081, 1092–93 (9th
Cir. 2013) (en banc). But Petitioners did not actually testify against any gang
members before fleeing Honduras. And had they testified, their testimony would
have related to a restraining order against the children’s aunt and her friend.
Neither the aunt nor the friend was a gang member. Any potential testimony
would have been only tangentially related to gang activity. Accordingly, the BIA
did not abuse its discretion in denying Petitioners’ motion to reopen.
The Attorney General’s decision in Matter of L-E-A-, 27 I. & N. Dec. 581
(U.S. Att’y Gen. 2019), does not change the outcome. There, the Attorney General
concluded that, although some family or clan groups may satisfy the fact-intensive
“particular social group” analysis, most family units cannot because “most nuclear
families are not inherently socially distinct.” Id. at *589. But, here, the BIA
permissibly found that a personal dispute—not membership in a family or
opposition to gangs—motivated the alleged persecution.
Petitions DENIED.
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