NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 10 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CELIA SARID QUINTANILLA-DIAZ, No. 19-70530
Petitioner, Agency No. A088-356-349
v.
MEMORANDUM*
ROBERT M. WILKINSON, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 3, 2021**
San Francisco, California
Before: THOMAS, Chief Judge, and IKUTA and NGUYEN, Circuit Judges.
Partial Dissent by Judge IKUTA
Celia Sarid Quintanilla-Diaz, a native and citizen of El Salvador, applied for
withholding of removal and protection under the Convention Against Torture
(“CAT”). The Board of Immigration Appeals (“BIA”) upheld the immigration
judge’s (“IJ”) denial of withholding and CAT protection. Quintanilla-Diaz
*
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).
petitions for review. We have jurisdiction under 8 U.S.C. § 1252(a) and we grant
in part and deny in part.
1. Quintanilla-Diaz argues that the BIA erred in holding that her
proffered particular social groups “women who are victims of domestic violence”
and “female victims of gender-based violence” are impermissibly circular.1 We
review legal questions de novo. Arrey v. Barr, 916 F.3d 1149, 1157 (9th Cir.
2019). “[T]he conclusion that a proposed social group is impermissibly circular
may not be reached summarily merely because the proposed group mentions
harm.” Diaz-Reynoso v. Barr, 968 F.3d 1070, 1086 (9th Cir. 2020). Instead, the
BIA must conduct a “‘rigorous analysis,’” id. at 1079 (quoting Matter of A-B-, 27
I&N Dec. 316, 340 (A.G. 2018)), and consider on a case-by-case basis “whether
[the] group is cognizable if it is defined without reference to the fact of
persecution,” id. at 1080. The BIA’s analysis here suffers from the same flaw as
the BIA decision in Diaz-Reynoso. In two short sentences and citing Matter of A-
B-, the BIA summarily found Quintanilla-Diaz’s proffered social groups not
cognizable because they do not “exist independently of the harm asserted in an
1
To the extent Quintanilla-Diaz argues that she is a member of a particular
social group other than “women who are victims of domestic violence” or “female
victims of gender-based violence”—the two groups analyzed by the BIA—she has
waived that argument. Abebe v. Mukasey, 554 F.3d 1203, 1208 (9th Cir. 2009)
(“Petitioner will . . . be deemed to have exhausted only those issues he raised and
argued in his brief before the BIA.”).
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application for asylum or withholding of removal.” Therefore, we grant the
petition as to the withholding claim and remand so the BIA can determine in the
first instance whether Quintanilla-Diaz’s proposed social groups are cognizable
without reference to persecution. See Diaz-Reynoso, 968 F.3d at 1080, 1088.
2. Substantial evidence supports the BIA’s determination that
Quintanilla-Diaz did not show that it was more likely than not that she would be
tortured with government acquiescence. While country conditions evidence
demonstrates widespread gang criminal activity, police ineffectiveness, and
extreme violence against women, the record does not compel the conclusion that
the Salvadoran government acquiesces in domestic or gang violence because there
is not significant record evidence that it acts in concert with abusers or gangs or
turns a blind eye to their activities. See Andrade-Garcia v. Lynch, 828 F.3d 829,
836 (9th Cir. 2016) (“We have reversed agency determinations that future torture is
not likely only when the agency failed to take into account significant evidence
establishing government complicity in the criminal activity.”) (emphasis added).
The petition is therefore denied as to the claim for CAT relief.
GRANTED in part and DENIED in part.
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FILED
FEB 10 2021
Quintanilla-Diaz v. Wilkinson, No. 19-70530
MOLLY C. DWYER, CLERK
IKUTA, Circuit Judge, dissenting in part: U.S. COURT OF APPEALS
I disagree with the panel majority’s decision to remand this case to the BIA
so that the BIA can provide a more detailed analysis concerning whether
Quintanilla-Diaz’s claimed particular social group is cognizable under the
definition of “refugee.” See 8 U.S.C. § 1101(a)(42).
An applicant for relief from removal must establish that the claimed
particular social 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.” Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir.
2016) (quoting Matter of M–E–V–G–, 26 I. & N. Dec. 227, 237 (BIA 2014)).
“[T]he focus of the particularity requirement is whether the group is discrete,” id.
(citation omitted), meaning that it has “clear boundaries and that its characteristics
have commonly accepted definitions,” id. at 1135. The BIA must take a case-by-
case approach to such a claim, and apply the standards articulated in BIA
decisions. See Diaz-Reynoso v. Barr, 968 F.3d 1070, 1080 (9th Cir. 2020).
In acknowledging the BIA must take an individualized approach to this
issue, we recently recognized that the mere “mention of feared persecution” does
not categorically disqualify an “otherwise cognizable social group.” Id. at
1084–85. Nevertheless, “a particular social group must exist independently of the
harm asserted,” id. at 1080, and “a group may be deemed impermissibly circular if,
after conducting the proper case-by-case analysis, the BIA determines that the
group is defined exclusively by the fact that its members have been subjected to
harm,” id. at 1086 (cleaned up).
Here, the BIA held that Quintanilla-Diaz’s claimed particular social groups
of “female victims of gender-based violence” and “women who are victims of
domestic violence” are not cognizable because they do not exist independently of
the harm asserted and therefore are impermissibly circular. This conclusion is
consistent with BIA precedent and our precedent. Unlike in Diaz-Reynoso, 968
F.3d at 1087, the BIA here did not hold that Quintanilla-Diaz’s claimed particular
social groups were not cognizable merely because the proposed groups mention
harm. Rather, the BIA considered Quintanilla-Diaz’s claimed groups and correctly
determined that they do not exist independently of the harm asserted. Without
reference to domestic violence or gender-based violence (the harm asserted), the
proposed groups consist of all women, which is too amorphous and general to meet
the particularity requirement.
Nothing in Diaz-Reynoso or BIA precedents imposes a duty on the BIA to
make an express ruling on whether the petitioner has carried its burden of proof as
to each of the three prongs of the particular social group analysis. But even if there
2
were such a requirement, any failure to make such a ruling was harmless here.
Quintanilla-Diaz had the burden of proving that she suffered past persecution or
has a well-founded fear of future persecution on account of membership in a
cognizable particular social group, Ali v. Holder, 637 F.3d 1025, 1029 (9th Cir.
2011), yet she provided no evidence whatsoever of particularity or social
distinction as to her claimed groups. Accordingly, I concur with the majority’s
disposition of Quintanilla-Diaz’s CAT claim, and I otherwise dissent.
3