NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 15 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
FERNANDO RODRIGUEZ-RODAS, No. 20-72542
Petitioner, Agency No. A206-628-399
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 10, 2021**
Seattle, Washington
Before: McKEOWN, MILLER, and BADE, Circuit Judges.
Fernando Rodriguez-Rodas, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’ (“BIA”) decision dismissing his
appeal from the Immigration Judge’s denial of his application for asylum,
withholding of removal, and protection under the Convention against Torture
*
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).
(“CAT”). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
We review an agency’s factual findings for substantial evidence, and “[t]he
agency’s ‘findings of fact are conclusive unless any reasonable adjudicator would
be compelled to conclude to the contrary.’” Nasrallah v. Barr, 140 S. Ct. 1683,
1692 (2020) (quoting 8 U.S.C. § 1252(b)(4)(B)). We review de novo the agency’s
conclusions of law. See Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059
(9th Cir. 2017) (en banc).
1. Rodriguez-Rodas contends he is entitled to asylum and statutory
withholding of removal based on his membership in the particular social group of
“Salvadoran material witnesses of gang crimes.”1 See 8 U.S.C. §§ 1101(a)(42)(A),
1158(b)(1)(A) (asylum); 1231(b)(3) (withholding of removal). A claim of asylum
or withholding of removal based on membership in a particular social group
requires the applicant to “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.” 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)).
The BIA permissibly rejected the proposed particular social group
1
Rodriguez-Rodas also sought relief based on membership in another social
group and imputed political opinion, but the agency’s related rulings are not before
us.
2
“Salvadoran material witnesses to gang crimes” as not cognizable because it lacks
sufficient particularity. Cf. Nguyen v. Barr, 983 F.3d 1099, 1103–04 (9th Cir.
2020) (rejecting proposed group of “known drug users” as “amorphous, overbroad,
diffuse, or subjective”). The record evidence does not compel the conclusion that
the terms “material witness” and “gang crimes” have “commonly accepted
definitions” in Salvadoran society. Reyes, 842 F.3d at 1135 (recognizing that a
particularity requires “that a particular social group have clear boundaries and that
its characteristics have commonly accepted definitions”); cf. Henriquez-Rivas v.
Holder, 707 F.3d 1081, 1093 (9th Cir. 2013) (observing that membership in social
group of “those who had testified against M–18 gang members in open court”
could be easily verified and delimited through court records documenting the
group members’ testimony (emphasis removed)).
The BIA also permissibly rejected the proposed social group “Salvadoran
material witnesses of gang crimes” as lacking social distinction because
Rodriguez-Rodas did not present sufficient evidence that Salvadoran society
perceives that group as a discrete class of persons. See Reyes, 842 F.3d at 1136;
Matter of M-E-V-G-, 26 I & N Dec. at 238 (“The members of a particular social
group will generally understand their own affiliation with the grouping, as will
other people in the particular society.”).
3
The BIA applied the correct legal standard in concluding that there was
insufficient evidence that the particular social group had “unique vulnerability”
and social distinction. See Diaz-Torres v. Barr, 963 F.3d 976, 980 (9th Cir. 2020)
(internal quotation marks omitted). There is no indication that the BIA failed to
consider the record evidence. Its failure to specifically mention every piece of
evidence does not suggest that it failed to review all of the evidence. See
Najmabadi v. Holder, 597 F.3d 983, 990–91 (9th Cir. 2010) (rejecting the
argument that the mere failure to mention evidence shows that the BIA failed to
consider all the evidence). Accordingly, we affirm the BIA’s decision that
Rodriguez-Rodas’s proposed social group of “Salvadoran material witnesses of
gang crimes” is not cognizable and its denial of asylum based on the failure to
establish a nexus between the alleged persecution and a protected ground.2
2. Rodriguez-Rodas’s failure to establish membership in a cognizable
social group forecloses his statutory withholding of removal claim because even if
the harm he experienced, or might experience in the future, rose to the level of
persecution, he failed to show the requisite nexus to a protected ground. See 8
U.S.C. § 1231(b)(3); see also Barajas-Romero v. Lynch, 846 F.3d 351, 358–59
2
Applicants for asylum and withholding of removal must show a nexus
between the persecution and a protected ground. See Baghdasaryan v. Holder, 592
F.3d 1018, 1023 (9th Cir. 2010). Because Rodriguez-Rodas has not shown the
requisite nexus, we need not consider whether he experienced persecution.
4
(9th Cir. 2017) (holding that the protected ground need only be “a reason” for
withholding of removal claims, whereas it must be “one central reason” for asylum
claims). Therefore, we affirm the BIA’s determination that Rodriguez-Rodas is
not entitled to withholding of removal.
3. Rodriguez-Rodas also argues that he is eligible for CAT protection.
To be eligible for CAT relief, Rodriguez-Rodas must show that he “will more
likely than not be tortured” by or with acquiescence from public officials or others
acting in an official capacity if removed to El Salvador. See Xochihua-Jaimes v.
Barr, 962 F.3d 1175, 1183 (9th Cir. 2020); 8 C.F.R. §§ 1208.16(c)(2),
1208.18(a)(1). Even if Rodriguez-Rodas could show he would be tortured by gang
members, substantial evidence supports the BIA’s finding that he failed to show
that any torture would occur with the consent, acquiescence, or willful blindness of
a government official or person acting in an official capacity considering evidence
of El Salvador’s anti-gang measures and its witness protection program that has
had some success. 8 C.F.R. § 1208.18(a)(1).
PETITION DENIED.
5