NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE VERGARA SALGADO, No. 22-755
Agency No.
Petitioner, A213-082-602
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 16, 2023**
San Francisco, California
Before: FORREST and MENDOZA, Circuit Judges, and OLIVER, Senior District
Judge.***
Petitioner Jose Vergara Salgado (“Salgado”) seeks review of a decision by
the Board of Immigration Appeals (the “BIA” or the “Board”) to dismiss his
*
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).
***
The Honorable Solomon Oliver, Jr., Senior United States District
Judge for the Northern District of Ohio, sitting by designation.
appeal from an Immigration Judge’s (“IJ”) denial of his application for asylum,
withholding from removal, and protection under the Convention Against Torture
(“CAT”). We have jurisdiction to review the Board’s decision under 8 U.S.C.
§ 1252. After reviewing the Board’s factual findings for substantial evidence, and
its legal conclusions de novo, Flores Molina v. Garland, 37 F.4th 626, 632 (9th
Cir. 2022), we deny the petition for review.
Salgado mounts several arguments in his petition for review.1 We first
address his challenge to the Board’s conclusion that his proffered PSGs are not
legally cognizable. Salgado claimed membership in three social groups: (1)
families from Guerrero, Mexico who are perceived to have money, (2) families
from Guerrero who refuse to cooperate with criminal organizations, and (3) men
working in agriculture from Guerrero, Mexico who refuse to cooperate with
criminal organizations. However, to establish a cognizable PSG, Salgado must
show that his proposed social groups are: “(1) composed of members who share a
common immutable characteristic, (2) defined with particularity, and (3) socially
1
The BIA did not address the IJ’s adverse credibility determination or the IJ’s
finding regarding Salgado’s untimely asylum application because the Board found
Salgado’s grounds for relief deficient on the merits. Accordingly, the Court
declines to address Salgado’s arguments on these issues. See Santiago-Rodriguez
v. Holder, 657 F.3d 820, 829 (9th Cir. 2011) (explaining review is limited to the
grounds relied on by the Board). Moreover, because the BIA did not make an
adverse credibility finding, we accept Salgado’s testimony as true for the purpose
of our review. Kumar, 728 F.3d at 998.
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distinct within the society in question.” Akosung v. Barr, 970 F.3d 1095, 1103 (9th
Cir. 2020) (citing Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014)).
With respect to the first proffered group, Salgado has not alleged facts to
demonstrate that his family is “socially distinct” or identifiable by their perceived
wealth. See 8 U.S.C. §§ 1158(b)(1)(B), 1231(b)(3)(C) (noting the applicant bears
the burden of establishing eligibility for asylum or withholding from removal).
Salgado claims that because he would be a total stranger returning to Guerrero
after thirty years, he will be recognized as a person who has money or whose
family is perceived to have money. Without providing supporting facts to show
how wealthy families are perceived differently in Guerrero, Salgado simply alleges
that because Guerrero is the poorest state in Mexico, wealthy families in Guerrero
are necessarily socially distinct. However, such an inference is insufficient to
establish a legally cognizable PSG. See Ramirez-Munoz v. Lynch, 816 F.3d 1226,
1228-29 (9th Cir. 2016) (finding “imputed wealthy Americans” returning to
Mexico was insufficiently distinct or otherwise recognized as a discrete class in
Mexico).
Similarly, Salgado’s remaining two PSGs are also not legally cognizable
because they are not socially distinct or sufficiently particular. The key to
sufficiently defining a PSG is ensuring the group is defined narrowly rather than
overly broad. Ochoa v. Gonzales, 406 F.3d 1166, 1170-71 (9th Cir. 2005)
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(concluding a group of business owners who refused to pay money to criminal
organizations was “too broad” to constitute a PSG); see also Santos-Lemus v.
Mukasey, 542 F.3d 738, 745-46 (9th Cir. 2008) (finding that “young men in El
Salvador resisting gang violence” was too loosely defined to satisfy the
particularity requirement), abrogated by Henriquez-Rivas v. Holder, 707 F.3d 1081
(9th Cir. 2013) on other grounds. Here, Salgado’s final two proffered groups
include a “sweeping demographic division” too broad and diverse to qualify as a
narrowly defined social group. Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th
Cir. 2010) (“[I]ndividuals falling within the parameters of this sweeping
demographic division naturally manifest a plethora of different lifestyles, varying
interests, diverse cultures, and contrary political leanings.”) (citing Ochoa, 406
F.3d at 1171 (quoting Sanchez-Trujillo v. INS, 801 F.2d 1571, 1577 (9thCir.
1986)). Considering our precedent, Salgado’s proffered social groups are not
legally cognizable.
Even if Salgado were able to establish membership in a protected group, he
is unable to satisfy the nexus requirement for asylum or withholding from removal.
See Ayala v. Holder, 640 F.3d 1095, 1097 (9th Cir. 2011) (determining even if
membership in a particular social group is established, an applicant must still show
that “persecution was or will be on account of his membership in such group”).
Salgado alleges that because he would be perceived to have money, and because
4 22-755
members of his family were targeted by the cartels in Guerrero, he has a reasonable
fear of persecution. Notably, these arguments neglect to allege a nexus between
Salgado’s membership in his latter two proffered PSGs. Moreover, just because
multiple members of Salgado’s family have unfortunately been killed or suffered
harm in their home country does not mean they were subjected to harm because of
their shared association in Salgado’s family or perceived wealth, which is the
essence of the nexus inquiry. See Barajas-Romero v. Lynch, 846 F.3d 351, 356-57
(9th Cir. 2017).
Without evidence demonstrating that the cartels singled out members of
Salgado’s family because of their relation to one another and their refusal to
cooperate with the cartel’s regime, or evidence that the cartels uniquely target male
agricultural workers or people they perceive as wealthy, Salgado’s fear amounts to
a generalized fear of criminal activity in his home country. Such a fear is
insufficient to demonstrate that Salgado has a fear of persecution on account of his
protected social groups. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010)
(noting that 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”). Because Salgado has failed to establish membership in a
legally cognizable PSG or a nexus connecting his fear of persecution to a PSG, his
basis for asylum and withholding from removal necessarily fail. See 8 U.S.C.
5 22-755
§§ 1158(b), 1231(b)(A). Accordingly, we decline to address Salgado’s remaining
arguments regarding these grounds for protection.
Finally, Salgado argues with respect to his CAT claim that the Board and the
IJ failed to consider country-conditions evidence demonstrating that Mexican
officials would acquiesce to his torture. Contrary to Salgado’s contention, the IJ
did consider this evidence and the BIA affirmed the IJ’s conclusion that Salgado
has failed to demonstrate that, more likely than not, he will be tortured by or with
the consent or acquiescence of the government if returned to Mexico. See 8 C.F.R.
§ 1208.18(a)(1) (explaining torture must be “inflicted by or at the instigation of or
with the consent or acquiescence of a public official or other person acting in an
official capacity”). Although Salgado testified about police corruption in Mexico,
as well as his and his family’s experiences with cartel violence in Guerrero, he
offers no evidence of a “particularized risk of torture…higher than that faced by all
Mexican citizens.” Ruiz-Colmenares v. Garland, 25 F.4th 742, 751-52 (9th Cir.
2022). Thus, the Board did not err in denying Salgado’s CAT claim.
PETITION DENIED.
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