Abarca Juarez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 29, 2024
• Docket: 23-2416
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 29 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE ALFREDO ABARCA No. 23-2416 JUAREZ; MIGUEL EFRAIN ABARCA Agency Nos. RUIZ; JOSE JAVIER ABARCA A216-558-528 RUIZ; GEMIMA RUIZ DE A216-558-529 ABARCA; GEMIMA EDITH ABARCA A216-558-530 RUIZ; FELIX ALFREDO ABARCA RUIZ, A216-558-556 A216-558-557 Petitioners, A216-558-558 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted October 24, 2024** Portland, Oregon

Before: LEE, VANDYKE, and H.A. THOMAS, 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 Jose Alfredo Abarca Juarez, Miguel Efrain Abarca Ruiz, Jose

Javier Abarca Ruiz, Gemima Ruiz de Abarca, Gemima Edith Abarca Ruiz, and

Felix Alfredo Abarca Ruiz are citizens of El Salvador. They petition for review of

a decision of the Board of Immigration Appeals (BIA) affirming an Immigration

Judge’s (IJ) decision denying their application for asylum and Jose Alfredo’s

application for withholding of removal.1 We have jurisdiction under 8 U.S.C.

§ 1252. We deny the petition.

Where, as here, the BIA adopts and affirms an IJ’s decision while citing

Matter of Burbano, 20 I. & N. Dec. 872, 874 (B.I.A. 1994), we will “review the

IJ’s decision as if it were that of the BIA.” Tista v. Holder, 722 F.3d 1122, 1125

(9th Cir. 2013) (quoting Samayoa-Martinez v. Holder, 558 F.3d 897, 899 (9th Cir.

2009)). We review the IJ’s factual findings for substantial evidence, meaning that

the agency’s findings are “conclusive unless any reasonable adjudicator would be

compelled to conclude to the contrary.” Salguero Sosa v. Garland, 55 F.4th 1213,

1218 (9th Cir. 2022) (quoting Nasrallah v. Barr, 590 U.S. 573, 584 (2020)); 8

U.S.C. § 1252(b)(4)(B).

1 The petitioners do not challenge the IJ’s denial of relief under the Convention Against Torture (CAT). All petitioners except for Jose Alfredo are derivative beneficiaries of Jose Alfredo’s asylum application, but because they did not file separate applications for withholding of removal or CAT protection, they are ineligible for those forms of relief. See Ali v. Ashcroft, 394 F.3d 780, 782 n.1 (9th Cir. 2005) (stating that, unlike asylum, derivative relief is not available with respect to withholding of removal or CAT relief).

2 23-2416 The petitioners argue that the IJ erred in finding that they were persecuted

for financial gain, rather than because of Jose Alfredo’s membership in their

proposed social group of “Salvadoran entrepreneurs operating in the transportation

sector.” But Jose Alfredo acknowledged when testifying before the IJ that the

Mara 18 street gang targeted him for financial reasons, and he explained that his

ownership of a cargo transportation business was relevant because it meant the

gangs thought he had access to money. The IJ therefore did not err in finding the

Mara 18 gang was motivated by financial gain and was not “motivated

intrinsically” by Jose Alfredo’s ownership of a transportation business. See

Rodriguez-Zuniga v. Garland, 69 F.4th 1012, 1020 (9th Cir. 2023).

Additionally, even if the petitioners were targeted for the reasons they say,

their claims would still fail because the IJ properly found that their proposed social

group was not cognizable. For a social group to provide a cognizable basis for

asylum or withholding of removal, it must be “(1) composed of members who

share a common immutable characteristic, (2) defined with particularity, and (3)

socially distinct within the society in question.” Macedo Templos v. Wilkinson, 987

F.3d 877, 882 (9th Cir. 2021) (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227,

237 (B.I.A. 2014)). The petitioners, however, point to no evidence that their

proposed social group is viewed as socially distinct in El Salvador. And we have

also explained that social groups defined by business ownership are not cognizable

3 23-2416 because they are not immutable. Id. at 882–83 (rejecting a proposed social group of

“wealthy business owners” under the particularity, immutability, and social

distinction criteria).2

PETITION DENIED.

2 Because the petitioners’ failure to show nexus is dispositive of their claims for asylum and withholding of removal, Rodriguez-Zuniga, 69 F.4th at 1016, we need not address their argument that the IJ erred in finding that they failed to establish past persecution or a well-founded fear of future persecution.

4 23-2416