Andy Rodriguez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 13, 2019
• Docket: 18-72368
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 13 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANDY RODRIGUEZ, No. 18-72368

Petitioner, Agency No. 096-498-556

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Argued and Submitted November 5, 2019 Pasadena, California

Before: FARRIS, MCKEOWN, and PARKER, ** Circuit Judges.

Andy Rodriguez petitions for review of an order of the Board of

Immigration Appeals (“BIA”) affirming the decision of an Immigration Judge

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Barrington D. Parker, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation. 1 (“IJ”) denying his claim for withholding of removal under 8 U.S.C. § 1231(b)(3)

and protection under the Convention Against Torture (“CAT”). We have

jurisdiction pursuant to 8 U.S.C. § 1252.

Rodriguez is a citizen of Guatemala who was brought to this country when

he was three years old. He seeks withholding of removal and protection under the

CAT on two grounds. First, he contends that he is a member of a social group

consisting of “Guatemalans with tattoos that will identify them as having had a

gang affiliation.” Second, he contends that if he is removed, he will belong to a

group consisting of “Guatemalans who have returned to the country from the

United States” and that as a member of these groups, he will face persecution and

torture in Guatemala.

The BIA denied Petitioner’s request for withholding on the ground that he

had failed to establish that he was a member of a cognizable social group. Instead,

the IJ and the BIA determined that the groups posited by Rodriguez were too

amorphous and that the fears he referred to stemmed from the generalized

criminality and violence in Guatemala, considerations that did not supply a valid

basis for withholding of removal. See Zentino v. Holder, 622 F.3d 1007, 1016 (9th

Cir. 2010).

2 Our case law is clear that Petitioner’s purported groups are not cognizable

for purposes of the INA. We do not accept the contention that a “group” said to

consist of “Guatemalans with tattoos that will identify them as having had a gang

affiliation” and mark them for potential persecution meets the definition of a social

group. Petitioner’s proposed group is overbroad, lacking the necessary traits of

particularity and social distinction. See Arteaga v. Mukasey, 511 F.3d 940, 945 (9th

Cir. 2007) (explaining that a “tattooed gang member” is not a member of a

particular social group).

In addition, we have repeatedly rejected groups that center on returnees to a

country as a categorization that lacks particularity. Delgado-Ortiz v. Holder, 600

F.3d 1148, 1151-52 (9th Cir. 2010); see also Ramirez-Munoz v. Lynch, 816 F.3d

1226, 1229 (9th Cir. 2016) (a proposed social group of returning Mexicans was not

cognizable because it could not “be described with passable distinction that the

group would be recognized as a discrete class of persons”). In Reyes v. Lynch, we

concluded that a group centered on “deportees from the United States to El

Salvador” was “too amorphous, overbroad and diffuse” to meet the particularity

requirements because it included people of all ages, regardless of how long they

had been in the United States, the “reasons for their removal, or the recency of

their removal.” 842 F.3d 1125, 1140 (9th Cir. 2016).

3 Finally, we conclude that substantial evidence supports the Agency’s

determination that Petitioner did not establish he will “more likely than not” face

torture by the government if returned to Guatemala. See Garcia-Milian v. Holder,

755 F.3d 1026, 1033 (9th Cir. 2014) (quoting 8 C.F.R. § 208.16(c)(2)). Record

evidence supports the BIA’s determination that Guatemalan law prohibits torture

and that those laws are actively enforced. A petitioner’s generalized fear about the

possibility of torture is, however sincere, without more, insufficient to compel a

conclusion contrary to that of the IJ and BIA. See Delgado-Ortiz, 600 F.3d at 1152.

For these reasons, we deny Petitioner’s request for review of the BIA’s

determination that Petitioner did not establish his entitlement to withholding of

removal or protection under the CAT.1 We have considered the remainder of

Petitioner’s arguments and find them to be without merit.

PETITION DENIED.

1 Petitioner has waived his claims for review of the BIA’s denial of asylum protection and voluntary departure. 4