Arely Peralta-Gutierrez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 17, 2021
• Docket: 18-71046
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 17 2021 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

ARELY MARLIZETH PERALTA No. 18-71046 GUTIERREZ, AKA Arely Marlizeth Peralta, Agency No. A208-947-850

Petitioner, MEMORANDUM* v. MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted December 11, 2020** Pasadena, California

Before: BEA, THAPAR,*** and COLLINS, Circuit Judges.

Arely Marlizeth Peralta Gutierrez (“Peralta”), a native and citizen of

Mexico, petitions for review of the decision of the Board of Immigration Appeals

(“BIA”) affirming the order of the Immigration Judge (“IJ”) denying her

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes that this case is suitable for decision without oral argument. See FED. R. APP. P. 34(a)(2)(C). *** The Honorable Amul R. Thapar, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. application for withholding of removal.1 We have jurisdiction under § 242 of the

Immigration and Nationality Act (“INA”), 8 U.S.C. § 1252, and we deny the

petition.

To establish her eligibility for withholding of removal, Peralta had to show

that, if removed to Mexico, she would likely suffer persecution “because of [her]

race, religion, nationality, membership in a particular social group, or political

opinion.” 8 U.S.C. § 1231(b)(3)(A); see also id. § 1231(b)(3)(C). Before the

agency, Peralta asserted that she would be persecuted on account of her

membership in two proposed social groups—viz., “single women in households”

and “women in households where men are not present.” She based this contention

on the repeated harassment that she had experienced between the ages of 12 and 16

from a man in her town known as “El Güero.” The BIA affirmed the IJ’s denial of

withholding of removal, holding that Peralta’s proposed social groups were

“insufficiently particularized to meet the particularity requirement for a legally

cognizable particular social group” and that, in any event, she had failed “to

demonstrate the requisite nexus” between the alleged harassment and her

membership in these proposed groups. In addressing this decision, we review the

1 The BIA also rejected Peralta’s application for relief under the Convention Against Torture, but Peralta does not challenge that ruling in her opening brief and the point is therefore forfeited. See Balser v. Dep’t of Justice, 327 F.3d 903, 911 (9th Cir. 2003).

2 agency’s legal conclusions de novo and its factual findings for substantial

evidence. Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en

banc).

We agree with the BIA that Peralta’s proposed social groups do not satisfy

the particularity requirement. Particularity means that “the social group must be

defined by characteristics that provide a clear benchmark for determining who falls

within the group.” Diaz-Reynoso v. Barr, 968 F.3d 1070, 1077 (9th Cir. 2020)

(simplified). In other words, “the relevant society must have a ‘commonly

accepted definition[]’ of the group.” Nguyen v. Barr, 983 F.3d 1099, 1103 (9th

Cir. 2020) (citation omitted). “‘The group must also be discrete and have definable

boundaries—it must not be amorphous, overbroad, diffuse, or subjective.’” Id.

(citation omitted). Here, both of Peralta’s proposed groups comprise “a variety of

different individuals . . . who do not form a cohesive” group and therefore lack

particularity. See Santos-Lemus v. Mukasey, 542 F.3d 738, 746 (9th Cir. 2008),

overruled on other grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir.

2013) (en banc).

As to the first group, the phrase “single women in households” could

connote many different types of individuals: those who live entirely alone;

widows; those who are not married but are in romantic relationships; and those

who are neither married nor in a romantic relationship. The second proposed

3 group—women in households where men are not present—is likewise too diffuse

and amorphous. Men might not be “present” in a woman’s household in a wide

array of very different circumstances: they might be away for work for a brief or

extended period of time; they might have abandoned their homes; they might be

deceased; or they might have gone missing. The ill-defined nature of the

boundaries of these groups is underscored by the fact that Peralta believed herself

to be a member of both groups even though she testified that one of her adult male

uncles did live with her in her grandmother’s house in Mexico. Because these two

proposed groups are defined in such an overbroad, amorphous, and diffuse manner,

they lack the sort of “‘sufficiently distinct’” boundaries needed to qualify as a

“‘discrete class of persons’” within the relevant society. Henriquez-Rivas, 707

F.3d at 1091 (citation omitted).

In the absence of a showing that she is a member of a “particular social

group” within the meaning of the INA, see 8 U.S.C. § 1231(b)(3)(A), Peralta’s

claim for withholding of removal necessarily fails and the BIA properly rejected

that claim. Id. § 1231(b)(3)(C) (applicant has the burden to establish the elements

of a withholding claim). We therefore need not address the BIA’s alternative

holding that Peralta also failed to establish the requisite nexus between her

proposed social groups and any asserted past or future persecution.

The petition for review is DENIED.