Corpeno-Romero v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 22, 2024
• Docket: 23-576
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS OCT 22 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CANDELARIA DE LOS ANGELES No. 23-576 CORPENO-ROMERO; JAVI Agency Nos. ALEXANDER CORNEJO-CORPENO, A215-944-680 A215-944-681 Petitioners,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Argued and Submitted May 17, 2024 San Francisco, California

Before: S.R. THOMAS, CALLAHAN, and SANCHEZ, Circuit Judges.

Candelaria De Los Angeles Corpeno-Romero and her child Javi Alexander

Cornejo-Corpeno (“Petitioners”) are natives and citizens of El Salvador.1

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1 Candelaria is the lead Petitioner. Javi filed his own asylum application and was listed as a derivative beneficiary on his mother’s asylum application. Petitioners seek review of a decision of the Board of Immigration Appeals

(“BIA”), which affirmed the Immigration Judge’s (“IJ”) denial of their applications

for asylum, withholding of removal, and protection under the Convention Against

Torture (“CAT”).

We have jurisdiction under 8 U.S.C. § 1252. “We review denials of asylum,

withholding of removal, and CAT relief for substantial evidence and will uphold a

denial supported by reasonable, substantial, and probative evidence on the record

considered as a whole.” Yali Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir.

2017) (cleaned up). We grant the petition in part, deny the petition in part, and

remand to the BIA for further proceedings consistent with this opinion.2

1. The agency’s rejection of Petitioners’ groups based on their

opposition to M-18 or Candelaria’s sex and marital status is supported by

substantial evidence. Petitioners allege that their removal to El Salvador would

result in persecution on account of their membership in the following particular

social groups: (1) Salvadoran women without male familial protection; (2)

Salvadorans who openly oppose criminal gangs who have far reach in society and

2 In a separate published opinion filed concurrently with this memorandum disposition, we address Petitioners’ argument that the agency erred in denying their applications for asylum and withholding of removal on the ground that they did not establish past persecution or a well-founded fear of future persecution in El Salvador on account of a protected ground: their familial relationship with Javi’s father.

2 23-576 evade control of authorities; and (3) Salvadoran parents of youth who have been

recruited and threatened by gangs but have refused to join. They also claim that

they were and will be persecuted based on their anti-M-18 political opinions.

These claims lack merit.3

2. Substantial evidence supports the agency’s conclusion that Candelaria

did not show that she was or will be persecuted based on her status as a

“Salvadoran wom[a]n without male familial protection.” As the agency noted, the

record shows that Candelaria “was not threatened or harmed despite living for

years in El Salvador without a partner.”

3. Substantial evidence supports the agency’s conclusion that Petitioners

are not members of the social group of “Salvadorans who openly oppose criminal

gangs who have far reach in society and evade control of authorities.” There is no

evidence that Petitioners openly opposed M-18. Javi’s opposition to M-18

amounted to fleeing from them, which by itself does not make him a member of

any particular social group. See Ramos-Lopez v. Holder, 563 F.3d 855, 861–62

(9th Cir. 2009) (rejecting the proposed social group of “young Honduran men who

have been recruited by the MS-13, but who refuse to join” as insufficiently

3 Petitioners also broadly argue that the BIA ignored their “arguments and material issues” without specifying what the agency missed. This argument is undeveloped and therefore waived. See United States v. Graf, 610 F.3d 1148, 1166 (9th Cir. 2010) (“Arguments made in passing and not supported by citations to the record or to case authority are generally deemed waived.”).

3 23-576 particular because there was “no unifying relationship or characteristic to narrow

this diverse and disconnected group” (citation omitted)), abrogated on other

grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc).

Candelaria visited a police station to offer emotional support as Carlos’s sister

identified his killers, but that was sixteen years ago and there is no evidence that

anyone in society other than the police officers saw her do so.

Substantial evidence supports the agency’s conclusion that neither act

amounts to open and/or socially distinctive opposition to M-18. The agency

properly rejected Petitioners’ political opinion claims for the same reason. See,

e.g., Barrios v. Holder, 581 F.3d 849, 856 (9th Cir. 2009) (rejecting argument that

non-citizen was persecuted on account of a political opinion where he alleged no

facts in support of a political opinion beyond his refusal to join the gang),

abrogated on other grounds by Henriquez-Rivas, 707 F.3d at 1081; Rodriguez-

Zuniga v. Garland, 69 F.4th 1012, 1017 (9th Cir. 2023) (expression of a political

opinion must be “sufficiently conscious and deliberate”).

4. Substantial evidence supports the IJ’s conclusion that Candelaria’s

proposed social group of “Salvadoran parents of youth who have been recruited

and threatened by gangs but have refused to join” is not cognizable. Petitioners’

evidence does not compel the conclusion that the group is sufficiently recognized

in El Salvador. Cf. Santos-Lemus v. Mukasey, 542 F.3d 738, 745–46 (9th Cir.

4 23-576 2008) (holding that young men in El Salvador resisting gang violence do not

constitute a particular social group), abrogated on other grounds by Henriquez-

Rivas, 707 F.3d at 1081.

5. Substantial evidence supports the BIA’s finding that Petitioners were

not entitled to CAT relief. To qualify for CAT relief, a petitioner must establish

that “it is more likely than not that he or she would be tortured if removed to the

proposed country of removal.” 8 C.F.R. § 1208.16(c)(2). As the agency

explained, Petitioners have not been tortured in the past, and the fact that the gang

members who killed Javi’s father were convicted and served time in prison

undermines Petitioners’ claim that any such future harm would be “by, or at the

instigation of, or with the consent or acquiescence of, a public official acting in an

official capacity or other person acting in an official capacity.” Id.

§ 1208.18(a)(1).

PETITION GRANTED IN PART AND DENIED IN PART;

REMANDED.

5 23-576