Diana Ortiz-Chavez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 22, 2019
• Docket: 17-70345
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 22 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DIANA CAROLINA ORTIZ-CHAVEZ and No. 17-70345 ESTEVEN WILFREDO MEJIA-ORTIZ, AKA Steven Wilfredo Mejia-Ortiz, Agency Nos. A206-844-778 A206-844-779 Petitioners,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General

Respondent.

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

Submitted February 13, 2019** San Francisco, California

Before: McKEOWN, W. FLETCHER, and MURGUIA, Circuit Judges.

Diana Ortiz-Chavez and her minor son, Steven Mejia-Ortiz (collectively,

“Petitioners”), petition for review of the Board of Immigration Appeals’ (“BIA”)

decision affirming the Immigration Judge’s (“IJ”) denial of their application for

* 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). asylum, withholding of removal, and protection under the Convention Against

Torture (“CAT”). Because the parties are familiar with the facts, we do not recite

them here. We have jurisdiction under 8 U.S.C. § 1252. We deny the petition.

Petitioners sought asylum and withholding of removal based on a proposed

particular social group of “Salvadorans who witness murder by gang members[,]

have been threatened with death, [and] lack police protection.” After affording

Petitioners an opportunity to submit additional evidence supporting this proposed

particular social group, the IJ concluded that Petitioners failed to demonstrate that

the group was socially distinct within Salvadoran society. The BIA dismissed the

appeal on the same basis.

Reviewing de novo this question of law, Pirir-Boc v. Holder, 750 F.3d 1077,

1081 (9th Cir. 2014), we agree that Petitioners failed to show social distinction.

We have held that a proposed particular social group of “those who testified in

court against gang members” could be sufficiently distinct—provided the

petitioner presents sufficient evidence of social distinction. Henriquez-Rivas v.

Holder, 707 F.3d 1081, 1092–93 (9th Cir. 2013) (en banc). But here, Petitioners

did not testify in court or even speak with police, and the record contains no

“evidence showing that society in general perceives, considers, or recognizes

persons sharing the particular characteristic”—i.e., witnesses to gang murder who

receive a death threat and lack police protection—“to be a group.” Matter of

2 W-G-R-, 26 I. & N. Dec. 208, 217 (BIA 2014). The BIA and IJ performed the

requisite evidence-based inquiry and correctly concluded that Ortiz-Chavez had

not shown her proposed particular social group is socially distinct. Pirir-Boc, 750

F.3d at 1084.

The BIA did not err by rejecting Petitioners’ alternative grounds for asylum

and withholding of removal. When the IJ clarified Petitioners’ claims, counsel for

Petitioners identified the particular social group discussed above as the only basis

for asylum and withholding of removal. Ortiz-Chavez also testified that she had

never belonged to or supported any political parties or student groups. The BIA

permissibly declined to consider Petitioners’ arguments, pursued for the first time

on appeal, that a different particular social group or their political opinion entitled

them to relief. Matter of J-Y-C-, 24 I. & N. Dec. 260, 261 n.1 (BIA 2007).

Substantial evidence supports the denial of Petitioners’ CAT claims. See

Yali Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017) (substantial evidence

review). The record does not support official involvement. See 8 C.F.R.

§ 1208.18(a)(1) (requiring “consent or acquiescence of a public official or other

person acting in an official capacity”). Absent this essential element of torture, the

record cannot compel the conclusion that Petitioners are eligible for CAT relief.

PETITION DENIED.