Garcia Diaz v. Garland

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 6 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARCO GARCIA DIAZ, No. 22-915 Agency No. Petitioner, A205-056-561 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted December 4, 2023** Pasadena, California

Before: CALLAHAN, R. NELSON, and BADE, Circuit Judges.

Marco Garcia Diaz (“Petitioner”) is a native and citizen of El Salvador. He

petitions for review of a final order of removal issued by the Board of Immigration

Appeals (“BIA”). The BIA affirmed the Immigration Judge’s (“IJ”) denial of

* 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). Petitioner’s applications for cancellation of removal, withholding of removal, and

protection under the Convention Against Torture (“CAT”) implementing

regulations.1 We have jurisdiction under 8 U.S.C. § 1252. We review the agency’s

legal conclusions de novo and its factual findings for substantial evidence. See

Davila v. Barr, 968 F.3d 1136, 1141 (9th Cir. 2020). We are precluded from

reviewing a judgment denying cancellation of removal unless there is a colorable

constitutional or legal question. See 8 U.S.C. §§ 1252(a)(2)(B)(i), (D); Patel v.

Garland, 596 U.S. 328, 331, 347 (2022). We deny the petition.

1. Petitioner seeks review of the BIA’s denial of his application for

cancellation of removal. But Petitioner challenges only the factual determination

that he did not demonstrate the required ten years of continuous physical presence

needed for relief; he does not raise a legal or constitutional issue. Thus, we lack the

jurisdiction to review the denial of cancellation of removal. See 8 U.S.C.

§§ 1252(a)(2)(B)(i), (D); Patel, 596 U.S. at 331, 347.

2. The BIA’s denial of Petitioner’s claim for withholding of removal is

supported by substantial evidence. To qualify for withholding of removal, the

applicant must demonstrate that his “life or freedom would be threatened” in the

country of removal on account of a protected ground. 8 U.S.C. § 1231(b)(3)(A);

1 The IJ also denied Petitioner’s application for asylum, but Petitioner did not contest that finding in his appeal to the BIA, or in his petition for review before this court.

2 22-915 Davila, 968 F.3d at 1142 (citations omitted). The applicant must show that a

protected ground is “a reason” for the claimed fear of persecution. Barajas-Romero

v. Lynch, 846 F.3d 351, 359–60 (9th Cir. 2017). Petitioner asserts that the MS-13

gang would target him because of his membership in a particular social group

comprised of “Salvadoran males targeted for resisting gang recruitment.” But we

have rejected similar proposed particular social groups. See Barrios v. Holder, 581

F.3d 849, 854–55 (9th Cir. 2009) (rejecting a proposed particular social group of

“young men in Guatemala who resist gang recruitment”), abrogated in part on other

grounds, Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013); Ramos-Lopez

v. Holder, 563 F.3d 855, 861–62 (9th Cir. 2009) (rejecting a proposed social group

of “young Honduran men who have been recruited by the MS-13, but who refused

to join”), abrogated in part on other grounds, Henriquez-Rivas, 707 F.3d 1081.

Thus, substantial evidence supports the BIA’s determination that Petitioner failed to

demonstrate that a protected ground is “a reason” for the claimed fear of persecution.

Barajas-Romero, 846 F.3d at 359–60.

3. The BIA’s denial of CAT relief was also supported by substantial evidence.

To establish entitlement to CAT protection, the applicant must show 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). The torture must be “inflicted by, or at the

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

3 22-915 official capacity or other person acting in an official capacity.” Id. § 1208.18(a)(1).

Petitioner alleged that the authorities were corrupt, but he did not provide additional

evidence to indicate that the gang members he feared cooperated with law

enforcement or that law enforcement officials were complicit in gang violence. See

generally B.R. v. Garland, 26 F.4th 827, 844–45 (9th Cir. 2022). In fact, the country

condition evidence Petitioner provided suggests that the government is making

efforts to curb gang-related violence. The BIA’s conclusion that Petitioner did not

show that the Salvadoran government would acquiesce to the feared torture is

supported by substantial evidence.

The petition for review is DENIED.

4 22-915