Gonzalez Aguilar v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 22, 2023
• Docket: 21-1266
• Status: Unpublished

Opinion

Case: 21-1266, 02/22/2023, DktEntry: 24.1, Page 1 of 4

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 22 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

Stanley Gonzalez Aguilar, No. 21-1266

Petitioner, Agency No. A205-719-764

v. MEMORANDUM* Merrick B. Garland, U.S. Attorney General,

Respondent.

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

Submitted February 16, 2023** San Francisco, California

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

Stanley Gonzalez Aguilar, a native and citizen of El Salvador, petitions

for review of a decision of the Board of Immigration Appeals dismissing his

appeal from an order of an immigration judge pretermitting his application for

cancellation of removal and denying his applications for asylum, withholding of

removal, and protection under the Convention Against Torture. We have

* 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). Case: 21-1266, 02/22/2023, DktEntry: 24.1, Page 2 of 4

jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

1. The immigration court had jurisdiction over Gonzalez’s removal

proceeding even though Gonzalez’s notice to appear did not specify the time,

date, or location of his hearing. United States v. Bastide-Hernandez, 39 F.4th

1187, 1188 (9th Cir. 2022) (en banc).

2. The Board correctly concluded that Gonzalez’s robbery conviction

under California Penal Code section 211 is a crime involving moral turpitude.

Mendoza v. Holder, 623 F.3d 1299, 1300 (9th Cir. 2010). Gonzalez argues that

some robbery offenses are not categorically crimes involving moral turpitude

because they do not require an intent to permanently deprive the victim of his or

her property. That is not true of section 211, however, which “requires the

‘specific intent to permanently deprive’ the victim of his or her property.”

People v. Wilson, 484 P.3d 36, 67 (Cal. 2021) (quoting People v. Young, 105

P.3d 487, 502 (Cal. 2005)).

3. Substantial evidence supports the Board’s determination that Gonzalez

failed to establish that he will face persecution on the basis of his membership

in a cognizable particular social group. The record does not compel the

conclusion that perceived gang members are a distinct group in Salvadoran

society. In Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016), we upheld the

Board’s conclusion that former gang members in El Salvador were not a distinct

social group because the evidence did not compel the conclusion that former

gang members were “distinct from current gang members” or from “suspected

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gang members who face discriminatory treatment and other challenges in

Salvadoran society.” Id. at 1138. Similarly, the evidence here does not show

that perceived gang members are seen as a distinct group. Rather, the evidence

shows similar treatment in Salvadoran society for actual gang members and

even for those who have no apparent connection to gangs.

The record does not compel the conclusion that Salvadorans perceived to

oppose gangs or Salvadorans with immediate family members who are U.S.

citizens are socially distinct groups. Gonzalez has not identified evidence

demonstrating that Salvadoran society views people with those traits as distinct.

See Villegas Sanchez v. Garland, 990 F.3d 1173, 1180–81 (9th Cir. 2021)

(“[S]ocial distinction requires ‘evidence showing that society in general

perceives, considers, or recognizes persons sharing the particular characteristic

to be a group.’” (quoting Matter of W-G-R-, 26 I. & N. Dec. 208, 217 (B.I.A.

2014)).

The proposed social group of returnees to El Salvador from the United

States who have criminal records lacks particularity. That group “could include

large swaths of people and various cross-sections of a community.” Macedo

Templos v. Wilkinson, 987 F.3d 877, 882 (9th Cir. 2021). The group

encompasses individuals convicted of minor to severe offenses as well as

individuals who lived in the United States briefly and for many years.

4. Substantial evidence also supports the Board’s conclusion that

Gonzalez did not establish that he will face persecution on the basis of imputed

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political opinions. The record reveals that the Salvadoran government targets

gang members because of their criminal activity. The evidence does not compel

the conclusion that the government targets gang members because of their

political opinions. Nor does the evidence compel the conclusion that gangs

would target Gonzalez because of an imputed anti-gang political opinion. Cf.

INS v. Elias-Zacarias, 502 U.S. 478, 482–83 (1992). Contrary to Gonzalez’s

arguments, the Board appropriately evaluated the proposed particular social

groups and political opinions through a case-specific “evidence-based inquiry.”

Pirir-Boc v. Holder, 750 F.3d 1077, 1084 (9th Cir. 2014).

5. Substantial evidence supports the Board’s conclusion that Gonzalez’s

claim of future torture is speculative. Gonzalez cites evidence that Salvadoran

police have in some cases arrested people who have not committed gang

violence simply because of their tattoos. That evidence is insufficient to compel

the conclusion that police would be “more likely than not” to torture Gonzalez.

8 C.F.R. § 1208.16(c)(2).

The motions to stay removal (Dkt. Nos. 3, 9) are denied. The temporary

stay of removal is lifted.

PETITION DENIED.

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