Hernandez De Fernandez v. Bondi

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 5, 2025
• Docket: 25-1688
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 5 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARIA MARLENY HERNANDEZ DE No. 25-1688 FERNANDEZ; VIRGINIA ABIGAIL Agency Nos. FERNANDEZ-HERNANDEZ, A206-891-758 A206-891-759 Petitioners,

v. MEMORANDUM*

PAMELA BONDI, Attorney General,

Respondent.

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

Submitted December 1, 2025** Pasadena, California

Before: GOULD, BEA, and BADE, Circuit Judges.

Petitioners Maria Marleny Hernandez De Fernandez and her daughter,

Virginia Abigail Fernandez-Hernandez, natives and citizens of El Salvador,

petition for review of a decision of the Board of Immigration Appeals (“BIA”) that

* 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). dismissed their appeal from an immigration judge’s (“IJ”) denial of their

applications for asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”). We have jurisdiction to review the petition

pursuant to 8 U.S.C. § 1252(a)(1). Because the parties are familiar with the facts,

we recite them only as necessary to explain our decision.

The “substantial evidence” standard governs our review of BIA decisions

regarding claims for asylum, withholding of removal, and CAT protection.

Garcia-Milian v. Holder, 755 F.3d 1026, 1031 (9th Cir. 2014). Under that

standard, we ask whether the BIA’s decision is supported by “reasonable,

substantial, and probative evidence on the record considered as a whole.” Id.

(quotation marks and citation omitted). We must deny the petition for review

unless Petitioners can demonstrate “that the evidence not only supports, but

compels the conclusion” that the BIA’s findings and decisions are erroneous.

Plancarte Sauceda v. Garland, 23 F.4th 824, 831 (9th Cir. 2022) (quotation marks

and citation omitted) (as amended). Because Petitioners have not done so, we deny

the petition.

To establish eligibility for asylum, Petitioners must “demonstrate a

likelihood of ‘persecution or a well-founded fear of persecution on account of race,

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

opinion…’ To be eligible for withholding of removal, the petitioner must

2 25-1688 discharge this burden by a ‘clear probability.’” Sharma v. Garland, 9 F.4th 1052,

1059 (9th Cir. 2021) (first quoting 8 U.S.C. § 1101(a)(42)(A), then quoting

Alvarez-Santos v. INS, 332 F.3d 1245, 1255 (9th Cir. 2003)). For a particular

social group (“PSG”) to be cognizable, it must have “an immutable characteristic,

particularity, and social distinction.” Diaz-Reynoso v. Barr, 968 F.3d 1070, 1084

(9th Cir. 2020).

Substantial evidence supports the BIA’s denial of Petitioners’ applications

for withholding of removal and asylum because Petitioners failed to establish that

any alleged persecution was on account of a protected ground. The IJ found that

Petitioners’ proposed PSG of “Individuals Who Fear Being Targeted and

Persecuted by Dangerous Criminals and Gang Members” was not cognizable under

the INA because (1) it does not have any common immutable characteristics; (2) it

is not defined with particularity; (3) it is not socially distinct within the society in

question; and (4) it is defined exclusively by the harm inflicted upon its members.

Before the BIA, Petitioners did not make any arguments regarding immutability,

particularity, social distinction, or circularity; the BIA found that because

Petitioners had not meaningfully challenged the IJ’s conclusions, they had waived

the issue of whether their proposed PSG was cognizable; the failure to put forth a

cognizable PSG was fatal to Petitioners’ asylum and withholding of removal

claims.

3 25-1688 In their opening brief before this Court, Petitioners failed to make any

argument that the cognizability issue was not waived before the BIA. Thus, any

argument Petitioners make pertaining to the cognizability of the proposed PSG in

question is unexhausted, and the Court declines to reach the merits of this issue.

See Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013) (per curiam) (“A

petitioner’s failure to raise an issue before the BIA generally constitutes a failure to

exhaust . . . .”); Alanniz v. Barr, 924 F.3d 1061, 1069 (9th Cir. 2019) (refusing to

consider the merits of an argument when petitioner “[failed to show] that the BIA

erred in concluding that he had not challenged the IJ’s denial of relief”).

But even were the panel to review the merits of Petitioners’ arguments

regarding cognizability, Petitioners’ asylum and withholding of removal claims

would still fail because their proposed PSG is not cognizable. See Santos-Lemus v.

Mukasey, 542 F.3d 738, 746 (9th Cir. 2008), abrogated on other grounds by

Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (finding that a PSG

based on general resistance to gang violence is not cognizable); Diaz-Reynoso, 968

F.3d at 1086 (“Courts have frequently held, after proper analysis, that groups

lacking a common characteristic aside from persecution are not cognizable.”)

The BIA’s denial of CAT relief is also supported by substantial evidence. “To

qualify for CAT protection, a petitioner must show it is ‘more likely than not he or

she would be tortured if removed to the proposed country of removal.’” Sharma, 9

4 25-1688 F.4th at 1067 (quoting 8 C.F.R. § 208.16(c)(2)). Petitioners have not put forth

evidence that compels the conclusion that the BIA erred in finding they failed to

establish it was more likely than not that they would be tortured if removed to El

Salvador. See Garcia-Milian, 755 F.3d at 1033. Petitioners have not put forth any

evidence that they were subject to past torture or even physical harm, and any claim

regarding future torture is speculative. The evidence also supports the BIA’s

conclusion that Petitioners failed to demonstrate that the El Salvadoran government

would acquiesce in any future torture, even were they to establish a likelihood of

future torture. See Madrigal v. Holder, 716 F.3d 499, 509 (9th Cir. 2013).

PETITION DENIED.1

1 The temporary stay of removal remains in place until the mandate issues. The motion for a stay of removal, Dkt. 8, is otherwise denied.

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