Jose Abelar-Perez v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 28, 2019
• Docket: 16-70988
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 28 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE ABELAR-PEREZ, No. 16-70988

Petitioner, Agency No. A200-822-944

v. MEMORANDUM* WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted August 7, 2019**

Before: THOMAS, Chief Judge, HAWKINS and McKEOWN, Circuit Judges.

Jose Abelar-Perez, a native and citizen of El Salvador, petitions for review

of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an

immigration judge’s decision denying his application for withholding of removal

and relief under the Convention Against Torture (“CAT”). We have jurisdiction

under 8 U.S.C. § 1252(a)(1), and we deny the petition.

* 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). We review de novo questions of law, Cerezo v. Mukasey, 512 F.3d 1163,

1166 (9th Cir. 2008), except to the extent that deference is owed to the BIA’s

interpretation of the governing statutes and regulations, Simeonov v. Ashcroft,

371 F.3d 532, 535 (9th Cir. 2004). We review for substantial evidence the

agency’s factual findings. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir.

2006).

The BIA did not err in finding that two of Abelar-Perez’s proposed social

groups—bus assistants who refuse to pay taxes to gang members and long-term

residents of the United States who return to El Salvador—are not cognizable. See

Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (in order to demonstrate

membership in a particular group, “[t]he applicant must ‘establish that the group is

(1) composed of members who share a common immutable characteristic, (2)

defined with particularity, and (3) socially distinct within the society in question’”

(quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014))); see also

Ochoa v. Gonzales, 406 F.3d 1166, 1171 (9th Cir. 2005) (business owners in

Colombia who rejected demands by narco-traffickers to participate in illegal

activity was too broad a category to qualify as a particular social group); Reyes v.

Lynch, 842 F.3d 1125, 1138-40 (9th Cir. 2016) (“deportees from the United States

to El Salvador” are not a particular social group).

2 16-70988 Substantial evidence supports the agency’s conclusion that Abelar-Perez

failed to establish he would be persecuted on account of any other protected

ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (an applicant’s

“desire to be free from harassment by criminals motivated by theft or random

violence by gang members bears no nexus to a protected ground”). Our conclusion

is not affected by the differing nexus standards applicable to asylum and

withholding of removal claims. Cf. Barajas-Romero v. Lynch, 846 F.3d 351, 360

(9th Cir. 2017) (discussing Zetino v. Holder having drawn no distinction between

the standards where there was no nexus at all to a protected ground). Thus, the

withholding claim fails.

Substantial evidence supports the agency’s denial of CAT relief because

Abelar-Perez failed to show it is more likely than not he will be tortured by or with

the consent or acquiescence of the government if returned to El Salvador. See

Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009); see also Zheng v. Holder,

644 F.3d 829, 835-36 (9th Cir. 2011) (possibility of torture too speculative);

Garcia-Milian v. Holder, 755 F.3d 1026, 1033-35 (9th Cir. 2014) (petitioner did

not establish the necessary “state action” for CAT relief). Thus, the claim for CAT

relief fails.

PETITION FOR REVIEW DENIED.

3 16-70988