Jose Escamilla v. William Barr

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 7, 2020
• Docket: 17-72725
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 7 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE JAVIER ESCAMILLA, AKA Jose No. 17-72725 Escamilla Amaya, AKA Julio Gonzalez, AKA Jose Salcido, Agency No. A070-534-851

Petitioner, MEMORANDUM* v.

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted May 5, 2020** Pasadena, California

Before: M. SMITH, BADE, and BRESS, Circuit Judges.

Jose Escamilla petitions for review of a decision by the Board of Immigration

Appeals (BIA) dismissing his appeal and affirming the immigration judge’s

determination that Escamilla is ineligible for asylum and withholding of removal.

* 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 have jurisdiction under 8 U.S.C. § 1252 to review exhausted challenges to a final

order of removal. We deny the petition in part and dismiss in part.

We review denials of asylum and withholding of removal “for substantial

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

Ling Huang v. Holder, 744 F.3d 1149, 1152 (9th Cir. 2014)). “Under the substantial

evidence standard, the court upholds the BIA’s determination unless the evidence in

the record compels a contrary conclusion.” Arteaga v. Mukasey, 511 F.3d 940, 944

(9th Cir. 2007). We review the BIA’s legal determinations de novo. Edu v. Holder,

624 F.3d 1137, 1142 (9th Cir. 2010).

As relevant here, the Immigration and Nationality Act allows asylum and

withholding of removal to be granted to an alien who proves, among other things,

“membership in a particular social group.” See 8 U.S.C. §§ 1101(a)(42)(A),

1158(b)(1)(A), 1231(b)(3)(A). To demonstrate membership in such a group, an

alien must show, among other things, that the group is “socially distinct within the

society in question.” Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (quoting

Matter of M–E–V–G–, 26 I. & N. Dec. 227, 237 (BIA 2014)). Social distinction

may be shown by evidence that the proposed group’s shared characteristic would

“generally be recognizable by other members of the community,” or evidence that

“members of the proposed group would be perceived as a group by society.” Id. at

1136 (quoting Henriquez-Rivas v. Holder, 707 F.3d 1081, 1088–89 (9th Cir. 2013)

2 (en banc)).

Substantial evidence supports the BIA’s determination that Escamilla’s

proposed group—individuals who have witnessed and reported gang violence to law

enforcement—is not socially distinct in Salvadoran society. In Conde Quevedo v.

Barr, 947 F.3d 1238 (9th Cir. 2020), we held that substantial evidence supported the

BIA’s determination that the proposed social group of Guatemalans who “report the

criminal activity of gangs to the police” was not socially distinct. Id. at 1243. As in

Conde Quevedo, there is no evidence here that Salvadoran society “recognizes those

who, without more, report gang violence as a distinct group”; that any Salvadoran

“law or program protect[s] those who, without more, make police reports”; or that

Escamilla had any involvement with law enforcement beyond reporting a shooting

he observed while walking home. Id. (emphasis omitted).

Our decision in Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en

banc), does not require a different conclusion. In Henriquez-Rivas, we held that a

proposed group of “people who testified against gang members” in El Salvador was

socially distinct, relying on a special witness protection law for those who testify in

court. Id. at 1091–93 (emphasis added). Escamilla’s proposed social group sweeps

much more broadly. Escamilla points to no evidence that individuals who report

crimes have the same unique status and profile in Salvadoran society as witnesses in

court proceedings, so Henriquez-Rivas is not a basis to disturb the BIA’s denial of

3 relief. See Conde Quevedo, 947 F.3d at 1243 (“Petitioner’s proposed social group

differs from the group proposed by the petitioner in Henriquez-Rivas.”).

Escamilla also argues his proposed social group is cognizable under the

United Nations High Commissioner for Refugees Guidelines on International

Protections and as a family-based group. Because these arguments were not

presented to the BIA, we lack jurisdiction to consider them. 8 U.S.C. § 1252(d)(1);

Sola v. Holder, 720 F.3d 1134, 1135 (9th Cir. 2013).

PETITION DENIED IN PART AND DISMISSED IN PART.