Juan Lopez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 30, 2023
• Docket: 21-70509
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 30 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JUAN ANTONIO LOPEZ, AKA Posadas No. 20-70386 Lopez, 21-70509

Petitioner, Agency No. A095-007-483

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted August 25, 2023** Pasadena, California

Before: BERZON, RAWLINSON, and BRESS, Circuit Judges.

Juan Lopez (“Lopez”), a native and citizen of El Salvador, petitions for

review of a Board of Immigration Appeals (“BIA”) decision affirming the

immigration judge’s (“IJ”) order denying his applications for asylum, withholding

* 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). of removal, and protection under the Convention Against Torture (“CAT”). Lopez

also petitions for review of the BIA’s order denying his motion to reopen removal

proceedings. We deny both petitions.

Where, as here, the BIA adopts the opinion of the IJ and adds its own

reasoning, we review both decisions. See Nuru v. Gonzales, 404 F.3d 1207, 1215

(9th Cir. 2005). “We examine the BIA’s ‘legal conclusions de novo and its factual

findings for substantial evidence.’” Garcia v. Wilkinson, 988 F.3d 1136, 1142 (9th

Cir. 2021) (quoting Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir.

2017) (en banc)).

1. Lopez does not challenge the BIA’s determination that he waived any

challenge to the IJ’s finding that his asylum application was untimely filed.

Because he did not raise the issue in his opening brief on appeal, any challenge

before us regarding the BIA’s determination is waived. See Lopez-Vasquez v.

Holder, 706 F.3d 1072, 1079–80 (9th Cir. 2013). We decline to consider Lopez’s

arguments regarding the merits of his claim for asylum because the timeliness

determination is dispositive. See 8 U.S.C. § 1158(a)(2)(B).

2. Substantial evidence supports the BIA’s determination that Lopez failed

to establish eligibility for withholding of removal based on membership in his

proposed particular social group, “Salvadorian national[s] who [believe they] will

be targeted for kidnapping, extortion, and torture for refusing to join the ‘Mara 18’

2 gang and having escaped their threats.”

Lopez asserts that the BIA erred when it deemed his proposed social group

non-cognizable because the agency incorrectly relied on a now-vacated BIA

decision to conclude that “a particular social group for immigration purposes

cannot be determined by the persecution of its members.” See Matter of A-B-, 27

I. & N. Dec. 316, 335 (A.G. 2018), vacated by Matter of A-B-, 28 I. & N. Dec. 307

(A.G. 2021)); see also Diaz-Reynoso v. Barr, 968 F.3d 1070, 1086 (9th Cir. 2020).

But the BIA did not rely solely on the circularity of Lopez’s proposed group

definition to conclude the group is non-cognizable. The BIA also adopted the IJ’s

conclusion that the group is not socially distinct. See Reyes v. Lynch, 842 F.3d

1125, 1131 (9th Cir. 2016). In so holding, the BIA and IJ relied on prior cases and

BIA opinions which have considered nearly identically defined groups and found

them non-cognizable because they “would not be ‘perceived as a group’ by

society.” Matter of S-E-G-, 24 I. & N. Dec. 579, 588 (BIA 2008) (proposed social

group of Salvadoran youth who had resisted gang recruitment efforts not socially

distinct); see also Santos-Lemus v. Mukasey, 542 F.3d 738, 745–46 (9th Cir. 2008)

(same), abrogated in part on other grounds by Henriquez-Rivas v. Holder, 707

F.3d 1081 (9th Cir. 2013) (en banc); Barrios v. Holder, 581 F.3d 849, 854–55 (9th

Cir. 2009) (Guatemalan youth who resisted gang recruitment not cognizable as a

particular social group), abrogated in part on other grounds by Henriquez-Rivas,

3 707 F.3d 1081; Ramos-Lopez v. Holder, 563 F.3d 855, 861–62 (9th Cir. 2009)

(young Honduran men who resisted gang recruitment not cognizable as a particular

social group), abrogated in part on other grounds by Henriquez-Rivas, 707 F.3d

1081.

Substantial evidence supports the BIA’s conclusion. Lopez did not provide

any evidence to distinguish his proposed particular social group from those deemed

non-cognizable by our caselaw. No evidence in the record demonstrates that

Salvadoran society perceives as a group those who fear being targeted by gangs for

having resisted their recruitment efforts.

3. The BIA errs as a matter of law when it construes a “properly raised and

briefed CAT claim as abandoned.” Doissaint v. Mukasey, 538 F.3d 1167, 1170

(9th Cir. 2008). Reviewing Lopez’s allegations of legal error de novo, see id., we

conclude that the BIA did not err when it determined that Lopez waived any

challenge to the IJ’s denial of CAT relief.

Lopez’s Notice of Appeal, filed while he was self-represented, did not

meaningfully raise the CAT issue before the BIA.1 Lopez’s Notice generally

asserted that the IJ “erred as a matter of law and abused her discretion in denying

his applications” and “did not fully consider the facts and supporting evidence of

1 As the BIA notes, although Lopez indicated in his Notice of Appeal that he intended to file a separate brief in support of the appeal, he did not do so.

4 his case when she denied his applications.” But the Notice did not point to any

specific error in the IJ’s decision that affected the determination of his CAT claim,

nor to any evidence that would support the claim. See, e.g., Alanniz v. Barr, 924

F.3d 1061, 1068–69 (9th Cir. 2019) (petitioner “did not argue that he was entitled

to relief under the CAT” and did not produce “any evidence of past torture”).

“[B]road statements” in a notice of appeal are not sufficient to put the BIA on

notice of a petitioner’s claim. See Segura v. Holder, 605 F.3d 1063, 1066 (9th Cir.

2010). Even construed liberally, Lopez’s general statements did not put the BIA

on notice of any cognizable challenge regarding his CAT claim.

4. Lopez did not include any challenge to the BIA’s denial of his motion to

reopen removal proceedings in his briefing to this Court. We therefore deny the

petition in No. 21-70509. See Lopez-Vasquez, 706 F.3d at 1079–80.

For the foregoing reasons, the petitions for review are DENIED.