Julio Trujillo-Alas v. Jefferson Sessions

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 15, 2018
• Docket: 14-71156
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 15 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JULIO TRUJILLO-ALAS, No. 14-71156

Petitioner, Agency No. A087-996-266

v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Submitted February 13, 2018** San Francisco, California

Before: HAWKINS and TALLMAN, Circuit Judges, and JACK,*** District Judge.

Julio Trujillo–Alas (“Trujillo”), a native and citizen of El Salvador, petitions

for review of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal

* 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). *** The Honorable Janis Graham Jack, United States District Judge for the Southern District of Texas, sitting by designation. from an immigration judge’s order denying his applications for asylum,

withholding of removal, and protection under the Convention Against Torture

(“CAT”). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

1. We review questions of law de novo and review the BIA’s factual

findings for substantial evidence, treating them as “conclusive unless any

reasonable adjudicator would be compelled to conclude to the contrary[.]” 8

U.S.C. § 1252(b)(4)(B).

Substantial evidence supports the BIA’s denial of asylum and withholding of

removal. For those claims to succeed, Trujillo was required to establish

membership in a particular social group that “is (1) composed of members who

share a common immutable characteristic, (2) defined with particularity, and (3)

socially distinct within the society in question.” Reyes v. Lynch, 842 F.3d 1125,

1131 (9th Cir. 2016) (quoting M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014)).

Trujillo claims membership in a particular social group of “young males from El

Salvador who have been subject to persecution after refusing to join a gang and are

subject to ongoing persecution” and a group of “male students attending school in

El Salvador who oppose gang activity and have resisted gang recruitment[.]”

However, we have previously held that the refusal to join a gang does not

constitute membership in a particular social group. See Barrios v. Holder, 581

F.3d 849, 854–55 (9th Cir. 2009) (young men in Guatemala who resist gang

2 recruitment do not constitute a particular social group); Santos–Lemus v. Mukasey,

542 F.3d 738, 745–46 (9th Cir. 2008) (holding that young men in El Salvador

resisting gang violence do not constitute a particular social group), abrogated on

other grounds by Henriquez–Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en

banc). Additionally, Trujillo presented no evidence that either one of his proposed

social groups are perceived by Salvadoran society as a distinct social group.1 See

Henriquez–Rivas, 707 F.3d at 1088–91.

2. Even assuming Trujillo’s proposed social groups are cognizable, he also

failed to establish that the gang targeted him because of a protected ground. An

asylum applicant must “establish that race, religion, nationality, membership in a

particular social group, or political opinion was or will be at least one central

reason for persecuting the applicant.” 8 U.S.C. § 1158(b)(1)(B)(i). Trujillo

testified that gang members threatened to kill him because he told them he did not

want to put his life at risk by joining the gang. However, there was no evidence

that the threats were based on anything other than his refusal to join the gang.

Further, there was no evidence that Trujillo spoke out or took any action against

1 Trujillo argues the BIA failed to conduct an individualized analysis of his proposed social groups. See Pirir–Boc v. Holder, 750 F.3d 1077, 1084 (9th Cir. 2014). But the record belies that argument; instead, it shows the BIA properly considered the evidence and determined it was insufficient to show that “young males or male students who oppose gang activity or who have resisted gang recruitment are perceived, considered, or recognized by Salvadoran society to be a particular group.”

3 the gang other than refusing to join.2 See, e.g., Barrios, 581 F.3d at 856 (rejecting

argument alien was persecuted on account of a political opinion where he alleged

no facts in support of a political opinion beyond his refusal to join the gang).

Therefore, substantial evidence supports the BIA’s determination that Trujillo did

not demonstrate that his membership in the proposed groups was a central reason

for his persecution.

The BIA reasoned that Trujillo’s claim for withholding of removal failed

because his asylum claim failed. That reasoning is inconsistent with Barajas–

Romero v. Lynch, where we held that the “a reason” standard applicable to

withholding claims is “less demanding” than the “one central reason” standard

applicable to asylum claims. 846 F.3d 351, 360 (9th Cir. 2017). However, for the

reasons stated above, substantial evidence supports the BIA’s finding that Trujillo

did not establish the requisite nexus for his withholding of removal claim.

Although the BIA decided this case before Barajas-Romero, we need not remand

because the outcome would be the same under either standard.

3. Lastly, substantial evidence supports the BIA’s finding that Trujillo was

not entitled to CAT relief. To qualify for CAT relief, a petitioner must establish

2 Trujillo argues the BIA erred by not addressing his argument that his opposition to the gang rose to the level of a political opinion. But the BIA properly determined that even assuming his alleged anti-gang stance rose to the level of a political opinion, Trujillo did not “demonstrat[e] he was persecuted or has a well- founded fear of persecution on account of his actual or implied political opinion.”

4 that “it is more likely than not that he or she would be tortured if removed to the

proposed country of removal.” 8 C.F.R. § 208.16(c)(2). Denial of CAT relief is

reviewed for substantial evidence. Madrigal v. Holder, 716 F.3d 499, 503 (9th Cir.

2013) (citing Zheng v. Ashcroft, 332 F.3d 1186, 1193 (9th Cir. 2003)). Trujillo

failed to present any evidence that he would be tortured upon his return to El

Salvador, Ornelas-Chavez v. Gonzalez, 458 F.3d 1052, 1059 (9th Cir. 2006); see 8

C.F.R. § 208.18(a)(1), or that the El Salvadoran government acquiesced in any

alleged torture. See 8 C.F.R. § 208.18(a); Garcia–Milian v. Holder, 755 F.3d

1026, 1034 (9th Cir. 2014) (“Evidence that the police were aware of a particular

crime, but failed to bring the perpetrators to justice, is not in itself sufficient to

establish acquiescence in the crime. Instead, there must be evidence that the police

are unable or unwilling to oppose the crime.”); Barajas–Romero, 846 F.3d at 363

(“CAT relief is unavailable, despite a likelihood of torture, without evidence that

the police are unwilling or unable to oppose the crime, not just that they are unable

to solve it[.]”) (citation omitted). Although on one occasion he reported threats

from the gang to the police, who failed to investigate, “general ineffectiveness on

the government’s part to investigate and prevent crime [does] not suffice to show

acquiescence.” Andrade–Garcia v. Lynch, 828 F.3d 829, 836–37 (9th Cir. 2016).

Therefore, the BIA properly found that Trujillo did not qualify for CAT relief.

PETITION DENIED.