Leiva v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 1, 2024
• Docket: 22-1515
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 1 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

CARLOS GILBERTO LEIVA, No. 22-1515 Agency No. Petitioner, A095-718-507 v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted March 28, 2024** Pasadena, California

Before: GRABER, IKUTA, and FORREST, Circuit Judges.

Petitioner Carlos Gilberto Leiva, a native and citizen of El Salvador, seeks

review of the Board of Immigration Appeals’ decision affirming the immigration

judge’s denial of his applications for asylum, withholding of removal, and protection

* 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). under the Convention Against Torture (CAT). We have jurisdiction over this timely

petition for review under 28 U.S.C. § 1252(a), and we review the agency’s factual

findings for substantial evidence and its legal conclusions de novo. Plancarte

Sauceda v. Garland, 23 F.4th 824, 831 (9th Cir. 2022). Under the substantial

evidence standard, we will reverse a factual finding only if the evidence “compels a

contrary conclusion.” Afriyie v. Holder, 613 F.3d 924, 931 (9th Cir. 2010), overruled

on other grounds by Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (9th Cir. 2017)

(en banc). We deny the petition for review.

1. Asylum and Withholding. Asylum applicants must establish “a well-

founded fear of persecution on account of race, religion, nationality, membership in

a particular social group, or political opinion.” Singh v. Garland, 57 F.4th 643, 652

(9th Cir. 2023) (citations and internal quotation marks omitted). An applicant must

demonstrate “both a subjective fear of future persecution, as well as an objectively

‘reasonable possibility’ of persecution upon return to the country in question.”

Duran-Rodriguez v. Barr, 918 F.3d 1025, 1029 (9th Cir. 2019) (quoting Recinos De

Leon v. Gonzales, 400 F.3d 1185, 1190 (9th Cir. 2005)).

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

of removal because Leiva failed to show an objectively reasonable possibility of

future harm on account of his membership in a proposed particular social group of

former gang members who have publicly spoken out against gang membership and

2 22-1515 violence. A particular social group is one “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.” Villegas Sanchez v. Garland, 990

F.3d 1173, 1180 (9th Cir. 2021) (citations and internal quotation marks omitted).

Leiva’s proposed group is not cognizable. In the context of actual gang membership,

“the category of non-associated or disaffiliated persons . . . is far too unspecific and

amorphous to be called a social group.” Arteaga v. Mukasey, 511 F.3d 940, 946 (9th

Cir. 2007). Likewise, publicly speaking out describes a range of conduct so broad it

fails to “provide a clear benchmark for determining who falls within the group.”

Nguyen v. Barr, 983 F.3d 1099, 1103 (9th Cir. 2020) (citation omitted). Because

Leiva failed to show that a protected ground would be “a reason” or “one central

reason” for harm, the agency properly denied asylum and withholding of removal.

Umana-Escobar v. Garland, 69 F.4th 544, 551 (9th Cir. 2023).

Substantial evidence also supports the agency’s alternative conclusion that,

even if the proposed social group were cognizable, Leiva failed to show that the

Salvadoran authorities will recognize him as a gang member. Leiva’s major gang

tattoos are on his chest and back, and he did not produce any evidence that authorities

randomly search for gang-related tattoos under people’s clothing. The agency

reasonably concluded that authorities were unlikely to notice the “faint” tattoo “on

his left elbow area,” especially because Leiva has no “other outwardly apparent

3 22-1515 identifying features of Salvadoran gang members that would make him identifiable

by the authorities.” Additionally, Leiva’s brother—also a former gang member with

a gang-related tattoo on his chest—has lived in El Salvador without harm for more

than a decade. See Santos-Lemus v. Mukasey, 542 F.3d 738, 743 (9th Cir. 2008)

(“We have considered the continuing safety of family members to be an important

factor in determining whether a petitioner has a well-founded fear of future

persecution.”), overruled in part on other grounds by Henriquez-Rivas v. Holder,

707 F.3d 1081, 1093 (9th Cir. 2013) (en banc). Moreover, unlike the petitioner in

Henriquez-Rivas, Leiva did not testify against gang members in open court or speak

about gang members in an analogous way. See Henriquez-Rivas, 707 F.3d at 1092.

Because Leiva fails to qualify for asylum by showing a “‘reasonable

possibility’ of future persecution,” he “necessarily fails to satisfy the more stringent

standard for withholding of removal.” Silva v. Garland, 993 F.3d 705, 719 (9th Cir.

2021) (quoting Mansour v. Ashcroft, 390 F.3d 667, 673 (9th Cir. 2004)).

2. CAT. We also deny the petition for review as to CAT relief because

Leiva failed to show that it is “more likely than not that he . . . would be tortured if

removed” to El Salvador. 8 C.F.R. § 208.16(c)(2). Torture is “more severe than

persecution,” Davila v. Barr, 968 F.3d 1136, 1144 (9th Cir. 2020) (citation omitted),

and the record does not compel the conclusion that Leiva will be tortured if he is

returned to El Salvador.

4 22-1515 PETITION DENIED.

5 22-1515