NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 18 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
HAYDEE ALICIA LEZAMA- No. 22-864 MEJIA; JEICER JASSIR RAMOS- Agency Nos. LEZAMA; and CARLOS EMANUEL A201-499-406 RAMOS-LEZAMA, A201-499-407 A201-499-408 Petitioners,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted November 16, 2023 San Jose, California
Before: MURGUIA, Chief Judge, and PAEZ and FRIEDLAND, Circuit Judges.
Haydee Lezama-Mejia and her two derivative applicant children, Jeicer
Ramos-Lezama (JRL), and Carlos Ramos-Lezama (CRL) (together, Petitioners)
petition for review of the Board of Immigration Appeals (BIA) dismissal of their
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. appeal of an Immigration Judge’s (IJ) decision denying their applications for
asylum, withholding of removal, and for protection under the Convention Against
Torture (CAT). Petitioners are natives and citizens of Honduras.
We have jurisdiction under 8 U.S.C. § 1252(a)(1). Our review is “limited to
the BIA’s decision except where the IJ’s opinion is expressly adopted.” Plancarte
Sauceda v. Garland, 23 F.4th 824, 831 (9th Cir. 2022). We review for substantial
evidence the agency’s factual findings, and we review de novo questions of law.
Flores-Rodriguez v. Garland, 8 F.4th 1108, 1113 (9th Cir. 2021). “Whether a
group constitutes a ‘particular social group’ is a question of law,” which is
reviewed de novo. Cordoba v. Barr, 962 F.3d 479, 482 (9th Cir. 2020) (internal
quotation marks omitted) (quoting Pirir-Boc v. Holder, 750 F.3d 1077, 1081 (9th
Cir. 2014)).
Petitioners raise four separate arguments. First, JRL argues that the BIA
erred when it found that his proposed particular social groups of “Honduran youth”
and “Honduran school children” were not cognizable. Second, Lezama-Mejia and
CRL contend that the BIA erred when it determined that they had not suffered past
persecution or established a well-founded fear of future persecution based on their
membership in the proposed family-based social group of “Family Members of
Jeicer J. Lezama-Ramos.” Third, Petitioners contend that the BIA erred when it
determined that they had not suffered past persecution or established a well-
2 22-864 founded fear of future persecution on account of their imputed anti-gang political
opinion. Fourth, Petitioners argue that the BIA erred when it determined that they
were not eligible for CAT relief.
We address each argument in turn. We grant the petition for review as to
JRL’s asylum and withholding of removal claims and remand those claims to the
BIA. We deny the petition for review as to Lezama-Mejia and CRL.
1. Youth-Based Particular Social Groups. An applicant for asylum and
withholding of removal bears the burden of establishing eligibility for such relief.
8 U.S.C. §§ 1158(b)(1)(B)(i), 1229a(c)(4)(A). See Baghdasaryan v. Holder, 592
F.3d 1018, 1023 (9th Cir. 2010); see also 8 U.S.C. §§ 1101(a)(42)(A),
1231(b)(3)(A). “Both asylum and withholding depend on a finding that the
applicant was harmed, or threatened with harm, on account of a protected ground.
One such ground is that the applicant is a member of a particular social group.”
Plancarte Sauceda, 23 F.4th at 833. The BIA has previously interpreted the phrase
“particular social group” to refer to a 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.” Matter of M-E-V-G-, 26 I. & N.
Dec. 227, 237 (B.I.A. 2014); see also Reyes v. Lynch, 842 F.3d 1125, 1131 (9th
Cir. 2016).
3 22-864 The BIA has defined “immutable” to mean a characteristic “‘that the
members of the group either cannot change, or should not be required to change
because it is fundamental to their individual identities or consciences.’” Matter of
W-G-R-, 26 I. & N. Dec. 208, 212 (B.I.A. 2014) (quoting Matter of Acosta, 19 I. &
N. Dec. 211, 233 (B.I.A. 1985)); see also Plancarte Sauceda, 23 F.4th at 833.
Particularity requires that a proposed social group be “discrete” and possess
“definable boundaries.” Diaz-Reynoso v. Barr, 968 F.3d 1070, 1077 (9th Cir.
2020) (quoting Matter of M-E-V-G-, 26 I. & N. Dec. at 239).
The BIA has further explained that the social distinction requirement
“‘refers to social recognition’ and requires that a group ‘be perceived as a group by
society.’” Rios v. Lynch, 807 F.3d 1123, 1127 (9th Cir. 2015) (quoting Matter of
M-E-V-G-, 26 I. & N. Dec. at 240). “[D]etermining whether a proposed social
group is cognizable necessarily involves ‘case-by-case determination[s] as to
whether the group is recognized by the particular society in question.’” Vasquez-
Rodriguez v. Garland, 7 F.4th 888, 897 (9th Cir. 2021) (second alteration in
original) (quoting Pirir-Boc, 750 F.3d at 1084). “The BIA’s conclusion regarding
social distinction—whether there is evidence that a specific society recognizes a
social group—is a question of fact that we review for substantial evidence.”
Conde Quevedo v. Barr, 947 F.3d 1238, 1242 (9th Cir. 2020).
4 22-864 Here, the BIA concluded that “Honduran youth” and “Honduran school
children” were not cognizable particular social groups because they lacked
immutability, particularity, and social distinction. We consider each element in
turn.
The BIA determined that JRL’s proposed social groups lacked immutability
because “youth[,] by its very nature is a temporary state that changes over time.”
In support of this proposition, the BIA cited to Matter of S-E-G-, 24 I. & N. Dec.
579, 583 (B.I.A. 2008). But in Matter of S-E-G-, the BIA held that, while youth is
not entirely immutable, the mutability of age is “not within one’s control, and [] if
an individual has been persecuted in the past on account of an age-described
particular social group, or faces such persecution at a time when that individual’s
age places him within the group, a claim for asylum may still be cognizable.” Id.
at 583–84. Taken together, the BIA’s decisions in Matter of W-G-R- and Matter of
S-E-G- make clear that an immutable characteristic is one that members of the
group cannot change, and the BIA has recognized that an individual cannot control
or change their age. Matter of W-G-R-, 26 I. & N. Dec. at 213; Matter of S-E-G-,
24 I. & N. Dec. at 583–84. Because the BIA failed to properly consider its own
precedent regarding the cognizability of an age-described particular social group,
the basis upon which it rejected JRL’s proposed “Honduran youth” and “Honduran
5 22-864 school children” social groups was erroneous.1 See Henriquez-Rivas v. Holder,
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 18 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
HAYDEE ALICIA LEZAMA- No. 22-864 MEJIA; JEICER JASSIR RAMOS- Agency Nos. LEZAMA; and CARLOS EMANUEL A201-499-406 RAMOS-LEZAMA, A201-499-407 A201-499-408 Petitioners,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Argued and Submitted November 16, 2023 San Jose, California
Before: MURGUIA, Chief Judge, and PAEZ and FRIEDLAND, Circuit Judges.
Haydee Lezama-Mejia and her two derivative applicant children, Jeicer
Ramos-Lezama (JRL), and Carlos Ramos-Lezama (CRL) (together, Petitioners)
petition for review of the Board of Immigration Appeals (BIA) dismissal of their
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. appeal of an Immigration Judge’s (IJ) decision denying their applications for
asylum, withholding of removal, and for protection under the Convention Against
Torture (CAT). Petitioners are natives and citizens of Honduras.
We have jurisdiction under 8 U.S.C. § 1252(a)(1). Our review is “limited to
the BIA’s decision except where the IJ’s opinion is expressly adopted.” Plancarte
Sauceda v. Garland, 23 F.4th 824, 831 (9th Cir. 2022). We review for substantial
evidence the agency’s factual findings, and we review de novo questions of law.
Flores-Rodriguez v. Garland, 8 F.4th 1108, 1113 (9th Cir. 2021). “Whether a
group constitutes a ‘particular social group’ is a question of law,” which is
reviewed de novo. Cordoba v. Barr, 962 F.3d 479, 482 (9th Cir. 2020) (internal
quotation marks omitted) (quoting Pirir-Boc v. Holder, 750 F.3d 1077, 1081 (9th
Cir. 2014)).
Petitioners raise four separate arguments. First, JRL argues that the BIA
erred when it found that his proposed particular social groups of “Honduran youth”
and “Honduran school children” were not cognizable. Second, Lezama-Mejia and
CRL contend that the BIA erred when it determined that they had not suffered past
persecution or established a well-founded fear of future persecution based on their
membership in the proposed family-based social group of “Family Members of
Jeicer J. Lezama-Ramos.” Third, Petitioners contend that the BIA erred when it
determined that they had not suffered past persecution or established a well-
2 22-864 founded fear of future persecution on account of their imputed anti-gang political
opinion. Fourth, Petitioners argue that the BIA erred when it determined that they
were not eligible for CAT relief.
We address each argument in turn. We grant the petition for review as to
JRL’s asylum and withholding of removal claims and remand those claims to the
BIA. We deny the petition for review as to Lezama-Mejia and CRL.
1. Youth-Based Particular Social Groups. An applicant for asylum and
withholding of removal bears the burden of establishing eligibility for such relief.
8 U.S.C. §§ 1158(b)(1)(B)(i), 1229a(c)(4)(A). See Baghdasaryan v. Holder, 592
F.3d 1018, 1023 (9th Cir. 2010); see also 8 U.S.C. §§ 1101(a)(42)(A),
1231(b)(3)(A). “Both asylum and withholding depend on a finding that the
applicant was harmed, or threatened with harm, on account of a protected ground.
One such ground is that the applicant is a member of a particular social group.”
Plancarte Sauceda, 23 F.4th at 833. The BIA has previously interpreted the phrase
“particular social group” to refer to a 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.” Matter of M-E-V-G-, 26 I. & N.
Dec. 227, 237 (B.I.A. 2014); see also Reyes v. Lynch, 842 F.3d 1125, 1131 (9th
Cir. 2016).
3 22-864 The BIA has defined “immutable” to mean a characteristic “‘that the
members of the group either cannot change, or should not be required to change
because it is fundamental to their individual identities or consciences.’” Matter of
W-G-R-, 26 I. & N. Dec. 208, 212 (B.I.A. 2014) (quoting Matter of Acosta, 19 I. &
N. Dec. 211, 233 (B.I.A. 1985)); see also Plancarte Sauceda, 23 F.4th at 833.
Particularity requires that a proposed social group be “discrete” and possess
“definable boundaries.” Diaz-Reynoso v. Barr, 968 F.3d 1070, 1077 (9th Cir.
2020) (quoting Matter of M-E-V-G-, 26 I. & N. Dec. at 239).
The BIA has further explained that the social distinction requirement
“‘refers to social recognition’ and requires that a group ‘be perceived as a group by
society.’” Rios v. Lynch, 807 F.3d 1123, 1127 (9th Cir. 2015) (quoting Matter of
M-E-V-G-, 26 I. & N. Dec. at 240). “[D]etermining whether a proposed social
group is cognizable necessarily involves ‘case-by-case determination[s] as to
whether the group is recognized by the particular society in question.’” Vasquez-
Rodriguez v. Garland, 7 F.4th 888, 897 (9th Cir. 2021) (second alteration in
original) (quoting Pirir-Boc, 750 F.3d at 1084). “The BIA’s conclusion regarding
social distinction—whether there is evidence that a specific society recognizes a
social group—is a question of fact that we review for substantial evidence.”
Conde Quevedo v. Barr, 947 F.3d 1238, 1242 (9th Cir. 2020).
4 22-864 Here, the BIA concluded that “Honduran youth” and “Honduran school
children” were not cognizable particular social groups because they lacked
immutability, particularity, and social distinction. We consider each element in
turn.
The BIA determined that JRL’s proposed social groups lacked immutability
because “youth[,] by its very nature is a temporary state that changes over time.”
In support of this proposition, the BIA cited to Matter of S-E-G-, 24 I. & N. Dec.
579, 583 (B.I.A. 2008). But in Matter of S-E-G-, the BIA held that, while youth is
not entirely immutable, the mutability of age is “not within one’s control, and [] if
an individual has been persecuted in the past on account of an age-described
particular social group, or faces such persecution at a time when that individual’s
age places him within the group, a claim for asylum may still be cognizable.” Id.
at 583–84. Taken together, the BIA’s decisions in Matter of W-G-R- and Matter of
S-E-G- make clear that an immutable characteristic is one that members of the
group cannot change, and the BIA has recognized that an individual cannot control
or change their age. Matter of W-G-R-, 26 I. & N. Dec. at 213; Matter of S-E-G-,
24 I. & N. Dec. at 583–84. Because the BIA failed to properly consider its own
precedent regarding the cognizability of an age-described particular social group,
the basis upon which it rejected JRL’s proposed “Honduran youth” and “Honduran
5 22-864 school children” social groups was erroneous.1 See Henriquez-Rivas v. Holder,
707 F.3d 1081, 1091 (9th Cir. 2013) (en banc).
The BIA also concluded that “Honduran youth” and “Honduran school
children” lacked social distinction. The BIA determined that Petitioners had failed
to present evidence that Honduran society recognizes Honduran youth as a distinct
group. This determination was not supported by substantial evidence. The BIA’s
conclusion ignores uncontradicted record evidence that Honduran society
recognizes Honduran youth as a discrete class of persons. Country conditions
reports state that ninety percent of Hondurans surveyed reported that gangs had a
negative effect on Honduran youth, primarily due to threats and coercion to join
gangs, suggesting that Hondurans recognized “youth” as a group. Record evidence
also indicates that gangs in Honduras appear to specifically target Honduran
children as young as six years old for forcible gang recruitment, again suggesting
that Hondurans have a concept of “youth” as a group. The BIA’s failure to
consider such relevant record evidence “constitutes reversible error.” Aguilar-
Ramos v. Holder, 594 F.3d 701, 705 (9th Cir. 2010). Indeed, “[w]here the Board
does not consider all the evidence before it, either by ‘misstating the record [or]
failing to mention highly probative or potentially dispositive evidence,’ its decision
1 Because the BIA’s analysis conflated “Honduran school children” with “Honduran youth,” the agency should specifically address the cognizability of the former on remand.
6 22-864 cannot stand.” Castillo v. Barr, 980 F.3d 1278, 1283 (9th Cir. 2020) (alteration in
original) (quoting Cole v. Holder, 659 F.3d 762, 772 (9th Cir. 2011)). On this
record, substantial evidence compels the conclusion that Honduran society
recognizes Honduran youth as a distinct group of persons. Henriquez-Rivas, 707
F.3d at 1092.
By failing to address relevant record evidence and failing to analyze how
such evidence might impact whether JRL’s proposed social group was sufficiently
distinct, the BIA’s cognizability determination was insufficient under Pirir-Boc,
750 F.3d at 1084. There, we held that the BIA must engage in a “case-by-case
determination as to whether the group is recognized by the particular society in
question.” Id. In concluding that JRL’s proposed social group was not cognizable
under its precedent, the BIA failed to consider significant evidence that Honduran
society recognizes the unique vulnerability of Honduran youth to forcible gang
recruitment, as gang members target these individuals as a group.
In light of our determination that the proposed particular social group
“Honduran youth” satisfies immutability and social distinction, we remand to the
BIA to determine whether it possesses sufficient particularity to be cognizable,
and, if so, whether JRL has demonstrated past persecution or a well-founded fear
of future persecution “on account of” his membership in such a group. Perdomo v.
Holder, 611 F.3d 662, 669 (9th Cir. 2010).
7 22-864 2. Family-Based Particular Social Group. Petitioners argue that Lezama-
Mejia and CRL suffered past persecution and established a well-founded fear of
future persecution on account of their kinship to JRL. In conversations with JRL,
gang members threatened to harm Lezama-Mejia and CRL if JRL did not join their
gang. In addition, Lezama-Mejia was riding a bus when she witnessed armed men
board the bus and attempt to rob some passengers.
The BIA determined that Petitioners had not demonstrated past persecution
or a well-founded fear of future persecution on account of their kinship to JRL.
This finding is supported by substantial evidence. In connecting Lezama-Mejia
and CRL to JRL, the gang members were motivated by their desire to recruit JRL
to join their gang. No evidence compels the conclusion that the persecutor’s
threats were motivated by Lezama-Mejia and CRL’s kinship to JRL. See Barajas-
Romero v. Lynch, 846 F.3d 351, 357 (9th Cir. 2017) (explaining that “the
persecutor’s motive” is what matters for nexus).
As to the bus robbery incident, Lezama-Mejia has not shown that the robbers
“were motivated by anything other than an economic interest.” Rodriguez-Zuniga
v. Garland, 69 F.4th 1012, 1019 (9th Cir. 2023) (citation and quotation marks
omitted). It is well established that an applicant’s “desire to be free from
harassment by criminals motivated by theft . . . bears no nexus to a protected
8 22-864 ground.” Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010). We therefore
deny the petition as to Lezama-Mejia and CRL’s family membership claim.
3. Imputed Anti-Gang Political Opinion. To establish past persecution on
account of an imputed political opinion, Petitioners must show that their
persecutors believed that they held a political opinion and that they were harmed
on account of that imputed political opinion. Singh v. Holder, 764 F.3d 1153, 1159
(9th Cir. 2014). The BIA determined that Petitioners failed to meet this burden.
This decision is supported by substantial evidence. Petitioners have not provided
any evidence indicating that their persecutors believed they held an anti-gang
political opinion, or that they were mistreated due to that imputed political opinion.
Rodriguez-Zuniga, 69 F.4th at 1017. We therefore deny the petition as to
Petitioners’ imputed anti-gang political opinion claim.
4. CAT Relief. To qualify for relief under CAT, Petitioners must establish
that “it is more likely than not that [they] would be tortured if removed” to
Honduras. 8 C.F.R. § 1208.16(c)(2). The BIA concluded that Petitioners failed to
meet this burden. The BIA’s decision is supported by substantial evidence.
Torture is “more severe than persecution.” Guo v. Sessions, 897 F.3d 1208,
1217 (9th Cir. 2018) (quoting Nuru v. Gonzales, 404 F.3d 1207, 1224 (9th Cir.
2005)). Petitioners must also prove that the torture would be “inflicted by, or at the
instigation of, or with the consent or acquiescence of, a public official acting in an
9 22-864 official capacity or other person acting in an official capacity.” 8 C.F.R. §
1208.18(a)(1). Petitioners must also demonstrate that they would be subject to a
“particularized threat of torture.” Dhital v. Mukasey, 532 F.3d 1044, 1051 (9th Cir.
2008) (citation and quotation marks omitted).
Here, Petitioners argue that country conditions reports compel the
conclusion that they would be tortured, but the reports offered only provide
evidence about generalized gang violence in Honduras, not about a specific threat
to Petitioners. Because Petitioners have failed to establish that it is more likely
than not that they would be tortured if removed to Honduras, substantial evidence
supports the agency’s determination that Petitioners failed to establish that they
would experience torture if removed to Honduras. We therefore deny the petition
as to CAT relief.
Petitioners shall bear their own costs on appeal.
PETITION GRANTED IN PART; DENIED IN PART; REMANDED.
10 22-864