Lopez v. McHenry

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 23, 2025
• Docket: 23-1286
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 23 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

EDWIN ALFREDO LOPEZ, No. 23-1286 Agency No. Petitioner, A075-641-805 v. MEMORANDUM* JAMES R. MCHENRY III, Acting Attorney General,

Respondent.

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

Submitted January 13, 2025** Pasadena, California

Before: TASHIMA, RAWLINSON, and M. SMITH, Circuit Judges.

Edwin Alfredo Lopez (Alfredo Lopez) is a native and citizen of El Salvador.

He petitions for review of a Board of Immigration Appeals (BIA) decision

dismissing his appeal of the denial of his application for asylum, withholding of

* 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). removal, and relief under the Convention Against Torture (CAT). We have

jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition.

“Our review is limited to the BIA’s decision, except to the extent that the

[Immigration Judge’s] opinion is expressly adopted. We review questions of law

de novo. We review factual findings under the substantial evidence standard.

Under this standard, a factual finding is not supported by substantial evidence

when any reasonable adjudicator would be compelled to conclude to the contrary

based on the evidence in the record.” Singh v. Garland, 97 F.4th 597, 602–03 (9th

Cir. 2024) (citations, alterations, and internal quotation marks omitted).

1. Substantial evidence supports the BIA’s denial of asylum and

withholding of removal. Alfredo Lopez’s proposed particular social group (PSG)

of “witnesses to gang violence” is not cognizable under our precedent. See, e.g.,

Conde Quevedo v. Barr, 947 F.3d 1238, 1243 (9th Cir. 2020) (concluding that

petitioner’s PSG of “persons who report the criminal activity of gangs to the

police” was not cognizable) (internal quotation marks omitted). Alfredo Lopez

could not establish a cognizable PSG based on having witnessed a murder

committed by gang members, without more. See Nguyen v. Barr, 983 F.3d 1099,

1104 (9th Cir. 2020) (affirming BIA’s denial of petitioner’s applications for

asylum and withholding of removal when petitioner failed to establish a cognizable

PSG).

2 23-1286 2. Substantial evidence also supports the BIA’s denial of CAT relief. To be

eligible for CAT protection, an applicant must establish that “it is more likely than

not that he or she would be tortured if removed.” Colin-Villavicencio v. Garland,

108 F.4th 1103, 1115 (9th Cir. 2024) (citation omitted). “Torture . . . must be

inflicted by, or at the instigation of, or with the consent or acquiescence of, a

public official acting in an official capacity . . .” Id. (citation and internal quotation

marks omitted). Under our precedent, evidence of threats and one physical attack

by gang members does not establish a particularized risk of torture. See

Tzompantzi-Salazar v. Garland, 32 F.4th 696, 706–07 (9th Cir. 2022). The

generalized country conditions evidence from El Salvador does not compel the

conclusion that future torture is likely to occur with the consent or acquiescence of

a Salvadoran government official. See Colin-Villavicencio, 108 F.4th at 1115

(noting that “a government does not acquiesce in the torture of its citizens merely

because it is aware of torture but powerless to stop it”) (citation and alteration

omitted).

PETITION DENIED.1

1 The stay of removal will remain in place until the mandate issues. The motion for stay of removal is otherwise denied.

3 23-1286