Melgar Velasquez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 15, 2023
• Docket: 21-1131
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 15 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARVIN MELGAR-VELASQUEZ, No. 21-1131

Petitioner, Agency No. A088-761-264

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

Respondent.

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

Submitted December 13, 2023** Pasadena, California

Before: WALLACH,*** CHRISTEN, and OWENS, Circuit Judges.

* 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 Evan J. Wallach, United States Circuit Judge for the U.S. Court of Appeals for the Federal Circuit, sitting by designation. Petitioner-Appellant Marvin Melgar-Velasquez (“Petitioner”), a native and

citizen of Guatemala, applied for cancellation of removal, asylum, withholding of

removal, relief under the Convention Against Torture (“CAT”), and voluntary

departure. The Immigration Judge (“IJ”) denied all his requested relief. Petitioner

appealed to the Board of Immigration Appeals (“Board”) the IJ’s denial of

cancellation of removal, asylum, and withholding of removal, but not the IJ’s

denial of relief under CAT. The Board adopted, supplemented, and affirmed the

IJ’s decision.

Petitioner timely seeks our review only of the denial of withholding of

removal and relief under CAT. We have jurisdiction under 8 U.S.C. § 1252, and

we deny the petition.

1. Regarding CAT, we decline to consider Petitioner’s substantive

arguments against the IJ’s denial of relief under CAT because Petitioner failed to

exhaust his arguments regarding CAT before the Board as required by 8 U.S.C.

§ 1252(d)(1). “Failure to raise an issue in an appeal to the [Board] constitutes a

failure to exhaust remedies with respect to that question” under 8 U.S.C.

§ 1252(d)(1). Zara v. Ashcroft, 383 F.3d 927, 930 (9th Cir. 2004) (cleaned up),

abrogated in part by Santos-Zacaria v. Garland, 598 U.S. 411, 419 (2023); see also

Bare v. Barr, 975 F.3d 952, 960 (9th Cir. 2020) (noting exhaustion requires the

Board to have had sufficient notice as to what is being challenged that it has the

2 opportunity to “pass on this issue” (citation omitted)). The Supreme Court recently

held that Section 1252(d)(1)’s limitation of the ability of appeals courts to consider

argument for non-exhausted issues is not jurisdictional, but is rather a claim-

processing rule. Santos-Zacaria, 598 U.S. at 419. We have enforced Section

1252(d)(1) as a mandatory claim-processing rule where lack of exhaustion before

the Board is properly raised on appeal. See Umana-Escobar v. Garland, 69 F.4th

544, 550 (9th Cir. 2023) (“A claim-processing rule may be ‘mandatory’ in the

sense that a court must enforce the rule if a party properly raises it.” (quoting Fort

Bend County, Texas v. Davis, 587 U.S. ----, 139 S. Ct. 1843, 1849 (2019))). The

Board found on administrative appeal that Petitioner had abandoned his

substantive arguments against the IJ’s adverse CAT determination, and before us

the government has properly raised Petitioner’s failure to exhaust his argument

against the IJ’s CAT denial. Petitioner does not contest the Board’s abandonment

finding on appeal. We therefore enforce the rule in Section 1252(d)(1) and decline

to review the substantive merits of Petitioner’s eligibility for relief under CAT.

2. Regarding withholding of removal, the Board did not err in affirming the

IJ’s denial because there is substantial evidence that the asserted particular social

group (“PSG”) is not defined with particularity. We review the Board’s factual

findings for substantial evidence. 8 U.S.C. § 1252(b)(4)(B); Umana-Escobar,

69 F.4th at 550. Particularity is a required characteristic of a claimed PSG to

3 establish a claim for withholding of removal on account of membership in a PSG.

Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237–38 (BIA 2014). Particularity

requires characteristics that “provide a clear benchmark for determining who falls

within the group,” and that “the relevant society must have a ‘commonly accepted

definition’ of the group.” Nguyen v. Barr, 983 F.3d 1099, 1103 (9th Cir. 2020)

(quoting Matter of W-G-R-, 26 I. & N. Dec. 208, 214 (BIA 2014)). Particularity

“is relevant in considering whether a group’s boundaries are so amorphous that, in

practice, the persecutor does not consider it a group.” Henriquez-Rivas v. Holder,

707 F.3d 1081, 1091 (9th Cir. 2013) (en banc). “The ultimate question is whether

a group can accurately be described in a manner sufficiently distinct that the group

would be recognized, in the society in question, as a discrete class of persons.” Id.

(cleaned up).

The Board determined Petitioner’s asserted PSG of “Guatemalan males who

relentless[ly] resist gang recruitment and violence” lacks particularity because it is

amorphous and overbroad. We agree.

Petitioner argues that his asserted PSG is not too amorphous because

members are easily identified by their actions in the face of gang harassment,

extortion, or other violence, by persecution when they resist recruitment, and by

their “unrelenting defiance.” We disagree because, just like the “young men in El

Salvador resisting gang violence” in Santos-Lemus v. Mukasey, Petitioner’s

4 asserted PSG is “not limited to [] men who have been recruited by gangs, but also

includes any [] men who for any reason resist gang violence and intimidation” and

“is composed of a variety of different individuals who may be victims of civil

unrest, but who do not form a cohesive or particular social group.” 542 F.3d 738,

746 (9th Cir. 2008) (holding the “proposed group includes a sweeping

demographic division . . . [and] is too broad and diverse to qualify as a particular

social group”), abrogated on other grounds by Henriquez-Rivas, 707 F.3d at 1093.

Petitioner’s asserted PSG is no less sweeping a demographic division nor less

broad and diverse than that in Santos-Lemus.

Therefore, there is substantial evidence for the Board’s conclusion, and we

affirm denial of withholding of removal.

PETITION DENIED.