Milvian Gonzalez-Solares v. Matthew Whitaker

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 8, 2018
• Docket: 16-72740
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 8 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MILVIAN AMPARO GONZALEZ- No. 16-72740 SOLARES; JASMIN IDALIA SOLARES GONZALEZ, Agency Nos. A206-007-059 A206-007-060 Petitioners,

v. MEMORANDUM*

MATTHEW WHITAKER, acting Attorney General,

Respondent.

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

Argued and Submitted October 18, 2018 San Francisco, California

Before: M. SMITH and HURWITZ, Circuit Judges, and EATON,** Judge.

Milvian Amparo Gonzalez-Solares (Gonzalez-Solares) and her daughter,

Jasmin Idalia Solares Gonzalez (Solares), natives and citizens of Guatemala, petition

from the decision of the Board of Immigration Appeals (BIA) affirming the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** Richard K. Eaton, Judge of the United States Court of International Trade, sitting by designation. Immigration Judge’s (IJ) denial of their I-589 Applications for asylum, withholding

of removal, and protection under the Convention Against Torture (CAT). Because

Gonzalez-Solares and Solares filed separate applications for relief, we review each

of their claims independently. We have jurisdiction under 8 U.S.C. § 1252. We

deny in part and grant in part the petition for review, and remand for further

proceedings.

1. An applicant for asylum and withholding of removal must establish that a

proposed social group has both “social distinction” and “particularity.” See Reyes

v. Lynch, 842 F.3d 1125, 1137 (9th Cir. 2016). As a recent decision by the Attorney

General made clear, “a particular social group must ‘exist independently’ of the harm

asserted in an application for asylum or statutory withholding of removal.” Matter

of A-B-, 27 I. & N. Dec. 316, 334–35 (A.G. 2018) (quoting Matter of M-E-V-G-, 26

I. & N. Dec. 227, 236 n.11, 243 (BIA 2014)).

The BIA did not err in finding that Gonzalez-Solares failed to establish

membership in a cognizable social group. See Reyes, 842 F.3d at 1131. Gonzalez-

Solares’s proposed social groups—“persons subject to extortion demands in

Guatemala” and “persons whose extended family members were killed due to their

failure to comply with extortion demands”—are characterized entirely by the harm

asserted in her asylum application. The individuals in Gonzalez-Solares’s proposed

social groups do not “share a narrowing characteristic other than their risk of being

2 persecuted.” A-B-, 26 I. & N. Dec. at 335. We therefore deny the petition as to

Gonzalez-Solares’s asylum and withholding claims.

2. A petitioner seeking asylum must also establish that membership in a

particular social group “was or will be at least one central reason for persecuting the

applicant.” 8 U.S.C. § 1158(b)(1)(B)(i). A “central reason” is one “essential to the[]

decision to act”; the persecutor “would not have harmed the applicant if such motive

did not exist.” Parussimova v. Mukasey, 555 F.3d 734, 741 (9th Cir. 2009). The

BIA did not err in finding that Solares failed to establish the required nexus between

her proposed social group—“young, single women”—and her persecution. The

record demonstrates that the suspected gang members targeted Solares not solely

because she was a single woman, but instead because they thought she had money.

Thus, we deny the petition for review as to Solares’s asylum claim.

3. Substantial evidence supports the BIA’s denial of both Petitioners’ CAT

claims. Neither Petitioner established that it is more likely than not that she would

suffer torture “inflicted by . . . or with the consent or acquiescence of a public

official.” 8 C.F.R. § 208.18(a)(1). Although Petitioners argue that the Guatemalan

government has been generally ineffective in preventing criminal activity, a

“government does not acquiesce in the torture of its citizens merely because it is

aware of torture but powerless to stop it.” Garcia-Milian v. Holder, 755 F.3d 1026,

1034 (9th Cir. 2014) (citation omitted). We deny the petition as to the CAT claims.

3 4. In denying Solares’s withholding claim, the BIA did not decide whether

her proposed social group is cognizable. The BIA instead rested its decision on the

fact that Solares’s membership in the proposed social group was not “one central

reason” for her persecution. When the IJ and BIA issued their decisions in this case,

they did not have the benefit of Barajas-Romero v. Lynch, which held that applicants

for withholding must prove only that their protected status was “a reason” for their

persecution. 846 F.3d 351, 360 (9th Cir. 2017). “‘[A] reason’ is a less demanding

standard than ‘one central reason.’” Id.

The Government argues that “the Barajas[-Romero] holding does not affect

cases in which the agency has held that a protected ground was not a reason for the

persecutor’s action.” Citing the IJ’s decision, the Government contends that

Solares’s proposed social group was unrelated to her persecution. Even assuming

the Government’s characterization of the IJ’s decision is accurate, that argument

fails. When the BIA writes an opinion affirming the IJ’s decision, we must review

the BIA’s opinion, not the IJ’s decision. See Hosseini v. Gonzales, 471 F.3d 953,

957 (9th Cir. 2006). The BIA’s decision applied the “one central reason” standard

to Solares’s withholding claim.

Thus, we grant the petition as to Solares’s withholding claim and remand to

the BIA to: (1) decide whether Solares’s proposed social group is cognizable; and

4 (2) decide whether, in light of Bajaras-Romero, her social group was “a reason” for

her persecution. See INS v. Ventura, 537 U.S. 12, 16–18 (2002) (per curiam).

PETITION FOR REVIEW DENIED in part; GRANTED in part;

REMANDED.