Ortiz Castillo v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 24, 2024
• Docket: 22-1218
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 24 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

EDUARDO ERNESTO ORTIZ CASTILLO, No. 22-1218

Petitioner, Agency No. A216-911-562

v.

MERRICK B. GARLAND, Attorney MEMORANDUM* General,

Respondent.

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

Submitted November 15, 2023** Pasadena, California

Before: PARKER,*** BYBEE, and LEE, Circuit Judges.

Eduardo Ernesto Ortiz Castillo, a native and citizen of El Salvador, seeks

review of an order by the Board of Immigration Appeals (BIA) dismissing his appeal

* 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 Barrington D. Parker Jr., United States Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation. from an Immigration Judge’s (IJ) denial of his applications for asylum, withholding

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

jurisdiction under 8 U.S.C. § 1252(a)(1), and we deny the petition.

1. Asylum. The BIA did not err by upholding the IJ’s denial of asylum.

To establish asylum eligibility, an applicant must show that he is unable or unwilling

to return to his country of nationality “because of persecution or a well-founded fear

of persecution on account of race, religion, nationality, membership in a particular

social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). Evidence of past

persecution raises a rebuttable presumption of a well-founded fear of future

persecution. Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1062 (9th Cir. 2017)

(en banc). To demonstrate past persecution, the petitioner must establish that

“(1) his treatment rises to the level of persecution; (2) the persecution was on

account of one or more protected grounds; and (3) the persecution was committed

by the government, or by forces that the government was unable or unwilling to

control.” Id. (quotation marks and citation omitted). Whether a particular social

group is cognizable is ultimately a legal question, but social distinction is a factual

issue reviewed for substantial evidence. Conde Quevedo v. Barr, 947 F.3d 1238,

1242 (9th Cir. 2020).

The BIA did not err by finding that Ortiz Castillo failed to establish

membership in a particular social group. Ortiz Castillo contends that “individuals

2 who are presumed to be gang members are socially distinct due to their treatment by

the government.” But Ortiz Castillo failed to identify meaningful evidence showing

that presumed gang members or presumed male gang members are a socially distinct

group. We have reached the same conclusion in several other parallel cases. See

Santos-Lemus v. Mukasey, 542 F.3d 738, 745-46 (9th Cir. 2008) (determining that a

proposed group of “young men in El Salvador resisting gang violence” was not

socially visible), abrogated on other grounds by Henriquez-Rivas v. Holder, 707 F.3d

1081, 1093 (9th Cir. 2013); see also Ramos-Lopez v. Holder, 563 F.3d 855, 862 (9th

Cir. 2009) (finding that Honduran men who resisted recruitment into MS-13 were not

“lacked ‘social visibility’” because there was no evidence that they were “generally

visible to society”), abrogated on other grounds by Henriquez-Rivas, 707 F.3d at

1093.

Additionally, the BIA did not err by finding that Ortiz Castillo failed to

establish that he was persecuted “on account of” either his political opinion or his

religious beliefs. 8 U.S.C. § 1101(a)(42)(A). Ortiz Castillo argues that because he

“was presumed to be a gang member, he was essentially part of a competing or

opposing government within El Salvador” and therefore “[gang] membership was

imputed to him by the Salvadoran government.” Ortiz Castillo, however, failed to

articulate what political opinion he holds—aside from a general resistance to joining

MS-13. Substantial evidence supports the fact that he was targeted by the police

3 because they thought he was a gang member, and that he was targeted by MS-13

because he refused to join their gang. For these reasons, Ortiz Castillo also failed to

establish a nexus between the harm he claims and his religious beliefs.

2. Withholding of removal. The agency did not err in denying Ortiz

Castillo’s application for withholding of removal. Withholding of removal is

available to applicants who demonstrate a “clear probability” of persecution upon

return. Singh v. Garland, 57 F.4th 643, 658 (9th Cir. 2022) (citation omitted).

“Withholding’s ‘clear probability’ standard is more stringent than asylum’s well-

founded-fear standard . . . .” Id. (citation omitted). Because Ortiz Castillo cannot

establish eligibility for asylum, he likewise cannot establish eligibility for

withholding. Id.

3. CAT. “To establish entitlement to protection under CAT, an applicant

must show ‘it is more likely than not he or she would be tortured if removed to the

proposed country of removal.’” Plancarte Sauceda v. Garland, 23 F.4th 824, 834

(9th Cir. 2022) (quoting 8 C.F.R. § 1208.16(c)(2)). “The 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 or other person acting in an official capacity.’” Id.

(quoting 8 C.F.R. § 1208.18(a)(1)).

Substantial evidence supports the agency’s denial of Ortiz Castillo’s CAT

claim on the grounds that he failed to show that “he, in particular, would more likely

4 than not face torture” upon returning to El Salvador. Tzompantzi-Salazar v. Garland,

32 F.4th 696, 706 (9th Cir. 2022). Ortiz Castillo’s country conditions evidence stated

crime and police corruption in El Salvador generally, but the evidence fails to show

that Ortiz Castillo faces “a particularized, ongoing risk of future torture.” Id. at 707;

see also Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) (per curiam)

(determining that generalized evidence of violence and crime in Mexico was not

particular to petitioners and therefore insufficient to establish CAT eligibility).

Ortiz Castillo’s CAT claim also fails to satisfy the government-acquiescence

prong. The evidence offered by Ortiz Castillo shows that the El Salvadoran

government consistently intervened to prevent torture and gang violence in the

country. Where, as here, the government “actively combats and prosecutes cartel

activity,” we are not compelled to conclude that the El Salvadoran government would

acquiesce to gang torture. B.R. v. Garland, 26 F.4th 827, 845 (9th Cir. 2022).

PETITION DENIED.