NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 8 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MERILYM PAOLA POS-SOTO, No. 25-2227 Agency No. Petitioner, A215-932-137 v.
PAMELA BONDI, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted December 4, 2025** Pasadena, California
Before: CALLAHAN and KOH, Circuit Judges, and BARKER, District Judge.***
Merilym Paola Pos-Soto, a native and citizen of Guatemala, petitions for a
review of the Board of Immigration Appeals’ (“BIA”) dismissal of her appeal of an
Immigration Judge’s (“IJ”) denial of her applications 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 previously ordered that this case be submitted on the briefs and record without oral argument. See Dkt. No. 22; Fed. R. App. P. 34(a)(2). *** The Honorable J. Campbell Barker, United States District Judge for the Eastern District of Texas, sitting by designation. removal, and protection under the Convention Against Torture (“CAT”). We have
jurisdiction under 8 U.S.C. § 1252 and deny the petition for review.
When, as here, the BIA conducts its own analysis and adopts the IJ’s
reasoning, we review both the BIA’s and IJ’s decisions. Zhi v. Holder, 751 F.3d
1088, 1091 (9th Cir. 2014). We review legal conclusions de novo and factual
determinations for substantial evidence. Id. We will grant a petition only if “the
petitioner shows that the evidence compels the conclusion that the BIA’s decision
was incorrect.” Sharma v. Garland, 9 F.4th 1052, 1060 (9th Cir. 2021) (citation
modified); see also Garland v. Ming Dai, 593 U.S. 357, 368 (2021) (“The only
question for judges reviewing the BIA’s factual determinations is whether any
reasonable adjudicator could have found as the agency did.”).
Substantial evidence supports the BIA’s determination that petitioner filed a
frivolous asylum claim. If the Attorney General finds that an alien knowingly
submitted a frivolous asylum application and the alien has received appropriate
notice, the alien becomes permanently ineligible for asylum benefits. 8 U.S.C.
§ 1158(d)(6). This finding is subject to four procedural safeguards: (1) notice to the
alien of the consequences of filing a frivolous asylum application, (2) sufficient
evidence that a material element of the application was deliberately fabricated, (3) a
specific finding that the alien knowingly filed a frivolous application, and (4) an
indication that the alien was afforded sufficient opportunity to account for any
2 25-2227 discrepancies or implausible aspects of the claim. Matter of Y-L-, 24 I. & N. Dec.
151, 155 (BIA 2007); see also Ahir v. Mukasey, 527 F.3d 912, 917 (9th Cir. 2008)
(adopting the procedural framework outlined in Matter of Y-L-).
The record demonstrates that the IJ and BIA properly applied the Matter of
Y-L- framework and that their findings are supported by substantial evidence.
Petitioner does not dispute that she received notice of the consequences for filing a
frivolous asylum application. Petitioner admitted that she was never harmed based
on her sexual orientation, presented false testimony to remain in the United States,
and she knew that testimony was false. Furthermore, despite petitioner’s proffered
explanation, the IJ found that her deception was knowing, deliberate, and material.
Petitioner’s response is that she has post-traumatic stress disorder (“PTSD”),
which prevented her fraudulent misrepresentations from being deliberate. Petitioner
appears to claim that her PTSD caused an inability to remember important aspects
of the traumatic events and distorted her cognition about the causes or consequences
of those events. Specifically, petitioner claims that she was threatened with sexual
violence that left her badly traumatized and unable to process the reasons for her
flight from Guatemala. Petitioner argues that her fabrications therefore cannot be
viewed as deliberate, premeditated, or fully considered.
Even if she has PTSD, petitioner has not shown how that condition renders
her fraudulent statements indeliberate. She does not claim that she was unable to
3 25-2227 remember why she left Guatemala, nor that she believed the fraudulent statements
to be true when she made them. Indeed, petitioner admitted to the IJ that she decided
not to tell the truth because she was afraid that telling the truth would result in her
deportation.
Petitioner also argues that she freely recanted her falsehoods when given an
opportunity to do so and never intended to pursue an asylum claim based on those
falsehoods. Petitioner posits that the false information in the asylum application was
based on a miscommunication between her and her counsel. These arguments lack
merit. First, petitioner admitted that she decided not to tell the truth because she was
afraid of being deported. Second, even if there was a miscommunication between
petitioner and her attorney, petitioner signed the application and is thus responsible
for any misrepresentations contained therein. Finally, petitioner did not freely recant
her prior statements at the first opportunity. Rather, petitioner admitted the deception
in her third declaration to the IJ—nearly nine months after filing her asylum
application.
Substantial evidence supports the BIA’s determination that petitioner
knowingly submitted a frivolous asylum application and is thus ineligible for
asylum.
Alternatively, substantial evidence supports the BIA’s finding that petitioner
is ineligible for asylum and withholding of removal because she did not identify a
4 25-2227 cognizable social group. An applicant who fears persecution on account of
membership in a particular social group (“PSG”) has the burden of identifying a
cognizable social group. Diaz-Reynoso v. Barr, 968 F.3d 1070, 1084 (9th Cir. 2020)
(“[I]t is the applicant’s burden to demonstrate the existence of a cognizable particular
social group.”). The applicant “must show that the proposed social group is (1)
composed of members who share a common immutable characteristic, (2) defined
with particularity, and (3) socially distinct within the society in question.” Conde
Quevedo v. Barr, 947 F.3d 1238, 1242 (9th Cir. 2020) (citation modified). The
particularity requirement is used in determining “whether a collection of individuals
is considered to be a particular social group” within the relevant society. Henriquez-
Rivas v. Holder, 707 F.3d 1081, 1091 (9th Cir. 2013). The social distinction
requirement refers to whether the proposed group is recognized by the relevant
society, which depends on “the perception of the society in question.” Conde
Quevedo, 947 F.3d at 1242.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 8 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MERILYM PAOLA POS-SOTO, No. 25-2227 Agency No. Petitioner, A215-932-137 v.
PAMELA BONDI, Attorney General, MEMORANDUM*
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted December 4, 2025** Pasadena, California
Before: CALLAHAN and KOH, Circuit Judges, and BARKER, District Judge.***
Merilym Paola Pos-Soto, a native and citizen of Guatemala, petitions for a
review of the Board of Immigration Appeals’ (“BIA”) dismissal of her appeal of an
Immigration Judge’s (“IJ”) denial of her applications 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 previously ordered that this case be submitted on the briefs and record without oral argument. See Dkt. No. 22; Fed. R. App. P. 34(a)(2). *** The Honorable J. Campbell Barker, United States District Judge for the Eastern District of Texas, sitting by designation. removal, and protection under the Convention Against Torture (“CAT”). We have
jurisdiction under 8 U.S.C. § 1252 and deny the petition for review.
When, as here, the BIA conducts its own analysis and adopts the IJ’s
reasoning, we review both the BIA’s and IJ’s decisions. Zhi v. Holder, 751 F.3d
1088, 1091 (9th Cir. 2014). We review legal conclusions de novo and factual
determinations for substantial evidence. Id. We will grant a petition only if “the
petitioner shows that the evidence compels the conclusion that the BIA’s decision
was incorrect.” Sharma v. Garland, 9 F.4th 1052, 1060 (9th Cir. 2021) (citation
modified); see also Garland v. Ming Dai, 593 U.S. 357, 368 (2021) (“The only
question for judges reviewing the BIA’s factual determinations is whether any
reasonable adjudicator could have found as the agency did.”).
Substantial evidence supports the BIA’s determination that petitioner filed a
frivolous asylum claim. If the Attorney General finds that an alien knowingly
submitted a frivolous asylum application and the alien has received appropriate
notice, the alien becomes permanently ineligible for asylum benefits. 8 U.S.C.
§ 1158(d)(6). This finding is subject to four procedural safeguards: (1) notice to the
alien of the consequences of filing a frivolous asylum application, (2) sufficient
evidence that a material element of the application was deliberately fabricated, (3) a
specific finding that the alien knowingly filed a frivolous application, and (4) an
indication that the alien was afforded sufficient opportunity to account for any
2 25-2227 discrepancies or implausible aspects of the claim. Matter of Y-L-, 24 I. & N. Dec.
151, 155 (BIA 2007); see also Ahir v. Mukasey, 527 F.3d 912, 917 (9th Cir. 2008)
(adopting the procedural framework outlined in Matter of Y-L-).
The record demonstrates that the IJ and BIA properly applied the Matter of
Y-L- framework and that their findings are supported by substantial evidence.
Petitioner does not dispute that she received notice of the consequences for filing a
frivolous asylum application. Petitioner admitted that she was never harmed based
on her sexual orientation, presented false testimony to remain in the United States,
and she knew that testimony was false. Furthermore, despite petitioner’s proffered
explanation, the IJ found that her deception was knowing, deliberate, and material.
Petitioner’s response is that she has post-traumatic stress disorder (“PTSD”),
which prevented her fraudulent misrepresentations from being deliberate. Petitioner
appears to claim that her PTSD caused an inability to remember important aspects
of the traumatic events and distorted her cognition about the causes or consequences
of those events. Specifically, petitioner claims that she was threatened with sexual
violence that left her badly traumatized and unable to process the reasons for her
flight from Guatemala. Petitioner argues that her fabrications therefore cannot be
viewed as deliberate, premeditated, or fully considered.
Even if she has PTSD, petitioner has not shown how that condition renders
her fraudulent statements indeliberate. She does not claim that she was unable to
3 25-2227 remember why she left Guatemala, nor that she believed the fraudulent statements
to be true when she made them. Indeed, petitioner admitted to the IJ that she decided
not to tell the truth because she was afraid that telling the truth would result in her
deportation.
Petitioner also argues that she freely recanted her falsehoods when given an
opportunity to do so and never intended to pursue an asylum claim based on those
falsehoods. Petitioner posits that the false information in the asylum application was
based on a miscommunication between her and her counsel. These arguments lack
merit. First, petitioner admitted that she decided not to tell the truth because she was
afraid of being deported. Second, even if there was a miscommunication between
petitioner and her attorney, petitioner signed the application and is thus responsible
for any misrepresentations contained therein. Finally, petitioner did not freely recant
her prior statements at the first opportunity. Rather, petitioner admitted the deception
in her third declaration to the IJ—nearly nine months after filing her asylum
application.
Substantial evidence supports the BIA’s determination that petitioner
knowingly submitted a frivolous asylum application and is thus ineligible for
asylum.
Alternatively, substantial evidence supports the BIA’s finding that petitioner
is ineligible for asylum and withholding of removal because she did not identify a
4 25-2227 cognizable social group. An applicant who fears persecution on account of
membership in a particular social group (“PSG”) has the burden of identifying a
cognizable social group. Diaz-Reynoso v. Barr, 968 F.3d 1070, 1084 (9th Cir. 2020)
(“[I]t is the applicant’s burden to demonstrate the existence of a cognizable particular
social group.”). The applicant “must show that the proposed social group is (1)
composed of members who share a common immutable characteristic, (2) defined
with particularity, and (3) socially distinct within the society in question.” Conde
Quevedo v. Barr, 947 F.3d 1238, 1242 (9th Cir. 2020) (citation modified). The
particularity requirement is used in determining “whether a collection of individuals
is considered to be a particular social group” within the relevant society. Henriquez-
Rivas v. Holder, 707 F.3d 1081, 1091 (9th Cir. 2013). The social distinction
requirement refers to whether the proposed group is recognized by the relevant
society, which depends on “the perception of the society in question.” Conde
Quevedo, 947 F.3d at 1242.
Petitioner’s proposed PSG is “children with parents who have relocated to the
United States.” The BIA affirmed the IJ’s determination that this PSG was not
sufficiently particular to be a cognizable social group. Petitioner, however, asserts
that the “PSG has the necessary social distinction because the Guatemalan
government formally recognizes such parent-child relationships.” This argument
misses the point. Petitioner does not argue that she will be persecuted because she
5 25-2227 has parents; she argues that she will be persecuted because her parents live in the
United States. As such, it is petitioner’s burden to show that children of parents who
live in the United States constitute a social “group [that] would be recognized, in
[Guatemala], as a discrete class of persons.” Henriquez-Rivas, 707 F.3d at 1091.
Petitioner has not met that burden. Even disregarding her frivolous asylum
application, petitioner is ineligible for asylum and withholding of removal.
Finally, substantial evidence supports the BIA’s finding that petitioner is not
entitled to CAT protection. Petitioner failed to establish that she suffered past torture.
Petitioner provided only generalized country conditions evidence about the
corruption, violence, and crime that the Guatemalan government was generally
ineffective at investigating and preventing. Thus, petitioner also failed to establish a
likelihood of torture by or with the acquiescence of the Guatemalan government
upon return to Guatemala.
PETITION DENIED.1
1 The temporary stay of removal remains in place until the mandate issues. The motion for a stay of removal is otherwise denied.
6 25-2227