Rivas Ramirez v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 27, 2023
• Docket: 22-496
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 27 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

JOSE AMILCAR RIVAS RAMIREZ, No. 22-496 Agency No. Petitioner, A206-510-395 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted December 8, 2023** Pasadena, California

Before: WARDLAW and BUMATAY, Circuit Judges, and KENNELLY, District

Judge.***

Jose Amilcar Rivas Ramirez (“Rivas”), a native and citizen of El Salvador,

* 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 Matthew F. Kennelly, United States District Judge for the Northern District of Illinois, sitting by designation. petitions for review of a Bureau of Immigration Appeals (“BIA”) decision affirming

the order of an Immigration Judge (“IJ”) denying his applications for asylum,

withholding of removal, and protection under the Convention Against Torture

(“CAT”). We have jurisdiction to review the BIA decision under 8 U.S.C. § 1252.

“We review questions of law, such as whether a proposed particular social

group is cognizable for purposes of withholding of removal, de novo.” Macedo

Templos v. Wilkinson, 987 F.3d 877, 879 (9th Cir. 2021). We review findings of

fact for substantial evidence and uphold the agency’s decision “unless the evidence

compels a contrary result.” Budiono v. Lynch, 837 F.3d 1042, 1046 (9th Cir. 2016)

(simplified). “Where, as here, the BIA agrees with the IJ decision and also adds its

own reasoning, we review the decision of the BIA and those parts of the IJ’s decision

upon which it relies.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1027–28 (9th Cir.

2019). We deny the petition.

1. Regarding his asylum and withholding claims, Rivas argues that the BIA

erred by concluding that his proposed particular social group is not cognizable. “It

is now well-established that an applicant seeking relief based on membership in a

particular social group must establish that the 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.” Diaz-Reynoso v. Barr, 968 F.3d

1070, 1077 (9th Cir. 2020) (simplified).

2 22-496 Rivas contends that he belongs to the particular social group of “witnesses to

criminal gang activity.” Although Rivas asserted that he witnessed gang members

murder someone, he did not testify against them in open court; nor did he even take

the overt step of reporting the murder to the police. The BIA concluded that the

proposed group lacks particularity and social distinction and is thus not cognizable. 1

Substantial evidence supports the BIA’s conclusion that Rivas’s proposed

group is overbroad and lacks sufficient boundaries. To satisfy the particularity

standard, “the social group must be defined by characteristics that provide a clear

benchmark for determining who falls within the group, such that the group possesses

‘discrete and . . . definable boundaries.’” Diaz-Reynoso, 968 F.3d at 1077 (quoting

Matter of M-E-V-G-, 26 I. & N. Dec. 227, 239 (BIA 2014)). As the BIA reasoned,

the term “witness” might “extend[] to persons who see only a portion of a crime

being committed, or only hear certain aspects of criminal activity, or who see part

or all of the commission of a crime, but cannot identify the perpetrators.” And for

Rivas, the group cannot be narrowed to those witnesses who testified because he did

1 Before us, Rivas argues for the first time that he belongs to the group of “[m]en in their early 20’s [sic] fitting the gang recruitment demographic, who refused violent recruitment methods to join a street gang, and reported the violence, threats and recruitment efforts to the local police, and received no help from the police.” As the government notes, Rivas failed to raise this proposed group to the agency. We thus decline to review this unexhausted claim. Umana-Escobar v. Garland, 69 F.4th 544, 550 (9th Cir. 2023); see Aguilar-Osorio v. Garland, 991 F.3d 997, 1000 n.2 (9th Cir. 2021).

3 22-496 not testify or even report the crime to the police. Cf. Henriquez-Rivas v. Holder, 707

F.3d 1081, 1093 (9th Cir. 2013) (considering the particularity of the particular social

group of “people who testified against gang members”). The BIA also reasoned that

the “criminal gang activity” language did not clearly delineate between serious and

non-serious crimes. The record does not compel a contrary conclusion.

Accordingly, “the proposed group is not discrete and lacks definable boundaries”

because it “encompasses anyone in [the country] who is a potential witness to

anything that can be characterized as crime committed by a gang member.” Aguilar-

Osorio, 991 F.3d at 999 (simplified).

Because substantial evidence supports the BIA’s particularity determination,

we need not reach the proposed social group’s distinctiveness.

2. Rivas also challenges the denial of CAT protection. The BIA noted that

Rivas made no argument on appeal from the IJ as to his claim for CAT relief and

determined the claim waived. We decline to consider the unexhausted claim.

Umana-Escobar, 69 F.4th at 550.

PETITION DENIED.

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