Salinas Magana v. Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 9, 2024
• Docket: 23-627
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 9 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MARIA LIDIA SALINAS MAGANA, No. 23-627 Agency No. Petitioner, A208-750-498 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted April 5, 2024** Pasadena, California

Before: R. NELSON, VANDYKE, and SANCHEZ, Circuit Judges.

Petitioner Maria Salinas Magana (Salinas Magana), a citizen of El Salvador,

petitions for review of the Board of Immigration Appeals’ (BIA) dismissal of her

appeal from the Immigration Judge’s (IJ) decision denying her applications for

* 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). asylum, withholding of removal, and protection under the Convention Against

Torture (CAT). We deny the petition.

1. To establish asylum, Salinas Magana must show that she “is unable or

unwilling to return to [her] home country because of a well-founded fear of future

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

social group, or political opinion.” Udo v. Garland, 32 F.4th 1198, 1206 (9th Cir.

2022) (citation omitted); see also 8 C.F.R. § 208.31(c). A petitioner may establish

a well-founded fear of future persecution by proving past persecution, or by

demonstrating that she has a subjectively genuine and objectively reasonable fear

of future persecution. Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028–29 (9th Cir.

2019).

First, substantial evidence supports the BIA’s determination that Salinas

Magana’s previous encounters with gang members did not rise to the level of past

persecution or establish an objectively reasonable fear of future persecution.

Although she was threatened by gang members in El Salvador after she witnessed

a murder, death threats constitute persecution “in only a small category of cases,

and only when the threats are so menacing as to cause significant actual suffering

or harm.” Duran-Rodriguez, 918 F.3d at 1028 (citation omitted). Salinas Magana

did not point to compelling evidence that the threat caused her actual suffering or

harm. Further, Salinas Magana continued to live without harm in her home for two

2 months after receiving the threatening note, and she received no further

communication from the gang during that time. There is no evidence that any gang

member has attempted to contact Salinas Magana or her daughter since they left El

Salvador.

Second, Salinas Magana sought asylum based on her alleged membership in

eight different social groups.1 An individual is required to show that “the proposed

group is recognizable as ‘socially distinct.’” Diaz-Torres v. Barr, 963 F.3d 976,

978 (9th Cir. 2020). Our circuit has not recognized Salinas-Magana’s putative

social groups as distinct or particular. See Aguilar-Osorio v. Garland, 991 F.3d

997, 999 (9th Cir. 2021) (proposed group of “witnesses who ... could testify

against gang members based upon what they witnessed” was not cognizable).

Further, the persecution must be “on account of” membership in a particular social

group. Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010). There is

not a nexus between the social groups that she claims she is a part of and any

persecution that she has experienced. The threatening note was not sent on

account of Salinas Magana’s membership in any particular social group. See

Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (petitioner's “desire to be

1 Seven of the social groups claimed by Salinas Magana depend on her status as a single mother. Salinas Magana does not raise, and has therefore forfeited, any challenge to the BIA’s conclusion that her proposed social groups based on her status as a single mother are not cognizable. See Hernandez v. Garland, 47 F.4th 908, 916 (9th Cir. 2022).

3 free from … random violence by gang members bears no nexus to a protected

ground”).

2. Because substantial evidence supports the agency’s denial of asylum,

substantial evidence also supports its denial of withholding of removal. See

Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1230 (9th Cir. 2016) (“A petitioner who

fails to satisfy the lower standard of proof for asylum necessarily fails to satisfy the

more stringent standard for withholding of removal.”).

3. To be eligible for CAT protection, Salinas Magana must show that she is

more likely than not to be tortured upon removal, and that a public official would

“inflict, instigate, consent to or acquiesce in that torture.” Madrigal v. Holder, 716

F.3d 499, 508 (9th Cir. 2013). Although Salinas Magana provides reports

describing violence and corruption in El Salvador, general findings that torture

occurs in a country are not enough to establish a likelihood of torture or of public

officials’ acquiescence to torture. See Almaghzar v. Gonzales, 457 F.3d 915, 922–

23 (9th Cir. 2006). Salinas Magana and her family have never been physically

harmed in El Salvador, and there is no evidence to compel the conclusion that she

faces a risk of torture.

The petition for review is DENIED.