Sandor Tobar-Ramirez v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 26, 2021
• Docket: 18-73158
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 26 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

SANDOR MAURICIO TOBAR- No. 18-73158 RAMIREZ, Agency No. A202-081-073 Petitioner,

v. MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted March 1, 2021**1F P

Pasadena, California

Before: SILER,*** HURWITZ, and COLLINS, Circuit Judges.

* 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 Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. Sandor Tobar-Ramirez, a native and citizen of El Salvador, petitions for

review of two decisions by the Board of Immigration Appeals (“BIA”) dismissing

his appeals from the decisions of an Immigration Judge (“IJ”) denying his

applications for asylum, withholding of removal, and protection under the

Convention Against Torture (“CAT”). Reviewing the BIA’s “legal conclusions de

novo and its factual findings for substantial evidence,” Bringas-Rodriguez v.

Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc) (citations omitted), we deny

the petition in part and grant it in part.

1. Substantial evidence supports the BIA’s determination that Tobar failed

to establish a nexus between any past or feared future persecution and an imputed

political opinion. Tobar testified that he was neither politically active nor a member

of any political party, and proffered no evidence that gang members or police

officers targeted him for political reasons. The BIA was not required to infer

political motive by his alleged persecutors. See Singh v. Holder, 764 F.3d 1153,

1160-61 (9th Cir. 2014).

2. Before the agency, Tobar also argued that he was persecuted on account

of his membership in two particular social groups (“PSGs”): (1) “individuals who

are persecuted by gang members who threaten them with death and force them to

relocate from their domicile”; and (2) “abandoned children who have been targets

of gangs, and government cannot protect them.” The BIA found neither PSG

2 cognizable because both were “based solely and circularly on the shared experience

of persecution.” The BIA’s rejection of the first PSG is consistent with our

precedent, as that group was “defined exclusively by the fact that its members have

been subjected to harm.” Diaz-Reynoso v. Barr, 968 F.3d 1070, 1086 (9th Cir. 2020)

(cleaned up). In his opening brief, Tobar emphasizes that his first PSG concerns

individuals with domiciles in territory controlled by a particular gang. But, because

Tobar did not advance this definition of the PSG before the BIA, we may not

consider it. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004). And, because

Tobar does not otherwise contest that, as defined below, his first PSG is

impermissibly circular, he has forfeited any challenge to that determination. See

Singh v. Ashcroft, 361 F.3d 1152, 1157 n.3 (9th Cir. 2004).

The BIA’s rejection of Tobar’s second PSG, however, runs afoul of Diaz-

Reynoso v. Barr. In Diaz-Reynoso, we clarified that “the conclusion that a proposed

social group is impermissibly circular may not be reached summarily merely

because the proposed group mentions harm.” 968 F.3d at 1086. We therefore grant

the petition for review with respect to the agency’s rejection of the “abandoned

children” PSG and remand to the agency to determine whether that PSG is

cognizable without reference to persecution, and if so, whether any past persecution

or feared future persecution has the required nexus to that PSG. See id. at 1088.

3. Substantial evidence supports the BIA’s conclusion that Tobar failed to

3 establish past torture. See 8 C.F.R. § 1208.16(c)(3)(i). Tobar testified that one gang

member threatened to kill him, cited encounters with gang members who threw

rocks at him, and said that a boy whom he suspected had been sent by gang members

hit him at school. Tobar also pointed to eight occasions over a six-year period during

which police officers stopped him, squeezed his fingers, beat him with closed fists,

and prodded him with weapons. On one occasion, officers hit Tobar with a plant

branch. The record did not compel the finding that this was sufficiently severe to

constitute torture. See 8 C.F.R. § 1208.18(a)(2); see also Kumar v. Gonzales, 444

F.3d 1043, 1055 (9th Cir. 2006).

Nor was the BIA compelled to find on this record that Tobar would more

likely than not face torture upon his return to El Salvador “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.” 8 C.F.R. §§ 1208.17(a),

1208.18(a)(1). Country condition evidence established that Salvadoran law

prohibits torture and other cruel and degrading practices and demonstrated the

government’s active measures to address violations. Tobar himself testified that if

he reported his gang-member attackers, they could “have problems with the police

or end up in jail.” Thus, the record does not compel the conclusion that the

government acted in concert with gangs in targeting Tobar or was turning a blind

eye to their activity. See Del Cid Marroquin v. Lynch, 823 F.3d 933, 937 (9th Cir.

4 2016). As to Tobar’s concerns regarding corrupt police officers, the BIA properly

concluded that there was no evidence that corrupt actors have a particularized

interest in Tobar. That fact, combined with the Salvadoran government’s efforts to

address corruption, supports the BIA’s conclusion that Tobar is not more likely than

not to face torture from a corrupt official.

PETITION FOR REVIEW DENIED in part and GRANTED in part.