Stefany Lopez-Delgado v. Merrick Garland

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 16, 2023
• Docket: 21-70857
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 16 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

STEFANY YESENIA LOPEZ-DELGADO, No. 21-70857

Petitioner, Agency No. A206-768-549

v. MEMORANDUM* MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted November 14, 2023** Pasadena, California

Before: RAWLINSON, HURWITZ, and OWENS, Circuit Judges.

Stefany Yesenia Lopez-Delgado, a citizen and native of El Salvador, petitions

for review of a Board of Immigration Appeals (“BIA”) decision dismissing her

appeal from an order of an immigration judge denying her applications for asylum,

withholding of removal, and protection under the Convention Against Torture

* 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). (“CAT”). Exercising jurisdiction under 8 U.S.C. § 1252, we deny the petition.

1. Substantial evidence supports the BIA’s finding that Lopez-Delgado’s

proposed particular social group (“PSG”)—“Salvadoran females who have

demonstrated a resistance to gang demands, particularly gang extortion, and have

consequently been recognized as gang targets”—lacks particularity and social

distinction.

a. To be socially distinct, a PSG must “be perceived as a group by

society.” Rios v. Lynch, 807 F.3d 1123, 1127 (9th Cir. 2015) (quoting Matter of M-

E-V-G-, 26 I. & N. Dec. 227, 240 (BIA 2014)). Distinction can be shown through

“country conditions reports, expert witness testimony, and press accounts.” Matter

of M-E-V-G-, 26 I. & N. Dec. at 244. But Lopez-Delgado provided no such

evidence. She contends that the Salvadoran government’s efforts to curb gang

violence demonstrate that Salvadoran society views Lopez-Delgado’s group as

socially distinct. But the government’s policy merely shows that it considers gang

violence to be a problem.

b. A PSG is particular if it “can accurately be described in a manner

sufficiently distinct that the group would be recognized, in the society in question,

as a discrete class of persons.” Reyes v. Lynch, 842 F.3d 1125, 1134 (9th Cir. 2016)

(quoting Matter of S-E-G-, 24 I. & N. Dec. 579, 584 (BIA 2008)). Lopez-Delgado

claims that her proposed group can be described with particularity based on its

2 members’ “unrelenting defiance” in the face of gang extortion and violence. But

this Court has repeatedly rejected, as insufficiently particular or socially distinct,

proposed groups defined by resistance to gang membership. Santos-Ponce v.

Wilkinson, 987 F.3d 886, 890 (9th Cir. 2021) (rejecting the group “minor Christian

males who oppose gang membership” in Honduras); Santos-Lemus v. Mukasey, 542

F.3d 738, 745-46 (9th Cir. 2008) (rejecting a group of “young men in El Salvador

resisting gang violence”), abrogated in part on other grounds by Henriquez-Rivas

v. Holder, 707 F.3d 1081, 1093 (9th Cir. 2013); Ramos-Lopez v. Holder, 563 F.3d

855, 861-62 (9th Cir. 2009) (rejecting a group comprising young Honduran men

resisting gang recruitment), abrogated in part on other grounds by Henriquez-Rivas,

707 F.3d at 1093.

2. Substantial evidence also supports the BIA’s conclusion that Lopez-

Delgado did not establish a clear probability of torture upon return to El Salvador.

Lopez-Delgado was not previously tortured. See Ruiz-Colmenares v. Garland, 25

F.4th 742, 751 (9th Cir. 2022) (evidence of past torture is relevant to determining

eligibility for CAT relief). And the country conditions report upon which Lopez-

Delgado relies does not compel the finding that Salvadoran officials would

acquiesce in torture upon her return. “[G]eneral ineffectiveness on the government’s

part to investigate and prevent crime will not suffice to show acquiescence.”

Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016) (cleaned up).

3 PETITION FOR REVIEW DENIED.