Vela Flores v. Garland
Opinion
NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 9 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MERCEDES DE LOS ANGELES VELA No. 23-2069 FLORES; JOSE RONALDO Agency Nos. HERNANDEZ VELA, A201-530-855 A201-530-854 Petitioners,
v. MEMORANDUM*
MERRICK B. GARLAND, Attorney General,
Respondent.
On Petition for Review of an Order of the Board of Immigration Appeals
Submitted October 23, 2024** San Francisco, California
Before: S.R. THOMAS, WARDLAW, 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 voted to grant Petitioners’ motion to submit the case on the briefs, without oral argument. See Fed. R. App. P. 34(a)(1). Mercedes De Los Angeles Vela Flores (“Vela”) and her son, Jose Ronaldo
Hernandez Vela,1 natives and citizens of El Salvador, petition for review of a
decision of the Board of Immigration Appeals (“BIA”) affirming an Immigration
Judge’s (“IJ”) denial of their applications for asylum, withholding of removal, and
protection under the Convention Against Torture (“CAT”). We have jurisdiction
under 8 U.S.C. § 1252, and we deny the petition.
“Where, as here, the BIA cites [Matter of Burbano, 20 I. & N. Dec. 872, 874
(BIA 1994)] and also provides its own review of the evidence and law, we review
both the IJ’s and the BIA’s decisions.” Ali v. Holder, 637 F.3d 1025, 1028 (9th
Cir. 2011). We review the IJ’s and BIA’s factual findings for substantial
evidence. Id. at 1028‒29. We accept their findings “unless any reasonable
adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. §
1252(b)(4)(B); see Garland v. Ming Dai, 593 U.S. 357, 365 (2021).
1. To qualify for asylum and withholding from removal, a petitioner
must demonstrate that the petitioner has been persecuted or has a well-founded fear
of future persecution “on account of race, religion, nationality, membership in a
particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A); 8 C.F.R.
§ 1208.16(b)(2). Substantial evidence supports the agency’s determination that
Vela failed to show that her proposed particular social groups were cognizable.
1 Jose Ronaldo Hernandez Vela’s petition is derivative of his mother’s.
2 23-2069 See Villegas Sanchez v. Garland, 990 F.3d 1173, 1180 (9th Cir. 2021). Vela put
forth three proposed social groups: (1) single mothers whose children are targeted
for abduction in El Salvador; (2) single mothers and women who are seen as
second-class citizens and unable to avail themselves of the legal system or have the
same socioeconomic standards as men in El Salvador; and (3) children who are
targeted for a wide variety of deprivation of life and liberty in El Salvador because
of the government’s incapacity or unwillingness to protect its citizens. However,
Vela failed to adduce sufficient evidence that these groups are “socially distinct
within the society in question,” as she must demonstrate. Reyes v. Lynch, 842 F.3d
1125, 1131 (9th Cir. 2016) (internal quotation marks and citation omitted).
“[S]ocial distinction requires ‘evidence showing that society in general perceives,
considers, or recognizes persons sharing the particular characteristic to be a
group.’” Villegas Sanchez, 990 F.3d at 1180–81 (citation omitted). Vela’s country
reports do not address how Salvadoran society perceives her proposed social
groups, nor does she show how her proposed social groups are socially distinct.
See id. 1181–82 (holding that “generalized statistics” and general statements “do
not compel a finding that these proposed groups are socially distinct”).
2. Substantial evidence also supports the agency’s determination that
Vela failed to demonstrate a well-founded fear of future persecution. See 8 U.S.C.
§ 1101(a)(42)(A); 8 C.F.R. § 1208.16(b)(2). Neither Vela nor her son had been
3 23-2069 threatened or harmed in the past, and Vela’s general contention that the
government of El Salvador is unable or unwilling to protect women and children
from violence does not compel the conclusion that she would face persecution in
the future. Vela’s credible testimony, which recounts several incidents of women
and children being abducted, and the country reports, noting incidents of violence
against women and children, at most demonstrate general civil strife or widespread
random violence to which all members of the public are subject. See, e.g., Lolong
v. Gonzales, 484 F.3d 1173, 1179 (9th Cir. 2007) (en banc) (“[A] general,
undifferentiated claim of [anti-Chinese or anti-Christian violence in Indonesia]
does not render an alien eligible for asylum.”).
3. Vela does not challenge the agency’s determination that she failed to
demonstrate that she could not reasonably and safely relocate within El Salvador to
avoid future harm. See 8 C.F.R. § 1208.13(b)(2)(ii), (b)(3)(i). Vela waived this
issue by failing to clearly articulate it in her opening brief. See Corro-Barragan v.
Holder, 718 F.3d 1174, 1177 n.5 (9th Cir. 2013) (applicant waived issue not raised
in opening brief).2
4. Substantial evidence also supports the agency’s determination that
Vela failed to meet her burden to qualify for protection under CAT. At a
2 Because Vela cannot demonstrate prima facie eligibility for asylum, petitioners cannot meet the more stringent standard for withholding of removal. See, e.g., Zehatye v. Gonzales, 453 F.3d 1182, 1190 (9th Cir. 2006).
4 23-2069 minimum, Vela was required to show that she would be subjected to “severe pain
or suffering . . . inflicted 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. § 208.18(a)(1). “[A] general
ineffectiveness on the government’s part to investigate and prevent crime will not
suffice to show acquiescence [to torture].” Andrade-Garcia v. Lynch, 828 F.3d
829, 836 (9th Cir. 2016). Vela contends that laws aimed at protecting women and
children remain unenforced in El Salvador. However, the record supports the
agency’s finding that the Salvadoran government actively combats gang violence.
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