Gonzalez Aguilar v. Garland ( 2023 )

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NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 22 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
Stanley Gonzalez Aguilar, No. 21-1266
Petitioner, Agency No. A205-719-764
v.
MEMORANDUM*
Merrick B. Garland, U.S. Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 16, 2023**
San Francisco, California
Before: S.R. THOMAS, MILLER, and SANCHEZ, Circuit Judges.
Stanley Gonzalez Aguilar, a native and citizen of El Salvador, petitions
for review of a decision of the Board of Immigration Appeals dismissing his
appeal from an order of an immigration judge pretermitting his application for
cancellation of removal and denying his applications for asylum, withholding of
removal, and protection under the Convention Against Torture. We have
*
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).
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jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
1. The immigration court had jurisdiction over Gonzalez’s removal
proceeding even though Gonzalez’s notice to appear did not specify the time,
date, or location of his hearing. United States v. Bastide-Hernandez, 39 F.4th
1187, 1188 (9th Cir. 2022) (en banc).
2. The Board correctly concluded that Gonzalez’s robbery conviction
under California Penal Code section 211 is a crime involving moral turpitude.
Mendoza v. Holder, 623 F.3d 1299, 1300 (9th Cir. 2010). Gonzalez argues that
some robbery offenses are not categorically crimes involving moral turpitude
because they do not require an intent to permanently deprive the victim of his or
her property. That is not true of section 211, however, which “requires the
‘specific intent to permanently deprive’ the victim of his or her property.”
People v. Wilson, 484 P.3d 36, 67 (Cal. 2021) (quoting People v. Young, 105
P.3d 487, 502 (Cal. 2005)).
3. Substantial evidence supports the Board’s determination that Gonzalez
failed to establish that he will face persecution on the basis of his membership
in a cognizable particular social group. The record does not compel the
conclusion that perceived gang members are a distinct group in Salvadoran
society. In Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016), we upheld the
Board’s conclusion that former gang members in El Salvador were not a distinct
social group because the evidence did not compel the conclusion that former
gang members were “distinct from current gang members” or from “suspected
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gang members who face discriminatory treatment and other challenges in
Salvadoran society.” Id. at 1138. Similarly, the evidence here does not show
that perceived gang members are seen as a distinct group. Rather, the evidence
shows similar treatment in Salvadoran society for actual gang members and
even for those who have no apparent connection to gangs.
The record does not compel the conclusion that Salvadorans perceived to
oppose gangs or Salvadorans with immediate family members who are U.S.
citizens are socially distinct groups. Gonzalez has not identified evidence
demonstrating that Salvadoran society views people with those traits as distinct.
See Villegas Sanchez v. Garland, 990 F.3d 1173, 1180–81 (9th Cir. 2021)
(“[S]ocial distinction requires ‘evidence showing that society in general
perceives, considers, or recognizes persons sharing the particular characteristic
to be a group.’” (quoting Matter of W-G-R-, 26 I. & N. Dec. 208, 217 (B.I.A.
2014)).
The proposed social group of returnees to El Salvador from the United
States who have criminal records lacks particularity. That group “could include
large swaths of people and various cross-sections of a community.” Macedo
Templos v. Wilkinson, 987 F.3d 877, 882 (9th Cir. 2021). The group
encompasses individuals convicted of minor to severe offenses as well as
individuals who lived in the United States briefly and for many years.
4. Substantial evidence also supports the Board’s conclusion that
Gonzalez did not establish that he will face persecution on the basis of imputed
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political opinions. The record reveals that the Salvadoran government targets
gang members because of their criminal activity. The evidence does not compel
the conclusion that the government targets gang members because of their
political opinions. Nor does the evidence compel the conclusion that gangs
would target Gonzalez because of an imputed anti-gang political opinion. Cf.
INS v. Elias-Zacarias, 502 U.S. 478, 482–83 (1992). Contrary to Gonzalez’s
arguments, the Board appropriately evaluated the proposed particular social
groups and political opinions through a case-specific “evidence-based inquiry.”
Pirir-Boc v. Holder, 750 F.3d 1077, 1084 (9th Cir. 2014).
5. Substantial evidence supports the Board’s conclusion that Gonzalez’s
claim of future torture is speculative. Gonzalez cites evidence that Salvadoran
police have in some cases arrested people who have not committed gang
violence simply because of their tattoos. That evidence is insufficient to compel
the conclusion that police would be “more likely than not” to torture Gonzalez.
8 C.F.R. § 1208.16(c)(2).
The motions to stay removal (Dkt. Nos. 3, 9) are denied. The temporary
stay of removal is lifted.
PETITION DENIED.
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