Omar Galdamez v. Jefferson Sessions , 683 F. App'x 571 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 17 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OMAR GALDAMEZ, No. 14-71676
Petitioner, Agency No. A094-321-211
v.
MEMORANDUM*
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted February 15, 2017
San Francisco, California
Before: BERZON and CLIFTON, Circuit Judges and GARBIS,** Senior District
Judge.
Omar Galdamez (“Galdamez”), a native and citizen of El Salvador, petitions
for review of the Board of Immigration Appeals’ (“BIA”) decision affirming the
Immigration Judge’s (“IJ”) denial of his applications for asylum, withholding of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Marvin J. Garbis, Senior District Judge for the U.S.
District Court for the District of Maryland, sitting by designation.
removal, and relief under the Convention Against Torture (“CAT”). We have
jurisdiction pursuant to 8 U.S.C. § 1252(a), and we deny the petition.
Galdamez challenges the BIA’s determination that he failed to establish
eligibility for asylum, withholding of removal, and relief under the CAT.
Specifically, Galdamez argues that (1) the BIA erred in finding that he failed to
demonstrate membership in a cognizable social group and (2) he is eligible for
relief because he was persecuted on account of his political opinion, neutrality.
The proposed social groups presented to the BIA are not cognizable under
the law. The BIA’s articulation of the particularity and social distinction
requirements for cognizable social groups is entitled to Chevron deference. See
Reyes v. Lynch, 842 F.3d 1125, 1129 (9th Cir. 2016). Here, the BIA’s
interpretation of the requirements as they pertain to Galdamez’s proposed social
group, “Salvadoran young men who refuse to join a criminal organization,” was
both reasonable and consistent with our precedent.1 In Barrios v. Holder, we held
that the proposed social group “young males in Guatemala who are targeted for
gang recruitment but refuse because they disagree with the gang’s criminal
activities” lacked the requisite particularity and social visibility to be cognizable.
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We note that Galdamez did not offer any evidence to the IJ or BIA
regarding the contention that gang insignia or tattoos are so prevalent in El
Salvador that their absence defines a particular social group, or is otherwise
relevant to the social group inquiry.
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581 F.3d 849, 854-55 (9th Cir. 2009). We similarly concluded that “young
Honduran men who have been recruited by the MS-13, but who refuse to join” did
not constitute a particular social group. Ramos-Lopez v. Holder, 563 F.3d 855, 856
(9th Cir. 2009) abrogated on other grounds by Henriquez-Rivas v. Holder, 707
F.3d 1081 (9th Cir. 2013) (en banc); see also Santos-Lemus v. Mukasey, 542 F.3d
738, 741, 746 (9th Cir. 2008) (holding that “the class of young men in El Salvador
who resist the violence and intimidation of gang rule” does not constitute a
particular social group), abrogated on other grounds by Henriquez-Rivas, 707 F.3d
1081. In addition, substantial evidence supports the BIA’s conclusion that
Galdamez failed to establish eligibility for asylum based on membership in his
family. See Santos-Lemus, 542 F.3d at 743-44. The evidence he provided to
support his claim was insufficient to show that the persecution he faced, or will
face, was plausibly on account of his family membership. Jie Lin v. Ashcroft, 377
F.3d 1014, 1029 (9th Cir. 2004).
Galdamez’s contention that he is eligible for asylum on account of his
political expression of neutrality was raised for the first time on appeal. Our
review of this issue is thereby precluded given that Galdamez did not exhaust his
administrative remedies before the IJ and BIA. See 8 U.S.C. § 1252(d)(1); Barron
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v. Ashcroft, 358 F.3d 674, 678 (9th Cir. 2004); Zhang v. Ashcroft, 388 F.3d 713,
721 (9th Cir. 2004).
Lastly, Galdamez failed to demonstrate his eligibility both for withholding
of removal and for relief under the CAT. By failing to demonstrate his eligibility
for asylum, Galdamez also failed to meet the higher burden required for
withholding of removal. 8 C.F.R. § 1208.16; see Mansour v. Ashcroft, 390 F.3d
667, 673 (9th Cir. 2004). Furthermore, Galdamez is ineligible for relief under the
CAT because the record does not compel the conclusion that Galdamez was, or
will be, tortured in El Salvador at the instigation of, or with the acquiescence of the
government. See Silaya v. Mukasey, 524 F.3d 1066, 1073 (9th Cir. 2008);
Kamalthas v. INS, 251 F.3d 1279, 1282-83 (9th Cir. 2001).
PETITION DENIED IN PART AND DISMISSED IN PART.
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