Oscar Aguilar v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 15 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSCAR RECINOS AGUILAR, No. 19-71407
Petitioner, Agency No. A200-107-824
v.
MEMORANDUM * 0F
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 2, 2020** 1F
Before: WALLACE, CLIFTON, and BRESS, Circuit Judges.
Memorandum by Judges WALLACE and CLIFTON, Partial Concurrence and
Partial Dissent by Judge BRESS
Oscar Recinos Aguilar, a native and citizen of El Salvador, petitions for
review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal
from an immigration judge’s (“IJ”) decision denying his application for
withholding of removal and relief under the Convention Against Torture (“CAT”).
*
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).
We have jurisdiction under 8 U.S.C. § 1252. We review de novo the legal question
of whether a particular social group is cognizable, except to the extent that
deference is owed to the BIA’s interpretation of the governing statutes and
regulations. Conde Quevedo v. Barr, 947 F.3d 1238, 1241-42 (9th Cir. 2020). We
review factual findings for substantial evidence. Id. at 1241. We review de novo
claims of due process violations in immigration proceedings. Jiang v. Holder, 754
F.3d 733, 738 (9th Cir. 2014). We deny in part and grant in part the petition for
review, and we remand.
The BIA did not err in concluding that Aguilar failed to establish
membership in a cognizable particular social group. See Reyes v. Lynch, 842 F.3d
1125, 1131 (9th Cir. 2016) (in order to demonstrate membership in a particular
social group, “[t]he applicant must ‘establish that the group is (1) composed of
members who share a common immutable characteristic, (2) defined with
particularity, and (3) socially distinct within the society in question’” (quoting
Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014))). Substantial evidence
supports the BIA’s determination that Aguilar otherwise failed to establish that the
harm he experienced or fears in El Salvador was or would be on account of a
protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (an
applicant’s “desire to be free from harassment by criminals motivated by theft or
random violence by gang members bears no nexus to a protected ground”); Santos-
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Lemus v. Mukasey, 542 F.3d 738, 746-47 (9th Cir. 2008) (resistance to a gang’s
recruitment efforts alone does not constitute political opinion) abrogated on other
grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013).
To the extent Aguilar contends that the IJ and BIA failed to consider
evidence or otherwise erred in their analyses of his cognizability and nexus claims,
those contentions fail as unsupported by the record. See Najmabadi v. Holder, 597
F.3d 983, 990 (9th Cir. 2010) (BIA need not write an exegesis on every
contention); Fernandez v. Gonzales, 439 F.3d 592, 603 (9th Cir. 2006) (petitioner
did not overcome the presumption that the BIA reviewed the record).
In light of this disposition, we need not reach Aguilar’s contentions as to
relocation and whether the Salvadoran government was and will be unable or
unwilling to control those he fears. See Simeonov v. Ashcroft, 371 F.3d 532, 538
(9th Cir. 2004) (“As a general rule courts and agencies are not required to make
findings on issues the decision of which is unnecessary to the results they reach.”
(internal citation and quotation marks omitted)).
Thus, Aguilar’s withholding of removal claim fails.
As to relief under CAT, it appears the BIA misstated Aguilar’s testimony as
to the circumstances of his two reports to the police, and thereby failed to consider
all relevant evidence as to government acquiescence. Parada v. Sessions, 902 F.3d
901, 915-16 (9th Cir. 2018) (remanding where “the agency erred by failing to
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consider all relevant evidence” as to CAT relief); Cole v. Holder, 659 F.3d 762,
771-72 (9th Cir. 2011) (indications of the BIA’s failure to properly consider all of
the relevant evidence “include misstating the record”). Specifically, the BIA’s
findings that Aguilar “was not able to provide any names or descriptions or any
other identifying or particular information regarding both incidents” and that this
“precluded the police from doing much about the crimes” are contrary to the record
of testimony. Apart from this finding, it is unclear whether the BIA considered all
evidence relevant to the probability of future torture. See Barajas-Romero v.
Lynch, 846 F.3d 351, 364 (9th Cir. 2017) (“all evidence bearing on the likelihood
of future torture should be considered, including but not limited to past torture,
possibility of safe relocation, country evidence of flagrant human rights violations,
and other evidence regarding country conditions” (internal citation and quotation
marks omitted)); see also Movsisian v. Ashcroft, 395 F.3d 1095, 1098 (9th Cir.
2005) (BIA must provide a reasoned explanation for its actions). Thus, we grant
the petition for review and remand Aguilar’s CAT claim to the BIA for further
proceedings consistent with this disposition. See INS v. Ventura, 537 U.S. 12, 16-
18 (2002) (per curiam).
The parties shall bear their own costs on appeal.
PETITION FOR REVIEW DENIED in part; GRANTED in part;
REMANDED.
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Aguilar v. Barr, No. 19-71407
BRESS, Circuit Judge, concurring in part and dissenting in part:
I concur in the denial of the petition as to the withholding of removal
claim. However, I would have denied the petition as to the CAT claim as well.
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