Darwin Alvarez-Umanzor v. William Barr ( 2020 )

FILED
NOT FOR PUBLICATION
DEC 16 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DARWIN EDIMAR ALVAREZ- No. 19-71667
UMANZOR, DEYBIN EDIMAR
ALVAREZ-SANTOS, MAIRA Agency Nos. A206-793-461
JACKELINE SANTOS-SANTOS, A206-793-429
ESCARLETH MICHELL ALVAREZ- A206-793-430
SANTOS, A206-793-462
Petitioners,
v. MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 10, 2020**
San Francisco, California
*
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).
Before: W. FLETCHER and IKUTA, Circuit Judges, and SCHREIER,*** District
Judge.
Darwin Edimar Alvarez-Umanzor, Maira Jackeline Santos-Santos, and their
two minor children, Deybin Edimar Alvarez-Santos and Escarleth Michell
Alvarez-Santos (Petitioners), are natives and citizens of El Salvador. They appeal
the decision of the Board of Immigration Appeals (BIA) that affirmed the
determination of the Immigration Judge (IJ) denying their applications for asylum,
withholding of removal, and protection under the Convention Against Torture
(CAT). This court has jurisdiction under 8 U.S.C. § 1252.
“We review denials of asylum, withholding of removal, and CAT relief for
substantial evidence and will uphold a denial supported by reasonable, substantial,
and probative evidence on the record considered as a whole.” Yali Wang v.
Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017) (quoting Ling Huang v. Holder, 744
F.3d 1149, 1152 (9th Cir. 2014) (internal quotation omitted)).
The IJ found, and the BIA affirmed, that Petitioners’ eligibility for asylum
fails for two reasons: lack of particularity of the alleged social groups and lack of
nexus between persecution and social group membership. A cognizable social
group must be “(1) composed of members who share a common immutable
***
The Honorable Karen E. Schreier, United States District Judge for the
District of South Dakota, sitting by designation.
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characteristic, (2) defined with particularity, and (3) socially distinct within the
society in question.” Diaz-Reynoso v. Barr, 968 F.3d 1070, 1077 (9th Cir. 2020)
(quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014)). Petitioners
must also demonstrate a nexus between social group membership and persecution.
Reyes v. Lynch, 842 F.3d 1125, 1132 n.3 (9th Cir. 2016).
Here, Petitioners presented what they claimed to be two cognizable social
groups to the Immigration Judge: (1) “imputed members or imputed former
members of the M-18 gang in El Salvador” and (2) “Salvadoran landowners forced
to cooperate with gangs for the benefit of the gang causing imputed gang
membership.” Substantial evidence in the record shows that these social groups
lack the particularity to be a discrete group of people that can be neatly described
or identified. See Mendoza-Alvarez v. Holder, 714 F.3d 1161, 1165 (9th Cir. 2013).
The notion of imputed gang membership is “amorphous and overbroad,” especially
in the context of widespread gang violence throughout El Salvador. Substantial
evidence also supports the BIA’s conclusion that “landowners forced to cooperate
with gangs” was “too diverse” to qualify as a particular social group. And the BIA
did not err in finding that there is no nexus between the persecution suffered by the
petitioners and membership in these groups because Salvadoran citizens not in
these groups were victimized in similar ways. Thus, the BIA’s determination that
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Petitioners are not members of a cognizable social group is supported by
substantial evidence.
Petitioners contend that the BIA erred when it failed to address membership
in a social group based upon Santos-Santos’s gender. But the record indicates that
Petitioners never presented this alleged gender-based social group to the IJ. Thus,
the BIA correctly declined to address this issue.
The doctrines of waiver and forfeiture apply in the context of removal
proceedings. Honcharov v. Barr, 924 F.3d 1293, 1296 (9th Cir. 2019). The BIA is
“an appellate body whose function is to review, not create a record[.]” Id. (quoting
In re Fedorenko, 19 I. & N. Dec. 57, 74 (B.I.A. 1984)). Petitioners failed to argue
to the IJ that gender was a cognizable particular social group, and they failed to
argue that there was a nexus between the persecution and Santos-Santos’ gender.
The BIA did not err when it declined to consider this newly alleged group on
appeal.
PETITION DENIED.
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