Edgar Hernandez v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 17 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDGAR NOE HERNANDEZ, No. 17-72454
Petitioner, Agency No. A206-730-967
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 4, 2020**
Pasadena, California
Before: LIPEZ,*** RAWLINSON, and N.R. SMITH, Circuit Judges.
Edgar Noe Hernandez, a native and citizen of El Salvador, petitions for
review of a Board of Immigration Appeals ("BIA") decision dismissing his appeal
of an order of an Immigration Judge ("IJ") denying his applications for asylum,
*
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).
***
The Honorable Kermit V. Lipez, United States Circuit Judge for the
First Circuit, sitting by designation.
withholding of removal, and protection under the Convention Against Torture
("CAT"). We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the
petition.
1. Hernandez asserts that the BIA erred by concluding that his three
proposed social groups -- "Salvadoran young males actively involved in church
youth activities who resist gang recruitment for religious beliefs," "Salvadorans
who fled after resisting gang recruitment and are deported back to El Salvador,"
and "Salvadorans who take concrete steps to resist gang membership" -- are not
cognizable as particular social groups under the Immigration and Nationality Act,
thus requiring denial of his applications for asylum and withholding of removal.
We disagree.
The "social distinction" prong of the particular social group analysis "refers
to social recognition," which is "determined by the perception of the society in
question, rather than by the perception of the persecutor." Conde Quevedo v. Barr,
947 F.3d 1238, 1242 (9th Cir. 2020) (internal quotation marks omitted).
Determining social distinction requires a case-specific inquiry into "whether the
relevant society recognizes [the] proposed social group." Id. (alteration in original)
(quoting Pirir-Boc v. Holder, 750 F.3d 1077, 1084 (9th Cir. 2014)). Substantial
evidence supports the BIA's conclusion that none of Hernandez's proposed groups
are socially distinct.
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2. Hernandez asserts that the BIA denied him due process because it failed
to provide any reasoned analysis regarding the country-specific evidence he
submitted in relation to his three proposed social groups. Again, we disagree. The
IJ undertook the required case-specific inquiry, and the BIA unambiguously relied
upon the IJ's reasoning, leaving no question as to the basis of its decision.
3. Finally, Hernandez takes issue with the BIA's adjudication of his CAT
claim. To be entitled to relief under the CAT, a petitioner must demonstrate that it
is "more likely than not that he or she would be tortured if removed to the proposed
country of removal." 8 C.F.R. § 208.16(c)(2). Substantial evidence supports the
IJ's and BIA's conclusion that it was not more likely than not that Hernandez would
be tortured if removed to El Salvador. To the extent that Hernandez asserts that
the IJ and BIA committed legal error in their analysis of his CAT claim by failing
to meaningfully review all the country conditions evidence or misconstruing the
legal standard for CAT relief, that argument also fails. The IJ's decision reflected a
close review of all the country conditions evidence, and there is no reason to
believe that the BIA did not review the record and agree with the IJ's treatment of
it, as stated in its decision. Moreover, contrary to Hernandez's argument, neither
the IJ nor the BIA "required" a showing of past torture; rather, both appropriately
relied on Hernandez's failure to allege past torture as an important -- but non-
dispositive -- factor in the analysis of Hernandez's CAT claim. See id.
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§ 208.16(c)(3)(i).
The petition for review is DENIED.
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