Alfredo MacEdo Templos v. Robert Wilkinson ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALFREDO MACEDO TEMPLOS, No. 15-73122
Petitioner,
Agency No.
v. A089-244-826
ROBERT M. WILKINSON, Acting
Attorney General, OPINION
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted October 19, 2020
Honolulu, Hawaii
Filed February 9, 2021
Before: J. Clifford Wallace, Carlos T. Bea, and
Mark J. Bennett, Circuit Judges.
Opinion by Judge Wallace;
Concurrence by Judge Bea
2 MACEDO TEMPLOS V. WILKINSON
SUMMARY *
Immigration
Denying in part and granting in part Alfredo Macedo
Templos’s petition for review of the Board of Immigration
Appeals’ denial of withholding of removal and protection
under the Convention Against Torture, and remanding, the
panel held that the Board correctly concluded that Macedo’s
social group comprised of “Mexican wealthy business
owners” was not cognizable for purposes of withholding
relief, but that the Board erred in concluding that Macedo
failed to establish government involvement in, or
acquiescence to, his alleged torture for purposes of CAT
relief.
The panel held that the Board correctly concluded that
Macedo’s proposed social group of “Mexican wealthy
business owners” was not cognizable because it lacked
social distinction, particularity, or an immutable
characteristic. First, the panel explained that Macedo’s
proposed group was not socially distinct, because the record
lacked evidence that Mexican society perceives wealthy
business owners as a distinct group, and the United States
Department of State’s Country Report states that kidnapping
for ransom occurs at “all socioeconomic levels.” Second,
the panel explained that the proposed group lacks
particularity because it could include large swaths of people
and various cross-sections of a community. Finally, the
panel explained that being a wealthy business owner is not
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
MACEDO TEMPLOS V. WILKINSON 3
an immutable characteristic because it is not fundamental to
an individual’s identity.
The panel held that even if Macedo’s proposed group
were cognizable, he would still not be entitled to withholding
relief, because substantial evidence supported the IJ’s
decision that Macedo did not establish a nexus between the
feared harm and his alleged membership in the proposed
group.
Addressing Macedo’s CAT claim, the panel held that the
Board erred in concluding that Macedo had not proven he
had been “subjected to any harm by Mexican officials.”
Macedo argued that he established the Mexican
government’s acquiescence to his torture because he had
reasons to believe he was targeted by Mexican judicial
police, an official discouraged him from filing a report, and
he filed police reports and no action was taken. The panel
noted that the Board’s decision preceded and therefore did
not consider this court’s opinion in Barajas-Romero v.
Lynch, 846 F.3d 351 (9th Cir. 2017) (holding that the
question of whether the public officials who perpetrated
torture against the petitioner were acting in their official
capacity is irrelevant, and that the implementing regulations
do not establish a “rogue official” exception to CAT relief).
The panel concluded that even if the judicial officers who
attacked Macedo were not in uniform and did not act in their
official capacity, Macedo sufficiently demonstrated that he
was the victim of an official perpetration of violence. The
panel remanded for the Board to consider whether Macedo’s
past harm by judicial officers qualified as torture, and
whether Macedo otherwise established that it was more
likely than not he would be tortured if returned.
4 MACEDO TEMPLOS V. WILKINSON
Concurring, Judge Bea agreed that “wealthy business
owner” does not meet the particularity or social distinction
elements required to merit classification as a cognizable
particular social group, but would refrain from holding that
it cannot be an immutable characteristic. Judge Bea wrote
separately to make clear that the majority’s holding
otherwise must be considered erroneous dicta.
COUNSEL
Kevin Block (argued), Wailuku, Hawaii, for Petitioner.
Tim Ramnitz (argued), Attorney; Russell J.E. Verby, Senior
Litigation Counsel; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.
OPINION
WALLACE, Circuit Judge:
Alfredo Macedo Templos petitions from the Board of
Immigration Appeals (Board) and challenges the denial of
his application for withholding of removal and relief
pursuant to the Convention Against Torture (CAT).
Macedo is a native citizen of Mexico. He states he fled
Mexico after he and his family were targeted by criminals
due to his successful clothing business. The Immigration
Judge (IJ) concluded that, although Macedo was credible, he
was not eligible for withholding of removal or CAT relief.
The IJ held that Macedo’s proposed particular social group
was not cognizable, and there was no nexus between the
MACEDO TEMPLOS V. WILKINSON 5
alleged harm and his membership in the proposed group.
The IJ also concluded that Macedo was not eligible for CAT
relief because he failed to establish the Mexican
government’s involvement in, or acquiescence to, his
torture. The Board affirmed and provided additional
analysis for why it believed the IJ’s determination was not
clear error. Macedo petitions for review of the denial of his
application for withholding of removal and CAT status.
We have jurisdiction pursuant to 8 U.S.C. § 1252. We
review both the IJ’s and the Board’s (collectively, the
Agency) decisions when they each conduct a review of the
evidence and the law. See Ali v. Holder, 637 F.3d 1025,
1028 (9th Cir. 2011). We review the IJ’s factual findings for
substantial evidence. Arteaga v. Mukasey, 511 F.3d 940,
944 (9th Cir. 2007). We review questions of law, such as
whether a proposed particular social group is cognizable for
purposes of withholding of removal, de novo. Perdomo v.
Holder, 611 F.3d 662, 665 (9th Cir. 2010). We deny the
petition for review in part and grant and remand in part.
I.
Macedo was a small business owner in Mexico City, and
he achieved some success. His business produced custom-
made shirts and clothing, and it employed approximately
20 workers. However, he was extorted in 2000 by a group
of unidentified individuals because of this success; they
demanded monthly safety fees. Macedo refused and
relocated his business to his home to avoid reprisals. He did
not file a report with the police after an official warned him
that the criminals could retaliate if they learned of the report.
His home was subsequently targeted in 2003 with a drive-
by-shooting, and he discovered a note that he believed linked
the extortion attempt with the shooting. Macedo then closed
the production side of his business and transitioned to selling
6 MACEDO TEMPLOS V. WILKINSON
only his remaining stock of clothes. Yet he and his family
continued to be targeted with other crimes.
While selling his clothes in 2005, Macedo asserts that his
vehicle was pulled over and he was beaten by two
individuals he believes were judicial police officers.
Macedo testified that one of them told him the attack was
because Macedo did not pay, although the individual did not
elaborate further. Macedo, therefore, assumed the attack
was related to the original extortion because he never
changed his car and the judicial police officers likely
identified him through it. He did not file a report because he
believed the government and the criminals “were the same
thing,” and he would be punished for reporting the incident
to the police. Macedo does not have proof that the people
who targeted him were connected with the Mexican
government, but he believes they had to be connected.
He first entered the United States in 2006 with a six-
month permit. He returned to Mexico after five months but
was shortly thereafter assaulted, and his car was stolen.
Macedo reported the attack and theft for insurance purposes,
and he decided to return to the United States. Macedo was
admitted to the United States for a second time on January
12, 2007, as a non-immigrant B2 visitor with authorization
to remain in the country until July 11, 2007. Macedo
overstayed his visa without the Department of Homeland
Security’s approval.
In 2009, kidnappers abducted his youngest daughter in
Mexico for ransom. Her kidnappers demanded two million
pesos but agreed to one million pesos. During her ordeal,
the kidnappers beat and raped her. The kidnappers did not
explain why they had targeted the Macedo family, but the
kidnappers warned the family not to report the crime because
the kidnappers had police connections. The Macedo family
MACEDO TEMPLOS V. WILKINSON 7
ignored the warning and filed a report. In the end, Macedo
reported some of these crimes to the local authorities, but he
chose not to file reports on other crimes.
In 2013, the Department of Homeland Security initiated
removal proceedings pursuant to its authority under the
Immigration and Naturalization Act. Macedo admitted the
factual allegations and conceded removability, but he
requested the opportunity to present an application for
withholding of removal and CAT relief. At his hearing in
front of the IJ, Macedo presented testimony about how he
was targeted due to his successful business. His sister and
youngest daughter testified about the crimes against the
family, as well as why Macedo had to leave Mexico and
could not return. Macedo testified that he believed these
crimes were connected and had to stem from his refusal to
comply with the original extortion demand, and he feared for
his life because he believed his government would not
protect him.
The IJ confirmed that Macedo was not eligible for
asylum because he failed to file the required petition within
a year of his arrival in the United States and did not establish
any of the exceptions to the one-year filing requirement. The
IJ found Macedo and his family credible. Nonetheless, the
IJ held that Macedo had not established past persecution nor
a clear probability of future persecution so that his life would
be threatened by returning to Mexico. The IJ also
determined that Macedo’s proposed group of “wealthy
business owners” was not cognizable.
The IJ held that there was no nexus between the crimes
against Macedo and his family and his membership in the
proposed group; Macedo simply assumed the attacks against
him were related to the original extortion. The IJ concluded
that Macedo had not established acquiescence by Mexican
8 MACEDO TEMPLOS V. WILKINSON
officials or their involvement in his treatment. The IJ denied
Macedo’s applications for withholding of removal and CAT
relief.
Macedo appealed to the Board. The Board affirmed the
denials and held that Macedo had failed to establish a
cognizable particular social group, as well as a nexus
between the feared harm and a protected ground. The Board
further held that “[b]eing a business owner is not an
immutable characteristic.” It determined that Macedo’s
victimization was the product of crime rather than
persecution. The Board concluded that Macedo did not have
a valid claim for CAT relief because he failed to establish
government acquiescence to, or involvement in, his alleged
torture.
Macedo argues two issues in his petition for review. The
first is whether the Board erred in affirming that his proposed
particular social group of Mexican wealthy business owners
who do not comply with extortion attempts is not a
cognizable group and there was no nexus between the harm
and the proposed group. The second is whether the Board
erred in affirming that Macedo was ineligible for CAT relief
because he did not establish government involvement in, or
acquiescence to, his alleged torture.
II.
The Board’s rejection of Macedo’s proposed particular
social group as not cognizable was correct, as was its holding
that Macedo failed to establish a clear nexus between the
harm suffered and his alleged membership in the proposed
group. Macedo makes three arguments, although we address
only two. Macedo’s third argument is that the IJ erred by
not making a case-by-case determination of whether he
made a valid claim. This argument ignores the record, as
MACEDO TEMPLOS V. WILKINSON 9
both the IJ and the Board conducted an individualized
analysis of his petition. Therefore, we do not address this
argument further.
Macedo’s first argument is that his membership in his
proposed group does not have to be the only central reason
for his persecution, so that he should not be precluded from
relief even if the primary motivation of his attackers was
crime rather than persecution. His second argument is that
his former occupation as a business owner corresponds with
the characteristics of a particular social group because it was
an immutable voluntary association. However, the cases
Macedo relies on are easily distinguishable, and we reject his
argument that being a wealthy business owner is an
immutable characteristic.
To qualify for withholding of removal, Macedo must
demonstrate that his life would be threatened if he were
removed to Mexico because of one of five enumerated
grounds, including membership in a particular social group.
8 U.S.C. § 1231(b)(3)(A); see also Reyes v. Lynch, 842 F.3d
1125, 1132 n.3 (9th Cir. 2016) (establishing the existence of
a cognizable particular social group is a separate requirement
from establishing membership in the group). Membership
in the group must be “a reason” for Macedo’s feared
mistreatment. 8 U.S.C. § 1231(b)(3)(C); see also Barajas-
Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017) (holding
that the “a reason” standard in section 1231(b)(3)(C) is a less
demanding standard than the asylum statute’s “one central
reason” standard in section 1158(b)(1)(B)(i)).
We have held that the phrase “particular social group” is
ambiguous, thus the Agency’s interpretation of that term is
entitled to Chevron deference so long as it is reasonable.
Henriquez-Rivas v. Holder, 707 F.3d 1081, 1083, 1087 (9th
Cir. 2013) (holding Board’s construction must be accepted
10 MACEDO TEMPLOS V. WILKINSON
if reasonable, even if not the best interpretation). An
interpretation fails this step if it is “arbitrary or capricious in
substance.” Judulang v. Holder, 565 U.S. 42, 52 n.7 (2011)
(citation and quotation marks omitted). Two companion
Board decisions clarified the elements underlying the
Agency’s particular social group analysis: Matter of M-E-V-
G-, 26 I. & N. Dec. 227 (BIA 2014) and Matter of W-G-R-,
26 I. & N. Dec. 208 (BIA 2014). In Matter of M-E-V-G-, the
Board held that the applicant must establish that the group
they claim membership in must be: “(1) composed of
members who share a common immutable characteristic,
(2) defined with particularity, and (3) socially distinct within
the society in question.” 26 I. & N. Dec. at 237.
In Matter of W-G-R-, the Board further defined each
factor. 26 I & N Dec. at 212–18. The common immutable
characteristic has been defined as one “that the members of
the group either cannot change, or should not be required to
change[,] because it is fundamental to their individual
identities or consciences.” Id. at 212 (citation omitted). The
particularity element requires characteristics that “provide a
clear benchmark for determining who falls within the
group,” such that the relevant society has a commonly
accepted definition of the group. Id. at 214. “The group
must also be discrete and have definable boundaries—it
must not be amorphous, overbroad, diffuse, or subjective.”
Id. Social distinction requires evidence that “society in
general perceives, considers, or recognizes persons sharing
the characteristic to be a group.” Id. at 217; see also
Cordoba v. Barr, 962 F.3d 479, 482–83 (9th Cir. 2020)
(observing that the persecutor’s perspective “may be
relevant” to the extent “it can be indicative of whether
society views the group as distinct,” but “the persecutors’
perception is not itself enough to make a group socially
MACEDO TEMPLOS V. WILKINSON 11
distinct, and persecutory conduct alone cannot define the
group”) (citation omitted).
Substantial evidence supports the holding that Macedo
failed to establish a particular social group. First, the
Agency was correct that Macedo’s proposed group was not
socially distinct. The record does not include evidence that
Mexican society perceives wealthy business owners as a
distinct group, and the 2013 United States Department of
State’s Country Report on Mexico states that kidnapping for
ransom occurs at “all socioeconomic levels.” Second, the
proposed group lacks particularity because it could include
large swaths of people and various cross-sections of a
community. See, e.g., Mendoza-Alvarez v. Holder, 714 F.3d
1161, 1164 (9th Cir. 2013) (holding that groups that “include
large numbers of people with different conditions and in
different circumstances” and “sweep up a large and disparate
population” lack particularity). Finally, being a wealthy
business owner is not an immutable characteristic because it
is not fundamental to an individual’s identity. See, e.g.,
Sicaju-Diaz v. Holder, 663 F.3d 1, 3–4 (1st Cir. 2011);
Tapiero de Orejuela v. Gonzalez, 423 F.3d 666, 672–73 (7th
Cir. 2005) (holding that wealthy educated landowning cattle
farmers in Colombia who were targeted by FARC because
of their social position were a particular social group but
clarifying that the group was “not merely defined by wealth,
a characteristic that standing alone” has been rejected by the
Agency).
Even if Macedo’s proposed group were cognizable, he
would still not be entitled to relief. Substantial evidence
supports the IJ’s decision that Macedo did not establish a
nexus between the feared harm and his alleged membership
in the proposed group. Macedo did not present evidence that
the crimes were committed by the same criminals driven by
12 MACEDO TEMPLOS V. WILKINSON
the same motive, beyond his opinion that his victimization
stemmed from his refusal to pay his original extortioners.
See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010)
(holding that 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”). The evidence proves that criminals in Mexico will
target anyone they believe can pay, regardless of their
victim’s background or reason for their wealth. Macedo’s
youngest daughter never learned why she was kidnapped and
raped or later held at gunpoint during a mugging. Even the
verbal and written threats against Macedo were ambiguous.
We affirm the Agency’s denial of Macedo’s application
for withholding of removal.
III.
The Board’s rejection of Macedo’s CAT request is more
complicated. Macedo argues that he established the
Mexican government’s acquiescence to his torture because
he filed police reports and no action was taken, he believes
he was targeted by Mexican judicial police, and an official
discouraged him from filing a report. Without reaching the
other alleged evidence of acquiescence, we hold that the
Board did not properly consider Macedo’s testimony
regarding the attack by the Mexican judicial officers based
on our subsequent decision in Barajas-Romero. We,
therefore, grant Macedo’s petition on this limited question
for his CAT application.
To receive CAT relief, Macedo must show that he would
“more likely than not” be tortured if removed. 8 C.F.R.
§§ 208.16(c)(2), 208.17(a). Torture is an extreme form of
“cruel and inhuman treatment that either (1) is not lawfully
sanctioned by that country or (2) is lawfully sanctioned by
MACEDO TEMPLOS V. WILKINSON 13
that country[] but defeats the object and purpose of the
convention.” Nuru v. Gonzales, 404 F.3d 1207, 1221 (9th
Cir. 2005) (citation omitted) (emphasis in original). Macedo
must prove “a chance greater than fifty percent that he will
be tortured” if removed to Mexico. Hamoui v. Ashcroft,
389 F.3d 821, 827 (9th Cir. 2004). Macedo must also prove
that he would experience torture “inflicted by or at the
instigation of or with the consent or acquiescence of a
[Mexican] public official or other person acting in an official
capacity.” Cole v. Holder, 659 F.3d 762, 771 (9th Cir.
2011), quoting 8 C.F.R. § 208.18(a)(1); Zheng v. Ashcroft,
332 F.3d 1186, 1188 (9th Cir. 2003). We must consider
“[a]ll evidence relevant to the probability of future torture
. . . including past torture and country conditions.” Barajas-
Romero, 846 F.3d at 361, citing 8 C.F.R. § 208.16.
Macedo did not discuss the impact of Barajas-Romero
in his petition, and, understandably, neither did the IJ or the
Board in their decisions, which predated Barajas-Romero.
However, the decision is relevant to the Agency’s CAT
analysis. In Barajas-Romero, we held that the question of
whether the public officials who perpetrated torture against
the petitioner were acting in their official capacity is
irrelevant. Id. at 362–63. We reasoned that the
implementing regulations do not establish a “rogue official”
exception to CAT relief. Thus, the four attackers at issue in
Barajas-Romero may have been public officials even though
other Mexican “state or federal authorities might not
similarly acquiesce.” Id. at 362. We also held that the
regulation does not require that the public official be
carrying out his official duties, so long as he is the
perpetrator or knowingly acquiesces to the torture. Id. We
concluded in Barajas-Romero that the record supported the
inference that the four local policemen were public officials
who themselves inflicted the torture, so that the petitioner
14 MACEDO TEMPLOS V. WILKINSON
was entitled to Board reconsideration of his CAT claim. Id.at 364–65. There was no such consideration by the Board or
the IJ in this case.
As in Barajas-Romero, the record supports the inference
that the judicial officers “were public officials.” Id. at 363.
The IJ found, and the Board does not dispute, that Macedo’s
testimony was credible. Macedo testified that he was robbed
and assaulted by individuals he believed to be “judicial
police” because they “had an official vehicle from the
judicial police.” With that, we conclude that the Board erred
in finding that Macedo had not proven he had been
“subjected to any harm by Mexican officials.” 1 Even if the
judicial officers were not in uniform and did not act in their
official capacity, Macedo has sufficiently demonstrated that
he was the victim of an official perpetration of violence.
Consequently, there are two remaining issues to be
considered by the Board on remand. The IJ considered
Macedo’s past harm but did not specifically hold whether it
qualified as torture, nor did the Agency consider whether
Macedo had otherwise established that it was more likely
than not he would be tortured if returned to Mexico. We,
therefore, grant Macedo’s petition for review of his
application for CAT relief and remand the issue to the Board.
1
The Board also held that “the record does not indicate that Mexican
authorities have any specific interest in harming” Macedo. While that
may be true, such a finding is irrelevant to Macedo’s eligibility for CAT
relief. We reiterate that the government need only consent or acquiesce
to a petitioner’s harm for the petitioner to be eligible for CAT relief—
not specifically intend it. See Cole, 659 F.3d at 771, quoting 8 C.F.R.
§ 208.18(a)(1).
MACEDO TEMPLOS V. WILKINSON 15
IV.
Thus, we affirm the Agency’s denial of Macedo’s
application for withholding of removal, but we grant his
petition for additional review of his application for CAT
relief. We remand with instructions for the Board to
consider whether the attack by the judicial police officers
qualifies as torture and whether Macedo has established that
it was more likely than not he would be tortured if returned
to Mexico.
DENIED in part and GRANTED and REMANDED
in part.
BEA, Circuit Judge, concurring:
While I agree “wealthy business owner” does not meet
the particularity or social distinction elements required to
merit classification as a cognizable particular social group
(“PSG”), I would refrain from holding that it cannot be an
immutable characteristic. For successful entrepreneurs,
their business is their life, and in America we revere
economic autonomy and entrepreneurship as central to the
inalienable right to pursue one’s own happiness. I write
separately to make clear that the majority’s holding
otherwise must be considered erroneous dicta.
We have deferred to the BIA’s definition of immutability
as “something that either cannot be changed or that the group
members should not be required to change in order to avoid
persecution.” Pirir-Boc v. Holder, 750 F.3d 1077, 1081 n.3
(9th Cir. 2014) (emphasis added). It is a characteristic “so
fundamental to one’s identity that a person should not be
required to abandon it.” Id. at 1081–82 (quoting Henriquez-
16 MACEDO TEMPLOS V. WILKINSON
Rivas v. Holder, 707 F.3d 1081, 1084 (9th Cir. 2013)).
Under that rubric, we have held as immutable such
characteristics as homosexuality, Hernandez-Montiel v.
I.N.S., 225 F.3d 1084, 1093 (9th Cir. 2000), overruled on
other grounds by Thomas v. Gonzales, 409 F.3d 1177 (9th
Cir. 2005) (en banc); and membership in one’s family, Rios
v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015).
Macedo Templos’s proposed PSG describes the
characteristic of being successful entrepreneurs in a free-
market economy and polity. It describes the pinnacle of self-
determination, an ethos, an inextinguishable yearning to
create, innovate, and succeed for the betterment of self,
family, and society. See Amir N. Licht, The Entrepreneurial
Spirit and What the Law Can Do About It, 28 Comp. Lab. L.
& Pol’y J. 817 (2007) (describing the scholarship examining
the entrepreneurial spirit in the individual and reflecting on
its dependency upon a supportive society, culture, and legal
framework). It is a characteristic which a person should not
be required to abandon. We would be corrupting long-held
American principles if we were to require applicants to
forsake ownership of their successful business or ignore
persecution of those who refuse to give up on thriving
economically through entrepreneurship in their home
country. See, e.g., Alexis de Tocqueville, 2 Democracy in
America 724 (Henry Reeve trans., D. Appleton 1899) (1835)
(“Boldness of enterprise is the foremost cause of
[America’s] rapid progress, its strength, and its greatness.”);
15 U.S.C. § 631 (“The essence of the American economic
system of private enterprise is free competition. . . . The
preservation and expansion of such competition is basic not
only to the economic well-being but to the security of this
Nation.”). It would be a renunciation of the American
Dream.
MACEDO TEMPLOS V. WILKINSON 17
The majority does not cite to any Ninth Circuit precedent
to the contrary. Nor is this position at odds with BIA’s
holding in Matter of Acosta, 19 I. & N. Dec. 211, 234 (BIA
1985), to which we have favorably cited. See Henriquez-
Rivas v. Holder, 707 F.3d 1081, 1084 (9th Cir. 2013). In
Matter of Acosta, the BIA held that the characteristic of
being a taxi driver is not “immutable because the members
of the group could avoid the threats of the guerrillas . . . by
changing jobs.” 19 I. & N. Dec. at 23. BIA explained: “It
may be unfortunate that the respondent either would have
had to change his means of earning a living or cooperate with
the guerrillas in order to avoid their threats. However, the
internationally accepted concept of a refugee simply does
not guarantee an individual a right to work in the job of his
choice.” This holding stands only for the proposition that a
person’s choice of profession is not immutable. We have
never said that the desire to work in any profession is
mutable, or more to the point, that ownership of a business
cannot be an immutable characteristic. And I would not do
so here.
I agree that this Petitioner failed to show “wealthy
business owner” is a cognizable PSG on the basis of the
particularity and social distinction prongs. What Macedo
Templos has gained in describing generally an immutable
characteristic, he has lost in delineating a particular and
socially distinct group. These comparatively
straightforward findings make the majority’s holding as to
immutability unnecessary as well as misguided. I would
rather the majority follow our previous examples in avoiding
making unnecessary, categorical declarations as to whether
a characteristic is immutable when the petitioner’s clear
failure to establish particularity and social distinction makes
doing so unnecessary. See Cordoba v. Barr, 962 F.3d 479,
483 (9th Cir. 2020) (holding “Columbian wealthy
18 MACEDO TEMPLOS V. WILKINSON
landowners” lacked social distinction but refraining from
holding the proposed characteristic was not immutable);
Mevlyudov v. Barr, 821 F. App’x 737, 739 (9th Cir. 2020)
(unpublished) (holding “Ukrainian car salesmen” lacks
particularity and social distinction but refraining from
holding the proposed characteristic was not immutable);
Palacios-Palacios v. Barr, 814 F. App’x 227, 229 (9th Cir.
2020) (unpublished) (holding “Salvadoran women who are
single mothers with children, who own a small business in
rural El Salvador, and whose partners are residing in the
United States” lacks social distinction but refraining from
holding the proposed characteristic was not immutable).
I would not establish precedent that would prevent other
PSGs from obtaining asylum or withholding of removal
status—ones that do meet those requirements of particularity
and social distinction—on the basis that a desire for self-
determination and successful entrepreneurship is something
that a person should be required to forsake.