Edwin Irias-Aguero v. Eric H. Holder Jr. , 365 F. App'x 798 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 12 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
EDWIN ARTURO IRIAS-AGUERO, No. 08-73688
Petitioner, Agency No. A200-109-920
v.
MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted January 15, 2010
San Francisco, California
Before: NOONAN, HAWKINS and M. SMITH, Circuit Judges.
Petitioner Edwin Arturo Irias-Aguero (“Aguero”), a native and citizen of
Honduras, seeks review of a decision of the Board of Immigration Appeals (“BIA”)
denying his application for asylum, withholding of removal, and relief pursuant to 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.
Aguero claims he was targeted as a member of a “particular social group”:
those who have witnessed gang crimes, or, as they are referred to in Honduras,
“toads.” However, the BIA did not err in concluding that “toads” do not qualify as a
particular social group within the meaning of the Immigration and Nationality Act.
8 U.S.C. § 1101(a)(42)(A). We have previously upheld the BIA’s determination that
young males in Central America who resist gang recruitment are not a particular social
group because they “make up a potentially large and diffuse segment of society” and
lack attributes that are generally visible to society. Ramos-Lopez v. Holder, 563 F.3d
855, 860-61 (9th Cir. 2009). Those who have witnessed criminal acts by gangs are
a potentially even larger and more diffuse group, as they could be of any gender or age
and, although identifiable to other gang members, are not generally visible to society
at large. See Santos-Lemus v. Mukasey, 542 F.3d 738, 745-46 (9th Cir. 2008); see
also Soriano v. Holder, 569 F.3d 1162, 1166 (9th Cir. 2009) (rejecting “government
informants” as a particular social group because they are not a “narrowly defined” or
“cohesive, homogeneous” group). As Aguero does not qualify for asylum on account
of a protected ground, he necessarily does not satisfy the higher standard for
withholding of removal. Mansour v. Ashcroft, 390 F.3d 667, 673 (9th Cir. 2004).
With respect to Aguero’s CAT claim, however, we are unable to ascertain
whether the BIA applied the correct legal standard to the facts of this case. Although
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the BIA quotes the appropriate regulation, it also cites to three decisions interpreting
and applying the regulation, two of which have been overruled. See In re Y-L-, 23 I.
& N. Dec. 270 (A.G. 2002), overruled in part by Zheng v. Ashcroft, 332 F.3d 1186,
1196-97 (9th Cir. 2003) (disapproving to the extent the BIA required actual
knowledge and willful acceptance by government to constitute “acquiescence,” where
Congress intended awareness and willful blindness to suffice), and Khouzam v.
Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004) (same); In re J-E-, 23 I. & N. Dec. 291(BIA 2002) (en banc), overruled by Azanor v. Ashcroft, 364 F.3d 1013, 1020 (9th Cir.
2004) (rejecting BIA’s requirement of custody or physical control of the victim by a
public official).
It is impossible to tell from its opinion whether the BIA applied the correct legal
standard to Aguero’s CAT claim. As we explained in Azanor:
Unfortunately, the Board’s terse conclusion does not disclose whether it
relied on the erroneous state custody requirement when it determined
that [petitioner] “fail[ed] to put forth a prima facie claim for relief under
the [Torture Convention].” . . . Under such circumstances, “the proper
course . . . is to remand to the agency for additional investigation or
explanation.”
364 F.3d at 1021 (quoting INS v. Ventura, 537 U.S. 12, 16 (2002)). Therefore, we
express no opinion as to the merits of Aguero’s CAT claim, but remand for the BIA
to exercise its judgment in the first instance, evaluating the claim under the
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appropriate legal standards. See Vukmirovic v. Ashcroft, 362 F.3d 1247, 1253 (9th
Cir. 2004) (remanding for application of proper legal standard); Kotasz v. INS, 31 F.3d
847, 851, 855 (9th Cir. 1994) ( same).
Finally, Aguero claims that his due process rights were violated because the IJ
heard his testimony on three different days, each separated by a month or more. He
contends this piecemeal proceeding may have impacted the IJ’s adverse credibility
determination. However, as the BIA did not affirm the adverse credibility finding, but
denied relief on an entirely different ground, Aguero has not demonstrated any
prejudice flowing from the IJ’s actions, and his claim must be denied. See Zolotukhin
v. Gonzales, 417 F.3d 1073, 1076 (9th Cir. 2005).
We DENY Aguero’s petition regarding his claims for asylum, withholding of
removal and due process. We GRANT his petition regarding CAT and REMAND
to the BIA for further proceedings consistent with this disposition. Each party to bear
its own costs on appeal.
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