Molina-Socorro v. Garland ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 14 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ROBERTO MOLINA-SOCORRO, No. 21-1416
Agency No.
Petitioner, A205-314-131
v.
MEMORANDUM*
MERRICK B. GARLAND, Attorney
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 8, 2023**
Pasadena, California
Before: GRABER and OWENS, Circuit Judges, and TUNHEIM, District Judge.***
Petitioner Jose Roberto Molina-Socorro, a native and citizen of El Salvador,
petitions for review of the Board of Immigration Appeals’ (“BIA”) decision to
*
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 John R. Tunheim, United States District Judge for the
District of Minnesota, sitting by designation.
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affirm an Immigration Judge’s (“IJ”) denial of his applications for asylum,
withholding of removal, and protection under the Convention Against Torture
(“CAT”). We have jurisdiction under 8 U.S.C. § 1252(a)(1). We deny the
petition.
Where the BIA adopts the decision of the IJ while adding its own reasoning,
this court reviews both decisions and treats any additional findings by the BIA as
part of the final agency decision. Arteaga-De Alvarez v. Holder, 704 F.3d 730,
735 (9th Cir. 2012). “We review purely legal questions de novo, and the agency’s
factual findings for substantial evidence.” Perez-Portillo v. Garland, 56 F.4th 788,
792 (9th Cir. 2022). Under the substantial evidence standard, “administrative
findings of fact are conclusive unless any reasonable adjudicator would be
compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B).
In regard to Petitioner’s asylum claim, substantial evidence supports the
BIA’s finding that Petitioner did not demonstrate exceptional circumstances that
excuse his untimely asylum application. Where the agency held that the
petitioner’s application for asylum was untimely, our jurisdiction to review is
limited to the BIA’s determination of whether the undisputed facts constituted
“changed or extraordinary circumstances.” Al Ramahi v. Holder, 725 F.3d 1133,
1138 (9th Cir. 2013). The agency specifically considered Petitioner’s argument
that financial ability is an exceptional circumstance that excuses missing the one-
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year filing deadline but properly concluded “that not having the money to apply for
asylum and applying for [asylum] a decade later does not constitute an exceptional
circumstance.” Petitioner failed to demonstrate that his financial ability is an
extraordinary circumstance that excuses the one-year bar. See id. at 1139(rejecting the petitioners’ claim that they lacked funds to hire an attorney because
they “could have filed asylum applications themselves, sought pro bono counsel or
other assistance, or contacted immigration authorities”). Therefore, Petitioner’s
asylum claim is denied.
As for Petitioner’s withholding of removal claim, substantial evidence
supports the agency’s determination that Petitioner was ineligible for withholding
of removal because his proposed social group of Salvadoran youth who have
rejected or resisted recruitment efforts by MS-13 is not cognizable. Barrios v.
Holder, 581 F.3d 849, 854 (9th Cir. 2009) (“[R]esistance to gang membership is
not a protected ground.”), abrogated on other grounds by Henriquez-Rivas v.
Holder, 707 F.3d 1081, 1093 (9th Cir. 2013) (en banc); Ramos-Lopez v. Holder,
563 F.3d 855, 862 (9th Cir. 2009) (“[W]e hold that young Honduran men who
have been recruited by gangs but refuse to join do not constitute a particular social
group.”), abrogated on other grounds by Henriquez-Rivas, 707 F.3d at 1093;
Santos-Lemus v. Mukasey, 542 F.3d 738, 745–46 (9th Cir. 2008) (“[W]e hold that
the group that Santos–Lemus describes, young men in El Salvador resisting gang
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violence, is too loosely defined to meet the requirement for particularity.”),
abrogated on other grounds by Henriquez-Rivas, 707 F.3d at 1093. Petitioner’s
proposed social group is foreclosed by precedent, and he fails to show any reason
for us to depart from those prior decisions.
Petitioner argues, as he did to the BIA, that the IJ should have considered
that he received an actual death threat from the gang and that he will be perceived
as a wealthy American in assessing whether he belongs to a particular social group.
To the extent that Petitioner seeks to alter the scope of his particular social group
by referring to a death threat and to his being perceived as a wealthy American, the
BIA permissibly declined to consider the newly proposed social group because
Petitioner did not make that argument before the IJ. See Honcharov v. Barr, 924
F.3d 1293, 1297 (9th Cir. 2019) (per curiam) (“[T]he Board did not err when it
declined to consider Honcharov’s proposed particular social groups that were
raised for the first time on appeal.”). Because the issue of whether Petitioner’s
proposed social group is dispositive, we need not reach whether the agency erred
in declining to consider the actual death threat for the purpose of past persecution.
PETITION DENIED. The stay of removal will remain in place until the
mandate issues.
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