Opinion
21-70120
10-26-2022
MILAGRO DE MARIA PINEDA GARCIA; X.I.H.P., Petitioners, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Argued and Submitted October 18, 2022 Seattle, Washington
On Petition for Review of an Order of the Board of Immigration Appeals Agency Nos. A209-849-628, A209-849-629
Before: TALLMAN, R. NELSON, and FORREST, Circuit Judges.
MEMORANDUM [*]
Petitioners Milagro de Maria Pineda Garcia and her minor son X.I.H.P., citizens of El Salvador, seek review of the Board of Immigration Appeals' (BIA) denial of asylum and protection under the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C. § 1252(a), and we deny the petition.
Pineda Garcia's son filed a separate application for relief, but his claims are based on Pineda Garcia's experience.
Where the BIA issues a "Burbano affirmance, we review the IJ's [(immigration judge)] decision as if it were the decision of the BIA." Ahmed v. Holder, 569 F.3d 1009, 1012 (9th Cir. 2009).
1. Asylum. Pineda Garcia based her asylum claim on "membership in a particular social group [(PSG)]." Rodriguez Tornes v. Garland, 993 F.3d 743, 750 (9th Cir. 2021) (quoting 8 U.S.C. § 1101(a)(42)(A)). Whether a group is a PSG is a question of law. Cordoba v. Barr, 962 F.3d 479, 482 (9th Cir. 2020). To constitute a PSG, the group must be, among other things, "socially distinct within the society in question." Macedo Templos v. Wilkinson, 987 F.3d 877, 882 (9th Cir. 2021) (citation omitted). "The BIA's conclusion regarding social distinction-whether there is evidence that a specific society recognizes a social group-is a question of fact that we review for substantial evidence." Conde Quevedo v. Barr, 947 F.3d 1238, 1242 (9th Cir. 2020).
Here, substantial evidence supports the IJ's conclusion that Pineda Garcia's PSG articulated to the IJ-"witnesses to the murder of relatives committed by the MS-13 in El Salvador"-is not socially distinct. Pineda Garcia's proposed PSG is therefore not cognizable. See Aguilar-Osorio v. Garland, 991 F.3d 997, 999-1000 (9th Cir. 2021).
Pineda Garcia argues that the agency erred in declining to consider the broader social group of "witnesses to crimes committed by Salvadoran gangs who publicly assisted (or are perceived as assisting) law enforcement," that she first raised on appeal to the BIA. The BIA did not err in finding that her alternative late-raised PSG was procedurally defaulted. See Honcharov v. Barr, 924 F.3d 1293, 1296-97 (9th Cir. 2019) (per curiam). Nor did the IJ err in assessing the PSG that Pineda Garcia did present as she presented it. See Diaz-Reynoso v. Barr, 968 F.3d 1070, 1084 (9th Cir. 2020) (citing Matter of W-Y-C- & H-O-B-, 27 I. &N. Dec. 189, 191-92 (BIA 2018) for the proposition that the burden is on petitioner to "delineate his or her proposed social group before the IJ").
2. CAT Relief. The agency's denial of CAT protection is reviewed for substantial evidence. See Lalayan v. Garland, 4 F.4th 822, 840 (9th Cir. 2021). Substantial evidence supports the IJ's conclusion that Pineda Garcia failed to establish it is more likely than not that she would be tortured if removed to El Salvador. See Xochihua-Jaimes v. Barr, 962 F.3d 1175, 1183 (9th Cir. 2020) (explaining that "an applicant bears the burden of establishing that she will more likely than not be tortured . . . if removed to her native country"). A likelihood of future torture here is speculative and substantial evidence supports the conclusion that Pineda Garcia failed to establish that she particularly would be tortured if removed to El Salvador. See Delgado-Ortiz v. Holder, 600 F.3d 1148, 1152 (9th Cir. 2010) ("[G]eneralized evidence of violence and crime . . . is not particular to Petitioners and is insufficient to meet th[e CAT] standard.").
PETITION DENIED.
[*] This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.