Opinion
17-70378
11-09-2022
ALVARO DIAZ, AKA Alvaro Alexander Diaz, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted November 7, 2022 [**] Pasadena, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A087-682-753
Before: PARKER, [***] KOH, and SUNG, Circuit Judges.
MEMORANDUM [*]
Alvaro Diaz ("Diaz"), a native and citizen of Guatemala, seeks review of a decision of the Board of Immigration Appeals ("BIA") affirming the denial by an immigration judge ("IJ") of Diaz's application for withholding of removal. Diaz contends that he fears future persecution based on his membership in the particular social group of individuals "who ha[ve] been threatened by a dangerous and volatile individual" and "may be a potential target for harassment" because they have "expressed disagreement with the criminal way of life." We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
1. We previously denied Diaz's petition for review of the agency's decision that he was ineligible for asylum or protection under the Convention Against Torture. Diaz v. Holder, 584 Fed.Appx. 898, 899 (9th Cir. 2014). However, we remanded so that the BIA could consider the impact, if any, of intervening decisions from this court and the BIA on Diaz's withholding of removal claim.
Issue preclusion principles therefore foreclose Diaz from relitigating these claims in the instant petition, as he attempts to do in his briefing. See In re Duncan, 713 F.2d 538, 541-42 (9th Cir. 1983).
2. We now conclude that on remand the BIA did not err in denying Diaz's withholding of removal claim. The BIA found that Diaz failed to establish eligibility for withholding of removal based on his membership in his proposed particular social group. Whether a group constitutes a particular social group "is a question of law we review de novo." Santos-Ponce v. Wilkinson, 987 F.3d 886, 890 (9th Cir. 2021). Whether an applicant has shown that his persecutor would be motivated by his membership in a particular social group is a factual finding reviewed for substantial evidence. Id.
Diaz's proposed social group is not cognizable. Diaz argues that his fear arises from witnessing a shooting in his hometown in Guatemala back in 2000. However, we have held that people who are simply "potential witness[es] to anything that can be characterized as [a] crime committed by a gang member" do not constitute a particular social group. Aguilar-Osorio v. Garland, 991 F.3d 997, 999 (9th Cir. 2021). Diaz also argues that he "expressed disagreement with the criminal way of life," but does not identify any particular actions he took to express that disagreement. Such disagreement is insufficient to constitute a particular social group. Cf. Henriquez-Rivas v. Holder, 707 F.3d 1081, 1083 (9th Cir. 2013) (holding that those who testify against gang members in a criminal trial can constitute a particular social group). To the extent Diaz argues that his disagreement also constitutes an anti-gang political opinion, substantial evidence supports the BIA's finding that Diaz did not in fact express an anti-gang political opinion. See Santos-Lemus v. Mukasey, 542 F.3d 738, 747 (9th Cir. 2008) (petitioner's general aversion to gangs did not constitute a political opinion for asylum purposes), abrogated on other grounds by Henriquez-Rivas, 707 F.3d at 1093.
Moreover, even assuming Diaz's proposed particular social group is cognizable, substantial evidence supports the BIA's finding that Diaz failed to show a nexus between his membership in that group and the harm he fears. As the BIA noted, a friend of Diaz's who witnessed the same shooting remains in Guatemala unharmed. Diaz's family members also remain in Guatemala unharmed, despite their connection to Diaz as a potential witness. The record supports the BIA's determination that Diaz's fear of "criminal and dangerous elements in Guatemala," is fear of generalized violence by criminals, which bears no nexus to a protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) ("An alien'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.").
Although on remand the BIA applied a legal standard that we later overruled, we need not and do not remand again. After the BIA denied Diaz's withholding of removal claim, we held that an applicant for withholding of removal need only show that the protected ground was "a reason" for the feared persecution-not, as the BIA required of Diaz, "one central reason." Barajas-Romero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017). However, because the BIA's decision indicates that there was "no nexus between the harm to [Diaz] and the alleged protected ground," we conclude that "neither the result nor the BIA's basic reasoning would change" even under the correct standard, and therefore we need not remand. Singh v. Barr, 935 F.3d 822, 827 (9th Cir. 2019) (per curiam).
PETITION DENIED.
[*] 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 Barrington D. Parker, Jr., United States Circuit Judge for the U.S. Court of Appeals for the Second Circuit, sitting by designation.