Opinion
17-70320
10-25-2022
JOSE WILBUR TORRES-AYALA, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted October 21, 2022 [**] San Francisco, California
On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A208-276-527
Before: HAWKINS, BEA, and NGUYEN, Circuit Judges.
MEMORANDUM [*]
Jose Wilbur Torres-Ayala, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals's ("BIA") dismissal of his appeal of the immigration judge's ("IJ") order denying his application for asylum, withholding of removal, and relief under the Convention Against Torture ("CAT"). We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition.
1. Substantial evidence supports the BIA's finding that Torres-Ayala did not suffer past persecution. Petitioner was threatened by members of the 18th Street Gang on two occasions, neither of which resulted in physical harm. On the first occasion, the members demanded, under threat of death, that Torres-Ayala pay them $20 or join the gang. On the second occasion, the members again requested Torres-Ayala's membership in the gang and threatened to kill him if he did not join. There was no evidence that this threat was ever attempted to be fulfilled. These incidents, considered cumulatively, do not constitute past persecution. Lim v. I.N.S., 224 F.3d 929, 936 (9th Cir. 2000); Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003).
2. The BIA did not err in also finding that Torres-Ayala failed to establish a nexus between his fear of harm and a protected group. Torres-Ayala proposed the social group: "Salvadorian youth fleeing gang violence and attempted recruitment by local gangs. Salvadorian youth taking concrete steps to oppose gang membership and gang authority which the government of El Salvador cannot and/or is not willing to control." The first half of the proposed social group fails because it defines the group based on the harm experienced rather than on a particular characteristic. See Matter of M-E-V-D-, 26 I&N Dec. 227, 242 (BIA 2014). As to the second half of the proposed social group, Torres-Ayala did not prove that he took any concrete steps to avoid gang recruitment. Cf. Henriquez-Rivas v. Holder, 707 F.3d 1081, 1093 (9th Cir. 2013) (en banc). The BIA therefore did not err in denying asylum or withholding of removal. Lopez-Vasquez v. Barr, 775 Fed.Appx. 933, 934 (9th Cir. 2019).
On appeal, Petitioner advances a new social group: "Salvadorian males taking concrete steps to avoid gang membership." (cleaned up) (emphasis added). This court lacks jurisdiction to review this group because it was not considered by the agency, and therefore has not been exhausted. 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004).
3. Substantial evidence supports the BIA's determination that Torres-Ayala is not entitled to CAT relief because he failed to establish a clear probability of torture with government acquiescence. Torres-Ayala presented no evidence that the government of El Salvador acquiesced in any way in the 18th Street Gang's actions. Torres-Ayala therefore failed to demonstrate eligibility for CAT relief. 8 C.F.R. § 208.18(a)(1).
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).