Opinion
20-71003
10-25-2022
ROBERTO CARLOS VALENCIA-GAMEZ, Petitioner, v. MERRICK B. GARLAND, Attorney General, Respondent.
NOT FOR PUBLICATION
Submitted October 19, 2022 [**] Pasadena, California
On Petition for Review of an Order of the Board of Immigration Appeals, Agency No. A208-539-075
Before: KLEINFELD, CHRISTEN, and BUMATAY, Circuit Judges.
MEMORANDUM [*]
Roberto Carlos Valencia-Gamez, a native and citizen of El Salvador, petitions for review of the denial of his application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). We have jurisdiction pursuant to 8 U.S.C. § 1252(a) and deny Valencia-Gamez's petition.
Because the parties are familiar with the facts, we recite only those facts necessary to decide the petition.
Where, as here, the Board of Immigration Appeals (BIA) affirms the immigration judge (IJ)'s determination and cites Matter of Burbano, 20 I. &N. Dec. 872 (BIA 1994), "we review the IJ's decision as if it were the BIA's." Hakopian v. Mukasey, 551 F.3d 843, 846 (9th Cir. 2008). We review the denial of asylum, withholding of removal, and CAT claims for substantial evidence, and "must uphold the agency determination unless the evidence compels a contrary decision." Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 2019).
1. The IJ's asylum and withholding of removal decisions are supported by substantial evidence. See Davila v. Barr, 968 F.3d 1136, 1142 (9th Cir. 2020) ("An applicant who fails to satisfy the lower standard for asylum necessarily fails to satisfy the more demanding standard for withholding of removal."). First, the IJ's finding that Valencia-Gamez's proposed social group lacks particularity is supported by substantial evidence. See Diaz-Reynoso v. Barr, 968 F.3d 1070, 1077 (9th Cir. 2020) ("[T]he particularity inquiry recognizes that the social group must be defined by characteristics that provide a clear benchmark for determining who falls within the group, such that the group possesses 'discrete and . . . definable boundaries.'" (second alteration in original) (quoting Matter of M-E-V-G-, 26 I. &N. Dec. 227, 239 (BIA 2014))).
Even assuming Valencia-Gamez demonstrated past persecution based on protected grounds, the record supports the IJ's finding that Valencia-Gamez could reasonably relocate within El Salvador to avoid future persecution. After Valencia-Gamez was threatened, Valencia-Gamez, his mother, and his sister, moved to Cojutepeque, five hours from Valencia-Gamez's hometown, and since moving to Cojutepeque, Valencia-Gamez's mother and sister have neither been harmed nor had any contact with the gang members who threatened Valencia-Gamez. Indeed, Valencia-Gamez testified that he lived in Cojutepeque for some period with his family and the gang members never found or contacted him. There is ample support for the IJ's finding that Valencia-Gamez could reasonably relocate to avoid future persecution, and thus, he is not entitled to asylum or withholding of removal. See 8 C.F.R. § 1208.13(2)(ii) (2017).
2. The IJ's denial of Valencia-Gamez's CAT claim is supported by substantial evidence. The IJ reasonably found that Valencia-Gamez could relocate, there was nothing in the record to suggest that he would encounter the same gang members if he returned to El Salvador, and his family had not faced any harm after Valencia-Gamez left, despite the gang's threats. See 8 C.F.R. § 1208.16(c)(3). The IJ's determination that Valencia-Gamez failed to show that it is more likely than not that he would be subjected to torture is supported by substantial evidence.
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).