NANCY DIAZ-LOPEZ V. MERRICK GARLAND, No. 15-71930 (9th Cir. 2022)
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FILED NOT FOR PUBLICATION MAY 20 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT NANCY PAOLA MARICELA DIAZLOPEZ; LUIS ANGEL GARCIAMACARIO; et al., No. 15-71930 Agency Nos. Petitioners, v. A206-793-525 A206-793-533 A205-254-638 MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted May 17, 2022** Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges. Nancy Paola Maricela Diaz-Lopez, Luis Angel Garcia-Macario, and their minor daughter, natives and citizens of Guatemala, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their appeal from an * 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). immigration judge’s (“IJ”) decision denying their applications for asylum and denying Diaz-Lopez’s and Garcia-Macario’s applications for withholding of removal and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252. We review de novo the legal question of whether a particular social group is cognizable, except to the extent that deference is owed to the BIA’s interpretation of the governing statutes and regulations. Conde Quevedo v. Barr, 947 F.3d 1238, 1241-42 (9th Cir. 2020). We review for substantial evidence the agency’s factual findings. Id. at 1241. “Where, as here, the Board incorporates the IJ’s decision into its own without citing Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), this court will review the IJ’s decision to the extent incorporated.” Medina-Lara v. Holder, 771 F.3d 1106, 1111 (9th Cir. 2014). We deny the petition for review. The agency did not err in finding that Garcia-Macario did not establish membership in a cognizable particular social group related to his resistance to gang recruitment. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (in order to demonstrate membership in a particular social group, “[t]he applicant must ‘establish that the group is (1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question’”) (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014))); see also Barrios v. Holder, 581 F.3d 849, 855 (9th Cir. 2 15-71930 2009) (proposed group of young males in Guatemala who are targeted for gang recruitment not cognizable), abrogated on other grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081, 1093 (9th Cir. 2013) (en banc). Substantial evidence supports the agency’s conclusion that all Petitioners otherwise failed to establish they would be persecuted on account of a protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (an applicant’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”). Thus, all Petitioners’ asylum claims and Diaz-Lopez’s and Garcia-Macario’s withholding of removal claims fail. Substantial evidence supports the agency’s denial of CAT protection because Diaz-Lopez and Garcia-Macario failed to show it is more likely than not they will be tortured by or with the consent or acquiescence of the government if returned to Guatemala. See Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009). The temporary stay of removal remains in place until issuance of the mandate. PETITION FOR REVIEW DENIED. 3 15-71930
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