NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 24 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT JULIAN CAPETILLO, No. 16-72634 Petitioner, Agency No. A206-357-362 v. MEMORANDUM* MATTHEW G. WHITAKER, Acting Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 18, 2018** San Francisco, California Before: GOULD and BERZON, Circuit Judges, and BLOCK,*** District Judge. Julian Capetillo, a native citizen of Mexico, petitions for review of the decision of the Board of Immigration Appeals (“BIA”), which affirmed a decision * 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 Frederic Block, United States District Judge for the Eastern District of New York, sitting by designation. of the Immigration Judge (“IJ”), denying his applications for asylum and withholding of removal and ordering him removed from the United States.1 Capetillo argues that he is eligible for asylum and withholding of removal because he is a member of a particular social group—namely, persons who report gang-related murders to authorities. Whether a group constitutes a “particular social group” is a question of law, which we review de novo. See Mendoza– Alvarez v. Holder, 714 F.3d 1161, 1163 (9th Cir. 2013) (per curiam). Because the Immigration and Nationality Act (“INA”) does not define the term “particular social group,” the BIA’s construction of the term is entitled to deference under Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Henriquez–Rivas v. Holder, 707 F.3d 1081, 1087 (9th Cir. 2013) (en banc); Lezama–Garcia v. Holder, 666 F.3d 518, 524 (9th Cir. 2011). To establish the existence of a particular social group, a petitioner must show 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.” Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014). To show “social distinction,” the petitioner must present evidence showing that society in general perceives, considers, or recognizes persons sharing the particular 1 The BIA also affirmed the IJ’s finding that Capetillo did not qualify for protection under the Convention Against Torture, but Capetillo does not challenge the BIA’s decision on that ground for potential relief, so we do not discuss it. 2 characteristic to be a group. See Matter of W-G-R-, 26 I. & N. Dec. 208, 216–17 (BIA 2014), vacated in part on other grounds by Reyes v. Lynch, 842 F.3d 1125 (9th Cir. 2016). The BIA concluded, and we agree, that Capetillo has not established that his proposed social group is socially distinct. At his merits hearing, Capetillo testified that he saw the gang-related murder of his cousin in 2011 while he was living in San Jose, California. He testified that he reported the murder to authorities ...
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