NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 14 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT AXEL OMAR MONTES DE OCA- No. 16-70870 BOLANOS, Agency No. A206-464-032 Petitioner, 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: GILMAN,*** PAEZ, and OWENS, Circuit Judges. Petitioner Axel Omar Montes De Oca-Bolanos (Montes), a native and citizen of Guatemala, alleges that he would be persecuted and tortured by the * 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 Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. Mara-18 gang if he is removed to Guatemala. An immigration judge (IJ) denied Montes’s application for asylum, withholding of removal, and protection under the Convention Against Torture (CAT). The Board of Immigration Appeals (BIA) affirmed. On appeal, Montes argues that the BIA erred in concluding that (1) “current and former bus drivers” is not a “particular social group” eligible for asylum and withholding of removal, and (2) he does not qualify for protection under the CAT. For the reasons set forth below, we DENY Montes’s petition for review. I. Montes’s asylum claim Montes is ineligible for asylum because he has not established persecution on account of a protected ground. See 8 U.S.C. § 1101(a)(42)(A). If an applicant requests asylum based on “membership in a particular social group,” he or she 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.” Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 277, 237 (BIA 2014)). Montes is ineligible for asylum because “current and former bus drivers” is not a cognizable particular social group. This court has repeatedly declined to recognize one’s employment as a particular social group because a person’s job is generally not an immutable or 2 fundamental characteristic. See, e.g., Ochoa v. Gonzales, 406 F.3d 1166, 1170-71 (9th Cir. 2005) (stating that a group of “business owners” did not share an “innate characteristic”), abrogated on other grounds by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc). Being a bus driver is not an immutable characteristic, nor is it fundamental to Montes’s identity or conscience. See Donchev v. Mukasey, 553 F.3d 1206, 1216 (9th Cir. 2009) (stating that a “common immutable characteristic” is an attribute a person “cannot change, or should not be required to change because it is fundamental to their individual identities or consciences” (quoting Matter of Acosta, 19 I & N. Dec. 211, 233 (BIA 1985)). Montes contends, ...
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