NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 22 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT DIANA CAROLINA ORTIZ-CHAVEZ and No. 17-70345 ESTEVEN WILFREDO MEJIA-ORTIZ, AKA Steven Wilfredo Mejia-Ortiz, Agency Nos. A206-844-778 A206-844-779 Petitioners, v. MEMORANDUM* WILLIAM P. BARR, Attorney General Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted February 13, 2019** San Francisco, California Before: McKEOWN, W. FLETCHER, and MURGUIA, Circuit Judges. Diana Ortiz-Chavez and her minor son, Steven Mejia-Ortiz (collectively, “Petitioners”), petition for review of the Board of Immigration Appeals’ (“BIA”) decision affirming the Immigration Judge’s (“IJ”) denial of their application for * 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). asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). Because the parties are familiar with the facts, we do not recite them here. We have jurisdiction under 8 U.S.C. § 1252. We deny the petition. Petitioners sought asylum and withholding of removal based on a proposed particular social group of “Salvadorans who witness murder by gang members[,] have been threatened with death, [and] lack police protection.” After affording Petitioners an opportunity to submit additional evidence supporting this proposed particular social group, the IJ concluded that Petitioners failed to demonstrate that the group was socially distinct within Salvadoran society. The BIA dismissed the appeal on the same basis. Reviewing de novo this question of law, Pirir-Boc v. Holder, 750 F.3d 1077, 1081 (9th Cir. 2014), we agree that Petitioners failed to show social distinction. We have held that a proposed particular social group of “those who testified in court against gang members” could be sufficiently distinct—provided the petitioner presents sufficient evidence of social distinction. Henriquez-Rivas v. Holder, 707 F.3d 1081, 1092–93 (9th Cir. 2013) (en banc). But here, Petitioners did not testify in court or even speak with police, and the record contains no “evidence showing that society in general perceives, considers, or recognizes persons sharing the particular characteristic”—i.e., witnesses to gang murder who receive a death threat and lack police protection—“to be a group.” Matter of 2 W-G-R-, 26 I. & N. Dec. 208, 217 (BIA 2014). The BIA and IJ performed the requisite evidence-based inquiry and correctly concluded that Ortiz-Chavez had not shown her proposed particular social group is socially distinct. Pirir-Boc, 750 F.3d at 1084. The BIA did not err by rejecting Petitioners’ alternative grounds for asylum and withholding of removal. When the IJ clarified Petitioners’ claims, counsel for Petitioners identified the particular social group discussed above as the only basis for asylum and withholding of removal. Ortiz-Chavez also testified that she had never belonged to or supported any political parties or student groups. The BIA permissibly declined to consider Petitioners’ arguments, pursued for the first time on appeal, that a different particular social group or ...
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