Erik Olivares-Calixto v. Jefferson Sessions

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 16 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT ERIK OLIVARES-CALIXTO, No. 16-71664 Petitioner, Agency No. A087-522-423 v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted November 7, 2017 Portland, Oregon Before: FERNANDEZ, W. FLETCHER, and MELLOY,** Circuit Judges. Erik Olivares-Calixto, a native and citizen of Mexico, petitions for review of an immigration judge’s (IJ) decision that affirmed an asylum officer’s (AO) negative reasonable fear determination. Olivares-Calixto expressed a fear of returning to Mexico during proceedings to reinstate a prior order of removal. He * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Michael J. Melloy, United States Circuit Judge for the U.S. Court of Appeals for the Eighth Circuit, sitting by designation. alleged a fear of persecution as a member of “a particular social group,” 8 U.S.C. § 1231(b)(3)(A), based on his gang tattoos and former gang membership, culturally American upbringing, and status as a “pocho” (a returning, seemingly non-native Mexican). He also alleged a fear of torture. We deny the petition. We review factual findings underlying an IJ’s negative reasonable fear determination for substantial evidence. Andrade-Garcia v. Lynch, 828 F.3d 829, 833 (9th Cir. 2016). Here, we repeat the facts known to the parties only as necessary to explain our decision. We review questions of law de novo. Arteaga v. Mukasey, 511 F.3d 940, 944 (9th Cir. 2007). “Whether a group constitutes a ‘particular social group’ is a question of law.” Pirir-Boc v. Holder, 750 F.3d 1077, 1081 (9th Cir. 2014). I To qualify for withholding of removal, Olivares-Calixto must show his “life or freedom would be threatened” in Mexico on account of his “race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). Olivares-Calixto claims to be a member of the particular social group: “Americanized, male, tattooed, recent gang apostates.” Our court has made clear that Americanized individuals do not constitute a particular social group. See Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1228–29 (9th Cir. 2016) (holding that neither “actual or imputed wealthy Americans” nor 2 “those who are light-skinned, fit, and have American mannerisms or accents” constitutes a particular social group); Delgado-Ortiz v. Holder, 600 F.3d 1148, 1150–52 (9th Cir. 2010) (per curiam) (holding that “Mexicans returning home from the United States who are targeted as victims of violent crime” are not a particular social group). We also have held, generally, that former gang members or persons with gang tattoos do not qualify as a cognizable social group. See Arteaga, 511 F.3d at 945–46 (holding that a “[t]attooed gang member” does not qualify as a member of a particular social group for purposes of withholding of removal, and “the category of non-associated or disaffiliated persons . . . is far too unspecific and amorphous to ...

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