Fernando Rodriguez-Rodas v. Merick Garland


NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 15 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT FERNANDO RODRIGUEZ-RODAS, No. 20-72542 Petitioner, Agency No. A206-628-399 v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted December 10, 2021** Seattle, Washington Before: McKEOWN, MILLER, and BADE, Circuit Judges. Fernando Rodriguez-Rodas, a native and citizen of El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) decision dismissing his appeal from the Immigration Judge’s denial of his application for asylum, withholding of removal, and protection under the Convention against Torture * 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). (“CAT”). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition. We review an agency’s factual findings for substantial evidence, and “[t]he agency’s ‘findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’” Nasrallah v. Barr, 140 S. Ct. 1683, 1692 (2020) (quoting 8 U.S.C. § 1252(b)(4)(B)). We review de novo the agency’s conclusions of law. See Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017) (en banc). 1. Rodriguez-Rodas contends he is entitled to asylum and statutory withholding of removal based on his membership in the particular social group of “Salvadoran material witnesses of gang crimes.”1 See 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A) (asylum); 1231(b)(3) (withholding of removal). A claim of asylum or withholding of removal based on membership in a particular social group requires the applicant to “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. 227, 237 (BIA 2014)). The BIA permissibly rejected the proposed particular social group 1 Rodriguez-Rodas also sought relief based on membership in another social group and imputed political opinion, but the agency’s related rulings are not before us. 2 “Salvadoran material witnesses to gang crimes” as not cognizable because it lacks sufficient particularity. Cf. Nguyen v. Barr, 983 F.3d 1099, 1103–04 (9th Cir. 2020) (rejecting proposed group of “known drug users” as “amorphous, overbroad, diffuse, or subjective”). The record evidence does not compel the conclusion that the terms “material witness” and “gang crimes” have “commonly accepted definitions” in Salvadoran society. Reyes, 842 F.3d at 1135 (recognizing that a particularity requires “that a particular social group have clear boundaries and that its characteristics have commonly accepted definitions”); cf. Henriquez-Rivas v. Holder, 707 F.3d 1081, 1093 (9th Cir. 2013) (observing that membership in social group of “those who had testified against M–18 gang members in open court” could be easily verified and delimited through court records documenting …

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