NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 6 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT IDANIA PATRICA ARCHILA- No. 20-71605 PORTILLO; et al., Agency Nos. A203-607-953 Petitioners, A203-607-954 A203-607-955 v. MERRICK B. GARLAND, Attorney MEMORANDUM* General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted August 2, 2021 Pasadena, California Before: PAEZ, CALLAHAN, and OWENS, Circuit Judges. Idania Patricia Archila-Portillo (“Archila-Portillo”) and her two daughters, Idania Michelle Ponce-Archila and Genesis Nicolle Ponce-Archila1, petition for review of the Board of Immigration Appeals’ (“BIA”) order dismissing their * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. 1 Because Archila-Portillo’s daughters are derivative beneficiaries of her asylum application, our references to “Archila-Portillo” also include her daughters unless otherwise indicated. appeal from a decision of an Immigration Judge (“IJ”) denying Archila-Portillo’s application for asylum, withholding of removal, protection under the Convention Against Torture (“CAT”), and ordering them removed to Honduras under 8 U.S.C § 1182(a)(7)(A)(i)(I). We grant the petition in part, deny it in part, and remand for further proceedings. We have jurisdiction under 8 U.S.C. § 1252(a)(5). Where the BIA adopts and affirms the IJ’s decision pursuant to Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994), as here, we review the IJ’s decision to the extent it is adopted by the BIA. Joseph v. Holder, 600 F.3d 1235, 1239-40 (9th Cir. 2010). 1. Archila-Portillo argues that she should be classified as an “alien present in the United States without being admitted or paroled” under 8 U.S.C § 1182(a)(6)(A)(i) because she entered the United States before allegedly being coerced by the Department of Homeland Security (“DHS”) into conceding her removability under 8 U.S.C § 1182(a)(7)(A)(i)(I). The BIA declined to address this argument, noting that DHS’ decision to remove Archila-Portillo to Mexico pursuant to the Migrant Protection Protocol was a matter committed to DHS’ prosecutorial discretion and not subject to the BIA’s review. Because Archila- Portillo is removable under either statute, she is unable to show that the outcome of her proceeding was affected by DHS charging her as removable under 8 U.S.C § 2 1182(a)(7)(A)(i)(I) instead of 8 U.S.C § 1182(a)(6)(A)(i). As a result, the BIA did not err in declining to address the merits of this issue. 2. Archila-Portillo seeks asylum and withholding of removal on the basis of the persecution she experienced on account of her membership in a particular social group. To demonstrate membership in a particular social group, “[t]he applicant 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. 227, 237 (BIA 2014)). Archila-Portillo alleged that she was a member of six different social groups, namely: 1) “women in …
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