Case: 21-929, 04/19/2023, DktEntry: 39.1, Page 1 of 5 NOT FOR PUBLICATION FILED APR 19 2023 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT FABRICIO LOPEZ-FRANCO, No. 21-929 Petitioner, Agency No. A208-412-425 v. MEMORANDUM MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted April 17, 2023 San Francisco, California Before: VANDYKE and SANCHEZ, Circuit Judges, and VRATIL, District Judge. Petitioner Fabricio Lopez-Franco, a native and citizen of Mexico, seeks review of a decision of the Board of Immigration (“BIA”) affirming the decision 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 Kathryn H. Vratil, United States District Judge for the District of Kansas, sitting by designation. Case: 21-929, 04/19/2023, DktEntry: 39.1, Page 2 of 5 of the Immigration Judge (“IJ”), who denied his applications for asylum, withholding of removal, protection under the Convention Against Torture (“CAT”), cancellation of removal, and special rule cancellation.1 We have jurisdiction under 8 U.S.C. § 1252 and deny the petition for review. We review agency denials of asylum and withholding of removal for substantial evidence, i.e. whether agency findings are “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Yali Wang v. Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017) (quotation marks and citations omitted). The agency’s “factual findings are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” Villavicencio v. Sessions, 904 F.3d 658, 663–64 (9th Cir. 2018) (quotation marks and citation omitted). Whether a group constitutes a particular social group is a question of law we review de novo. Santos-Ponce v. Wilkinson, 987 F.3d 886, 890 (9th Cir. 2021). 1. The BIA denied petitioner’s asylum and withholding of removal claims based on the particular social group of “men resisting gang recruitment” on the ground that the group was not cognizable. We have previously rejected proposed particular social groups based on resistance to gang recruitment for lack of social distinction and/or particularity. See Santos-Ponce, 987 F.3d at 1 Petitioner does not challenge the BIA’s denial of CAT protection. 2 Case: 21-929, 04/19/2023, DktEntry: 39.1, Page 3 of 5 890; Ramos-Lopez v. Holder, 563 F.3d 855, 861–62 (9th Cir. 2009). We conclude that petitioner failed to show that his proposed social group of “men resisting gang recruitment” is socially distinct and defined with particularity. 2. Substantial evidence supports the BIA’s determination that petitioner’s relationship to his brother did not give rise to a well-founded fear of harm. Relying on Circu v. Gonzales, 450 F.3d 990 (9th Cir. 2006), petitioner contends that the IJ and BIA impermissibly assumed facts not in the record— namely, that his other siblings who remain in Mexico have not been harmed— reliance on which petitioner had received no …
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