Rafael Guerrero Rodriguez v. Merrick Garland

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 31 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT RAFAEL ANTONIO GUERRERO No. 20-71629 RODRIGUEZ, Agency No. A202-076-066 Petitioner, v. MEMORANDUM* MERRICK B. GARLAND, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Argued and Submitted January 24, 2023 San Francisco, California Before: GOULD, RAWLINSON, and BRESS, Circuit Judges. Rafael Antonio Guerrero Rodriguez (“Guerrero Rodriguez” or “Petitioner”) is a native and citizen of El Salvador. When he entered the United States, he did not possess or present any valid immigrant visa or reentry permit, and he was not admitted or paroled after inspection by an immigration officer. He was served a Notice to Appear (“NTA”) in September 2014. In November 2016, Guerrero * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Rodriguez admitted to the factual allegations and conceded the charge of removability in the NTA. He requested relief in the forms of asylum, withholding of removal, and protection under the Convention Against Torture (“CAT”). The Immigration Judge (“IJ”) heard Guerrero Rodriguez’s case on July 12, 2018 and denied his application for relief. Guerrero Rodriguez appealed to the Board of Immigration Appeals (“BIA”), which affirmed the IJ’s decision without an opinion. We have jurisdiction under 8 U.S.C. § 1252 and deny in part and dismiss in part the petition for review. In cases where the BIA affirms the IJ’s decision without an opinion, the IJ’s decision becomes the BIA’s decision, and we evaluate the IJ’s decision as we would that of the Board. Lanza v. Ashcroft, 389 F.3d 917, 925 (9th Cir. 2004). “Whether a group constitutes a particular social group is a question of law,” which we review de novo. Cordoba v. Barr, 962 F.3d 479, 482 (9th Cir. 2020) (internal quotations omitted) (quoting Pirir-Boc v. Holder, 750 F.3d 1077, 1081 (9th Cir. 2014)). The applicant has the burden to demonstrate the existence of a cognizable particular social group (“PSG”), their membership in that PSG, and a risk of persecution on account of their membership in the specified PSG. See Henriquez- Rivas v. Holder, 707 F.3d 1081, 1083 (9th Cir. 2013) (en banc). 1. We lack jurisdiction to consider Guerrero Rodriguez’s contention that the IJ “mischaracterized” his proposed social group because he failed to raise this issue 2 before the BIA. We accordingly dismiss the petition with respect to this issue. See 8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004). 2. Petitioner’s proposed social group comprised of “Salvadoran youth targeted for gang recruitment” is not cognizable. The Board has previously interpreted the phrase “particular social group” to refer to a group that is “(1) composed of members who share a common immutable characteristic, (2) defined with particularity, and (3) socially distinct within the society in question.” See Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014). Here, …

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