Williams Castro-Donado v. William Barr

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 6 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT WILLIAMS CASTRO-DONADO, No. 18-70461 Petitioner, Agency No. A209-217-021 v. MEMORANDUM* WILLIAM P. BARR, Attorney General, Respondent. On Petition for Review of an Order of the Board of Immigration Appeals Submitted April 2, 2020** Seattle, Washington Before: McKEOWN, N.R. SMITH, and NGUYEN, Circuit Judges. Williams Castro-Donado, a citizen of Venezuela and El Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an Immigration Judge’s (“IJ”) decision denying his application for asylum, withholding of removal, and protection under the Convention Against * 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). Torture (“CAT”). The parties are familiar with the facts, so we do not repeat them here. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition. Asylum is granted when an applicant has a “well-founded fear of persecution on account of . . . membership in a particular social group.” 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A). “Gang membership” and “resistance to gang membership” are not particular social groups for purposes of asylum. See Barrios v. Holder, 581 F.3d 849, 854 (9th Cir. 2009). The gravamen of Castro-Donado’s asylum claim for El Salvador stems from general gang violence. While in El Salvador, Castro-Donado denied affiliating with gang members after he was approached, which led them to believe that he was a member of a rival gang. Despite Castro-Donado’s claim that this makes him part of a distinct social group in his society that “opposes gang violence,” such a group is not cognizable because it lacks particularity and social distinction. See Ramos- Lopez v. Holder, 563 F.3d 855, 862 (9th Cir. 2009) (holding that “young Honduran men who have been recruited by gangs but refuse to join do not constitute a particular social group.”). Castro-Donado has therefore failed to establish the requisite nexus to a protected social group necessary to claim asylum. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“An alien’s desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground.”). 2 We likewise affirm the BIA’s denial of Castro-Donado’s application for withholding of removal. Castro-Donado must show “a clear probability of persecution” on a statutorily protected ground. INS v. Cardoza-Fonseca, 480 U.S. 421, 429–30 (1987). This is a more stringent standard than asylum. Fisher v. INS, 79 F.3d 955, 961 (9th Cir. 1996). Because Castro-Donado is not within a protected class under the asylum analysis, he does not qualify for withholding of removal. Castro-Donado’s CAT claim is meritorious only if he can show that the government, or a government representative, instigated, condoned, or acquiesced to his torture, and “that it is ...

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