ORTEGA AMAYA v. BARR (2019)

MEMORANDUM **

Celso Amerit Ortega-Amaya (“Ortega-Amaya”), a native and citizen of El Salvador, petitions for review of a Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an immigration judge’s decision denying his application for withholding of removal under the Immigration and Nationality Act (“INA”) and protection under the Convention Against Torture (“CAT”). We have jurisdiction under 8 U.S.C. § 1252 and we deny the petition.

Whether a group constitutes a “particular social group” is a question of law that we review de novo, Perdomo v. Holder, 611 F.3d 662, 665 (9th Cir. 2010), but we defer to the BIA’s interpretation of governing statutes and regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We review for substantial evidence the agency’s factual findings. See Silva-Pereira v. Lynch, 827 F.3d 1176, 1184 (9th Cir. 2016).

The BIA did not err in finding that Ortega-Amaya has not established membership in a cognizable social group. See Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (explaining cognizability standard) (citing Matter of M-E-G-V-, 26 I & N Dec. 227, 237 (BIA 2014)). Ortega-Amaya has not established that men targeted for recruitment by criminal gangs in El Salvador would be perceived by society or criminal gangs as a particular social group. See Santos-Lemus v. Mukasey, 542 F.3d 738, 744-46 (9th Cir. 2008) (men in El Salvador resisting gang violence is not a particular social group), abrogated in part by Henriquez-Rivas v. Holder, 707 F.3d 1081, 1093 (9th Cir. 2013). Ortega-Amaya also has not established that men returning to El Salvador after lengthy absences would be perceived by society or criminal gangs as a particular social group. See Reyes, 842 F.3d at 1138-40 (deportees from the United States to El Salvador is not a particular social group). Thus, Ortega-Amaya’s withholding of removal claim fails.

Substantial evidence also supports the agency’s denial of CAT relief. The record does not compel the conclusion that Ortega-Amaya is “more likely than not” to be tortured by or with the consent or acquiescence of the government if he returns to El Salvador. See 8 C.F.R. § 1208.16(c)(2); see also Aden v. Holder, 589 F.3d 1040, 1047 (9th Cir. 2009). Thus, Ortega-Amaya’s CAT claim also fails.

PETITION FOR REVIEW DENIED.