Justin Santos-Ponce v. Robert Wilkinson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUSTIN STEEVEN SANTOS-PONCE, No. 18-72433

Petitioner,

Agency No.

v. A206-794-496

ROBERT M. WILKINSON, Acting

Attorney General, OPINION

Respondent.

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted February 1, 2021 *

Pasadena, California

Filed February 10, 2021

Before: Ronald M. Gould, John B. Owens, and

Lawrence VanDyke, Circuit Judges.

Opinion by Judge VanDyke

*

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

2 SANTOS-PONCE V. WILKINSON

SUMMARY **

Immigration

Denying Justin Steeven Santos-Ponce’s petition for

review of the Board of Immigration Appeals’ denial of

asylum and related relief, the panel held that Ponce’s

proposed social group comprised of “minor Christian males

who oppose gang membership” is not cognizable, and that

he failed to establish the requisite nexus between any harm

and his membership in the Santos-Ponce family, or that he

would more likely than not be tortured by the Honduran

government or with government acquiescence.

Addressing Ponce’s first proposed social group

comprised of “minor Christian males who oppose gang

membership,” the panel concluded that the group is not

cognizable because it lacks particularity and social

distinction. Noting that this court previously rejected a

similar social group in Ramos-Lopez v. Holder, 563 F.3d 855

(9th Cir. 2009) (concluding that young Honduran men who

resisted gang recruitment lacked particularity and social

distinction), abrogated in part on other grounds by

Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013)

(en banc), the panel explained that the record does not show

how adding the term “Christian” to minors who oppose gang

membership makes the group sufficiently particular or

socially distinct. The panel wrote that the record lacked

persuasive evidence that there is a viable risk of persecution

in Honduras based on one’s Christian religious beliefs or

**

This summary constitutes no part of the opinion of the court. It

has been prepared by court staff for the convenience of the reader.

SANTOS-PONCE V. WILKINSON 3

practices, and the evidence does not compel the conclusion

that Honduran society would distinguish between a young

Christian male who resists gang recruitment and any other

young man who seeks to avoid gang membership.

Regarding Ponce’s second proposed social group

comprised of members of “the Santos-Ponce family,” the

panel concluded that the record did not contain evidence of

a nexus between the alleged persecution and his membership

in the Santos-Ponce family. The panel explained that while

Ponce’s uncle was killed by gang members, the record did

not contain any evidence that his uncle’s family membership

was one central reason or even a reason that the gang killed

him. In addition, the panel concluded that Ponce’s claim of

future persecution was undermined by the fact that he has

other family members living unharmed in Honduras.

The panel also held that substantial evidence supported

the Board’s conclusion that Ponce was not eligible for CAT

protection. The panel wrote that the agency correctly

observed that Ponce failed to claim any past harm, let alone

torture, and that his uncle’s killing, for unspecified reasons,

combined with the existence of generalized violence in

Honduras, did not compel the conclusion that, upon his

return to Honduras, Ponce would more likely than not

experience torture inflicted by, or at the instigation of, or

with the consent or acquiescence of, a public official or other

person acting in an official capacity.

4 SANTOS-PONCE V. WILKINSON

COUNSEL

Carolina Celina Gomez and Mher Cholakhyan, Law Office

of Carolina C. Gomez, Los Angeles, California, for

Petitioner.

Joseph H. Hunt, Assistant Attorney General; Carl McIntyre,

Assistant Director; Nancy Ellen Friedman, Senior Litigation

Counsel; Office of Immigration Litigation, Civil Division,

United States Department of Justice, Washington, D.C.; for

Respondent.

OPINION

VANDYKE, Circuit Judge:

I.

Justin Steeven Santos-Ponce (Ponce) petitions for

review of the Board of Immigration Appeals’ (BIA) order

dismissing his appeal of an Immigration Judge’s (IJ)

decision denying his applications for asylum and

withholding of removal and request for protection under the

Convention Against Torture (CAT). For the reasons

discussed below, we deny the petition for review.

II. Factual and Procedural Background

Ponce is a 16-year-old native of Honduras who was

placed in removal proceedings soon after he arrived in the

United States in 2014. Ponce initially lived with his mother

in Honduras until he was three years old. When his mother

moved to the United States, three-year-old Ponce went to

live with his grandmother, uncle, and other extended family

members in Honduras.

SANTOS-PONCE V. WILKINSON 5

When Ponce was five years old, his uncle was killed by

gang members. The record contains conflicting evidence

about why his uncle was killed. One part of the record says

that his uncle was killed for unknown reasons, but elsewhere

it says that Ponce’s uncle was killed when his grandmother

did not meet the gang’s demands. Ponce himself never

directly experienced any physical harm or threats of harm

while he lived in Honduras. And even though he is fearful

of returning to Honduras because of the crime rate and gang

activities generally, his grandmother and other family

members continue to live in the country unharmed.

A. IJ Decision

The IJ found Ponce’s testimony credible, and while

Ponce did not suffer past persecution, the IJ determined that

he had a subjective fear of harm. But the IJ also concluded

that Ponce failed to show that he would suffer future harm

based on a protected ground. Specifically, the IJ rejected

Ponce’s argument that he had a well-founded fear of future

persecution because of or on account of being a Christian

and being a member in two proffered particular social groups

(PSGs): (1) “Santos-Ponce family who have been victims of

gang violence”; and (2) “minor Christian males who oppose

gang membership.”

The IJ acknowledged that Ponce had been raised a

Christian, but determined that “the evidence does not

support a finding that [Ponce] faces either a particularized

risk of persecution as a Christian or that there is a pattern or

practice of persecution of Christians.” While the record

contains evidence of “the problem of gang related

recruitment of children and the general gang warfare and

violence” in Honduras, the IJ reasoned that the record lacks

“persuasive evidence that [there is] a viable risk of

6 SANTOS-PONCE V. WILKINSON

persecution based on one’s Christian religious beliefs or

practices.”

With respect to Ponce’s first proposed PSG—“Santos-

Ponce family who have been victims of gang violence”—the

IJ concluded that Ponce inappropriately defined the group by

the harm suffered. But even if defining the group by the

harm suffered was not impermissibly circular, the IJ

explained that Ponce “would not qualify as a member of the

group” because he has not been a victim of gang violence.

Redefining Ponce’s proposed PSG by family relationship

rather than harm suffered, the IJ nonetheless determined that

Ponce failed to “show[] that he faces a well-founded fear of

harm as a member of his family.” At the time of the IJ

hearing, Ponce had family members that continued to live

unharmed in Honduras. The IJ thus concluded that the

record does not “show that [Ponce] faces a particularized

risk of harm” as a result of his family membership.

Regarding Ponce’s second proposed PSG—“minor

Christian males who oppose gang membership”—the IJ

determined Ponce did not “show that the group is

sufficiently socially distinct or particular.” Although the

record shows that gangs targeted some children for

recruitment or violence, the IJ determined that “the evidence

does not support a finding that the respondent’s proposed

group is socially distinct” because gang violence and

recruitment are “complex problem[s] . . . driven by a mixture

of motives.” The IJ also observed that the record does not

clearly define what constitutes opposition to gang violence

or explain the significance of the additional label “minor

Christian male[s],” and it fails to show “how the

combination would be recognized as socially distinct.”

Therefore, the IJ concluded that this proposed PSG was not

cognizable.

SANTOS-PONCE V. WILKINSON 7

Ultimately, the IJ decided that because Ponce’s “fears

are more akin to fears of general civil strife created by the

gang problems in Honduras[,]” these “fears . . . fail to meet

the standard for asylum.” And because he failed to meet the

lesser burden of proof required for asylum, the IJ concluded

that Ponce also failed to meet his burden of proof for

withholding of removal. Ponce was not entitled to CAT

relief, according to the IJ, because there was no evidence that

he was tortured in the past or that he would be tortured in the

future “by any government officials, or anyone acting under

the acquiescence of the government.” 1

B. BIA Decision

The BIA affirmed the denial of Ponce’s asylum,

withholding of removal, and CAT claims, and dismissed his

appeal.

The BIA concluded that the IJ did not clearly err when

she determined that Ponce failed to “establish a nexus to a

protected ground . . . , including membership in a [PSG], or

demonstrate that it was or will be at least one central reason

for the claimed persecution.” Similarly, with respect to

Ponce’s request for withholding of removal, the BIA

determined that Ponce “failed to establish that it is more

likely than not that he would be targeted for persecution on

account of a protected ground.”

Similar to his claims before the IJ, Ponce argued before

the BIA that he would be targeted for persecution on account

1

The IJ held her decision in abeyance to give Ponce an opportunity

to apply for an immigrant visa under the Special Immigrant Juvenile

Status (SIJS) application, but Ponce’s counsel informed the IJ on June

12, 2017 that Ponce was “reunited with his biological father and was no

longer eligible for relief based on an SIJS application.”

8 SANTOS-PONCE V. WILKINSON

of and because of his membership in two proffered PSGs:

(1) “minor Christian males who oppose gang membership”;

and (2) as a member of “the Santos-Ponce family.”

The BIA agreed with the IJ that his first proposed PSG—

“minor Christian males who oppose gang membership”—“is

not defined with sufficient particularity and it has not been

shown to be socially distinct within Honduran society so as

to constitute a cognizable [PSG].”

Regarding his second proposed PSG, the BIA

assumed—without deciding—that Ponce’s “family is a

cognizable social group,” but concluded that the record did

not show that Ponce’s “family relationship itself was ‘one

central reason’ or constituted ‘a reason’ the gang would have

targeted [Ponce’s] family and specifically, [his] uncle.”

Importantly, “any inference of a nexus between the gang’s

actions with respect to [Ponce’s] uncle and [Ponce’s]

familial relationship is undermined by the fact that other

family members continue to reside in Honduras without any

known issues with the gang.”

The BIA also determined there was no clear error in the

IJ’s “assessment of the facts which support her conclusion

that [Ponce] has not established his eligibility for protection

under [CAT].” Ponce failed to meet “the burden of

demonstrating that it is more likely than not that he would be

subjected to torture inflicted by or at the instigation of or

with the consent or acquiescence of an official or other

person acting in an official capacity.”

III. Jurisdiction and Standard of Review

We have jurisdiction under 8 U.S.C. § 1252. “Whether

a group constitutes a [PSG] . . . is a question of law we

review de novo.” Perdomo v. Holder, 611 F.3d 662, 665

SANTOS-PONCE V. WILKINSON 9

(9th Cir. 2010) (citation omitted). In contrast, whether an

applicant has shown that his persecutor was or would be

motivated by a protected ground—i.e., whether the “nexus”

requirement has been satisfied—is reviewed under the

substantial evidence standard. See Parussimova v. Mukasey,

555 F.3d 734, 739 (9th Cir. 2009). Under this deferential

standard, factual findings are treated as “conclusive unless

any reasonable adjudicator would be compelled to conclude

to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Singh v.

Lynch, 802 F.3d 972, 974 (9th Cir. 2015). Accordingly, in

order to reverse the BIA’s finding under substantial evidence

review, “we must find that the evidence not only supports

that conclusion, but compels it.” INS v. Elias-Zacarias,

502 U.S. 478, 481 n.1 (1992).

IV. Discussion and Analysis

Regarding his asylum and withholding of removal

claims, Ponce argues before this court, like he did before the

BIA, that he would be targeted for persecution on account of

his membership in two proffered PSGs: (1) “minor Christian

males who oppose gang membership” and (2) members of

the Santos-Ponce family.

The BIA properly concluded that Ponce’s first proposed

PSG—“minor Christian males who oppose gang

membership”—is not sufficiently particular or socially

distinct. We have previously determined that a very similar

PSG fails. See Ramos-Lopez v. Holder, 563 F.3d 855, 861–

62 (9th Cir. 2009) (concluding that young Honduran men

who resisted gang recruitment “failed the particularity

requirement” and “lacked the requisite social visibility”),

abrogated in part on other grounds by Henriquez-Rivas v.

Holder, 707 F.3d 1081, 1093 (9th Cir. 2013) (en banc). The

record does not show how adding the term “Christian” to

minors who oppose gang membership makes the group

10 SANTOS-PONCE V. WILKINSON

sufficiently particular or socially distinct. The record lacks

“persuasive evidence that [there is] a viable risk of

persecution based on one’s Christian religious beliefs or

practices,” and the evidence does not compel the conclusion

that Honduran society would distinguish between a young

Christian male who resists gang recruitment and any other

young man who seeks to avoid gang membership.

Regarding Ponce’s second proposed PSG—members of

“the Santos-Ponce family”—the record does not contain

evidence of a nexus between the alleged persecution and his

membership in the Santos-Ponce family. See Lkhagvasuren

v. Lynch, 849 F.3d 800, 802 (9th Cir. 2016) (“The petitioner

has the burden to prove that a nexus exists between the

persecution and a protected ground.”). While Ponce’s uncle

was killed by gang members, the record does not contain any

evidence that his uncle’s membership in the Santos-Ponce

family was one central reason or even a reason that the gang

killed him. See Barajas-Romero v. Lynch, 846 F.3d 351, 360

(9th Cir. 2017) (observing that where “there was no nexus at

all,” we draw “no distinction between the ‘one central

reason’ phrase in the asylum statute and the ‘a reason’ phrase

in the withholding statute”). In addition, Ponce’s claim of

future persecution is undermined by the fact that he has other

family members living unharmed in Honduras. 2 Because

Ponce failed to establish a nexus between the alleged

persecution and his proposed PSG based on his familial

relation, the record does not compel us to reverse the BIA. 3

2

See Estrada v. INS, 775 F.2d 1018, 1022 (9th Cir. 1985) (“The

absence of harassment of an alien’s family tends to reduce the probability

of persecution.”).

3

Given the lack of nexus, we need not address in this case whether

Ponce’s proposed PSG consisting of members of the Santos-Ponce

SANTOS-PONCE V. WILKINSON 11

As a result, the BIA’s determination that Ponce did not merit

asylum is supported by substantial evidence. 4

Lastly, substantial evidence supports the BIA’s

conclusion that Ponce is not eligible for CAT protection. To

qualify for CAT protection, Ponce bears the burden of

proving “that ‘it is more likely than not that … [he] would

be tortured if removed to the proposed country of removal.’”

Azanor v. Ashcroft, 364 F.3d 1013, 1018 (9th Cir. 2004)

(first alteration in original) (quoting 8 C.F.R.

§ 208.16(c)(2)). The record does not contain evidence

compelling a conclusion different from the BIA’s. The BIA

correctly explained that the IJ did not err by observing that

“[t]here is no claim or evidence that [Ponce] was harmed,

much less tortured in the past by any government officials,

or anyone acting under the acquiescence of the government.”

And the fact that Ponce’s uncle was killed for unspecified

reasons, combined with the existence of generalized

violence in Honduras, does not compel the conclusion that,

upon his return to Honduras, Ponce would more likely than

not experience torture “inflicted by, or at the instigation of,

or with the consent or acquiescence of, a public official …

or other person acting in an official capacity.” 8 C.F.R.

§ 1208.18(a)(1) (2021); Delgado-Ortiz v. Holder, 600 F.3d

1148, 1152 (9th Cir. 2010) (per curiam) (“Petitioners’

generalized evidence of violence and crime in Mexico is not

particular to Petitioners and is insufficient to meet [the CAT]

family is cognizable. See Matter of L-E-A-, 27 I. & N. Dec. 581, 581,

584 (2019).

4

Because Ponce “fail[ed] to satisfy the lower standard of proof

required to establish eligibility for asylum,” substantial evidence

supports the BIA’s conclusion that he “fail[ed] to demonstrate eligibility

for withholding of deportation.” Pedro-Mateo v. INS, 224 F.3d 1147,

1150 (9th Cir. 2000).

12 SANTOS-PONCE V. WILKINSON

standard.”). Substantial evidence supports the BIA’s

conclusion that Ponce failed to demonstrate eligibility for

CAT relief.

The petition for review is DENIED.