JOSE GUTIERREZ, AKA Jose Gutierrez- Mendoza, AKA Jose Mendoza v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE GUTIERREZ, AKA Jose Gutierrez-
Mendoza, AKA Jose Mendoza,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 17-70190
Agency No. A075-631-134
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 9, 2022**
Pasadena, California
Before: MURGUIA, Chief Judge, and PARKER*** and LEE, Circuit Judges.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes that this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Barrington D. Parker, Jr., United States Circuit Judge
for the U.S. Court of Appeals for the Second Circuit, sitting by designation.
FILED
NOV 23 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Jose Gutierrez, a native and citizen of El Salvador, petitions for review of an
order from the Board of Immigration Appeals (BIA) dismissing his appeal from an
Immigration Judge’s denial of his applications for withholding of removal and relief
under the Convention Against Torture (CAT). We have jurisdiction under 8 U.S.C.
§ 1252. Gutierrez argues that he will likely face persecution and torture if he is
removed to El Salvador because he refused to join a gang when he was last in El
Salvador. We deny Gutierrez’s petition for review.
1. The BIA did not err in concluding that Gutierrez is ineligible for
withholding of removal. The withholding claim that Gutierrez presented to the BIA
was based on the proposed particular social group of “long-time residents of the
United States who are deported to El Salvador and subject to gang recruitment.” But
a petitioner’s general fear of gang violence cannot sustain a withholding claim,
Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010), and Gutierrez’s proposed
particular social group is not cognizable, see Delgado-Ortiz v. Holder, 600 F.3d
1148, 1151–52 (9th Cir. 2010).
On appeal to this court, Gutierrez presents a withholding claim based on a
different particular social group: his family. This family-based withholding claim
must fail because it is unexhausted. See Bare v. Barr, 975 F.3d 952, 960 (9th Cir.
2020). However, even if the claim were properly exhausted, it would fail because
the record does not support the conclusion that Gutierrez is at risk of persecution

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because of his family membership. See Barajas-Romero v. Lynch, 846 F.3d 351,
357 (9th Cir. 2017). Instead, the record suggests that Gutierrez’s past persecutors
were motivated by a desire to punish him for refusing to join their gang.
2. The BIA did not err in determining that Gutierrez is ineligible for
protection under CAT. Substantial evidence supports the conclusion that Gutierrez
does not face a likelihood of torture in El Salvador. The gang members who
Gutierrez fears never physically harmed him, and they threatened him on only one
occasion. Although the death of Gutierrez’s stepfather at the hands of gang members
may provide some support for Gutierrez’s CAT claim, the record does not compel
the conclusion that Gutierrez will likely be tortured in El Salvador. See Diaz-
Reynoso v. Barr, 968 F.3d 1070, 1076 (9th Cir. 2020). Under that standard of
review, the BIA’s decision must stand. Id.
Substantial evidence also supports the conclusion that the government of El
Salvador would not acquiesce in any torture that Gutierrez might face. The record
demonstrates that El Salvador’s government has acted to control gangs. Although
these measures have been ineffective, general ineffectiveness in controlling criminal
organizations does not constitute government acquiescence in torture. Garcia-
Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014).
PETITION DENIED.

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