Diego Santiago-Diego v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DIEGO SANTIAGO-DIEGO,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-974
Agency No.
A213-083-446
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted October 19, 2023**
San Francisco, California
Before: BEA, CHRISTEN, and JOHNSTONE, Circuit Judges.
Diego Santiago-Diego, a native and citizen of Guatemala, petitions for
review of an order denying his applications for asylum, withholding of removal,
and protection under the Convention Against Torture (CAT). The Immigration
Judge (IJ) issued a final order of removal denying his applications, and the
Board of Immigration Appeals (BIA) affirmed without issuing a separate
* This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concluded this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
OCT 23 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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opinion. When the BIA affirms without a separate opinion, as here, we review
the IJ’s decision as the final agency determination. Falcon Carriche v.
Ashcroft, 350 F.3d 845, 849 (9th Cir. 2003). We have jurisdiction to review
final orders of removal pursuant to 8 U.S.C. § 1252. We review questions of
law de novo, including whether a particular social group is cognizable. Nguyen
v. Barr, 983 F.3d 1099, 1101 (9th Cir. 2020). We review the IJ’s factual
findings for substantial evidence, which “should be upheld ‘unless the evidence
compels a contrary result.’” Budiono v. Lynch, 837 F.3d 1042, 1046 (9th Cir.
2016) (quoting Hernandez-Mancilla v. Holder, 633 F.3d 1182, 1184 (9th Cir.
2011)).
The IJ did not err by denying withholding of removal and asylum on the
basis that Santiago-Diego did not demonstrate that his proposed particular social
group of “persons whose spouses were killed in Guatemala” is legally
cognizable. A valid particular social group must be “(1) composed of members
who share a common immutable characteristic, (2) defined with particularity,
and (3) socially distinct within the society in question.” Matter of M-E-V-G-,
26 I. & N. Dec. 227, 237 (BIA 2014). Santiago-Diego’s proposed group shares
an immutable characteristic because its members cannot change that their
spouses died in Guatemala. However, the group is not defined with
particularity because it is not “discrete,” and its boundaries are vague. Matter of
M-E-V-G-, 26 I. & N. Dec. at 239; see also Diaz-Reynoso v. Barr, 968 F.3d
1070, 1083 (9th Cir. 2020). Santiago-Diego contends that his testimony clearly

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indicated that “killed” meant murdered, and thus the group is defined with
sufficient particularity. However, the group still includes persons whose
spouses were killed for any motive, political or otherwise, in Guatemala. And
Santiago-Diego presented no evidence to prove that a person whose spouse is
killed in Guatemala is recognized in Guatemalan society as part of a socially
distinct group.
The IJ did not err by denying protection under the CAT. The IJ
concluded that the evidence Santiago-Diego presented did not show he was
tortured, nor did it show “gross, flagrant, or mass violations of human rights” in
Guatemala. Additionally, the IJ pointed to the police investigation into
Santiago-Diego’s wife’s death as evidence the government would not acquiesce
to torture. Santiago-Diego argues “the government of Guatemala has a long
history of failing to help persons such as [Santiago-Diego],” and thus he is
entitled to protection under the CAT. Absent evidence that Santiago-Diego’s
spouse was killed for a reason that would also apply to Santiago-Diego, this
falls short of showing that Santiago-Diego faces a particularized risk of torture
if he is returned to Guatemala.
PETITION DENIED.

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