United States v. 2020-06-29 | 18-70141 | MIGUEL DIAZ-TORRES V. WILLIAM BARR | precedential | opinion |

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MIGUEL DIAZ-TORRES,
Petitioner,

v.

WILLIAM P. BARR, Attorney General,
Respondent.
Nos. 18-70141
18-72700

Agency No.
A089-247-266

OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals

Submitted March 2, 2020
*

Seattle, Washington

Filed June 29, 2020

Before: Sandra S. Ikuta, Ryan D. Nelson, and
Danielle J. Hunsaker, Circuit Judges.

Opinion by Judge R. Nelson

*
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

2 DIAZ-TORRES V. BARR

SUMMARY
**

Immigration

Denying a petition for review of the Board of
Immigration Appeals’ denial of asylum and withholding of
removal, the panel held that petitioner had not met his
burden of establishing that his proposed social groups
comprised of “Mexican professionals who refuse to
cooperate with drug cartels” and “agronomists who refuse to
help cultivate drugs” are socially distinct.

The panel explained that nothing in this record addresses
whether Mexican society views either of petitioner’s
proposed social groups as distinct. For instance, no laws or
proposed legislation, nor any country conditions reports or
news articles, mention such a group. To the contrary, the
evidence painted a picture of all segments of the Mexican
population being adversely affected by the brutality of drug
cartels. In addition, the panel explained that the expert
testimony in this case did not bridge the gap to establish that
Mexican society views petitioner’s proposed groups as
distinct, but rather indicated that almost anybody can be
targeted by the drug cartels.

The panel also concluded that petitioner’s testimony was
insufficient to establish social distinction, because although
some of his testimony indicated that cartel members view
individuals like petitioner as targets for extortion or
violence, it did not establish how society in general views

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

DIAZ-TORRES V. BARR 3

his proposed groups. The panel explained that the view of
an applicant’s persecutors does not inform the social
distinction inquiry except to the extent it is indicative of
whether society views the group as distinct. The panel
further explained that an applicant’s testimony alone is
insufficient to establish the social distinction of a proposed
group unless he satisfies the trier of fact that his testimony is
credible, is persuasive, and refers to specific facts sufficient
to demonstrate that the proposed group is socially distinct.
Moreover, the panel stated that the social distinction inquiry
encompasses principles that will ordinarily demand some
type of corroborative, objective evidence. Because there
was no such evidence here, the panel held that substantial
evidence supported the Board’s conclusion that petitioner
failed to establish that his purported groups were socially
distinct.

The panel addressed petitioner’s remaining claims, and
the denial of his motion to reopen, in a concurrently filed
memorandum disposition.

COUNSEL

Bernice Funk, Law Office of Bernice Funk, Seattle,
Washington, for Petitioner.

Mona Maria Yousif, Trial Attorney; Brianne Whelan Cohen,
Senior Litigation Counsel; Joseph H. Hunt, Assistant
Attorney General; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Respondent.

4 DIAZ-TORRES V. BARR

OPINION
R. NELSON, Circuit Judge:
Those seeking asylum and withholding of removal based
on membership in a “particular social group” are required to
show that the proposed group is recognizable as “socially
distinct.” This case requires us to decide whether the
testimony of the applicant—without supporting
documentary evidence—can satisfy the social distinction
requirement. We conclude that the applicant’s testimony
was not sufficient, and therefore deny the petition for
review.
1

I
Miguel Diaz-Torres was born in Mexico and raised in the
Mexican state of Sinaloa. He graduated from the
Autonomous University of Sinaloa with a degree in
Agricultural Sciences and worked for the Mexican
government as an agricultural engineer throughout Mexico.
Nearly a decade later, Mr. Diaz-Torres returned to Sinaloa
to work at a tire store while doing agricultural consulting on
the side.
As part of his consulting, Mr. Diaz-Torres was asked by
two men to look at a crop of corn that “wasn’t growing well.”
Mr. Diaz-Torres agreed to do so and went with the men to
the corn field. He observed corn growing only on the
exterior of the field. On the interior, marijuana was growing.
Mr. Diaz-Torres nonetheless offered and was paid for his
advice. This same scenario may have played out a second

1
We reject the remaining arguments raised in Mr. Diaz-Torres’s
first petition for review, and deny his second petition for review, in a
concurrently-filed memorandum disposition.

DIAZ-TORRES V. BARR 5

time during this period. Mr. Diaz-Torres testified that the
individuals who approached him for help were members of
the Sinaloa cartel.
Several years later, Mr. Diaz-Torres was again
approached by cartel members, who were specifically
looking for “Engineer Miguel.” He was again asked for
advice due to his expertise as an agricultural engineer. But
this time, the men were more forthcoming, explicitly telling
him they needed help growing marijuana. Mr. Diaz-Torres
refused. The men told him if he did not help them, his “life
was at risk.” They told him to think about their offer and
that they would return the next day. Mr. Diaz-Torres
believed their threats to be credible given his knowledge of
the cartels. So he fled Mexico and entered the United States
without inspection.
Approximately seven years later, Mr. Diaz-Torres
returned to Mexico, intending to permanently live with his
aging mother in Sinaloa. After several months, he visited a
shopping mall, where, by happenstance, he ran into the same
two cartel members from the earlier threat. Those men again
threatened him, telling him his life was not safe because he
refused to help them. Fearing harm or worse, Mr. Diaz-
Torres fled to his brother’s home in a different region of
Mexico, and then flew to Canada. From there, Mr. Diaz-
Torres attempted to enter the United States and was detained
at the border.
Mr. Diaz-Torres applied for asylum, withholding of
removal, and protection under the Convention Against
Torture (“CAT”), arguing that he was a member of the
particular social group of Mexican “professionals who
refuse to cooperate with drug cartels.” Mr. Diaz-Torres
testified about the threats by members of drug cartels in
Sinaloa for not cooperating with them. He also testified that

6 DIAZ-TORRES V. BARR

he knew of other Mexican professionals, including
agricultural engineers, who had been killed for not
cooperating with the cartels.
He also submitted documentary evidence, including
news articles about Mexican professionals who were killed.
The articles explained these deaths, but they did not identify
the murderers or why each person was killed. He also
submitted evidence about violence caused by the cartels in
Mexico, including evidence that the cartels target and kill
those who give tips to the police, those who help rival
cartels, those in rival cartels, those who refuse to be extorted
for money, and those politicians who try to stop them. There
was no documentary evidence regarding cartels targeting
Mexican professionals to seek their services. Nor was there
documentary evidence showing that Mexican society views
either of these groups as distinct.
Mr. Diaz-Torres’s application also included an affidavit
from Sylvia M. Longmire, M.A., an expert in Mexican
criminal organizations. She testified about the advent of
such organizations in Mexico, and about their leadership,
criminal activities, and interaction with the Mexican
government. She also testified that Mr. Diaz-Torres was
likely to be targeted by Mexican drug cartels if removed to
Mexico. She did not, however, opine on how those who
refuse to provide professional services to cartels are viewed
in Mexican society.
An immigration judge (“IJ”) denied all relief and the
Board of Immigration Appeals (“BIA”) dismissed Mr. Diaz-
Torres’s appeal based in part on its conclusion that the group
of “Mexican professionals” who refuse to cooperate with
cartels was “not sufficiently discrete, nor does it have social
visibility.” But a panel of our Court remanded the case to
the BIA for further consideration in light of intervening

DIAZ-TORRES V. BARR 7

cases addressing particular social group determinations,
including Pirir-Boc v. Holder, 750 F.3d 1077 (9th Cir.
2014); Cordoba v. Holder, 726 F.3d 1106 (9th Cir. 2013);
Matter of W-G-R-, 26 I. & N. Dec. 208 (BIA 2014); and
Matter of M-E-V-G-, 26 I. & N. Dec. 227 (BIA 2014). The
BIA remanded the matter to the immigration court.
On remand, Mr. Diaz-Torres presented a slightly
different particular social group—“agronomists” who refuse
to help cultivate drugs—as well as Mexican professionals
who refuse to cooperate with cartels. He testified a second
time, recounting the same story of threats for refusing to
cooperate with the cartels. During his testimony, he was
asked about the articles detailing the deaths of Mexican
professionals. Mr. Diaz-Torres testified that he knew some
of the men and knew that they were killed for refusing to
cooperate with the cartels. He also testified that there is a
particular term in Spanish used in Sinaloa for someone who
has rejected a cartel’s recruitment efforts—“esta
comontado.”
New evidence was also submitted. Ms. Longmire
submitted an updated declaration and testified in court, for
the first time, about the same general themes discussed in her
declaration. Mr. Diaz-Torres also submitted a new article
about an agricultural engineer who was killed in Mexico and
several new articles about cartel-related violence and crime
in Mexico.
The IJ denied relief, holding in part that Mr. Diaz-
Torres’s proposed social group of agronomists who refuse to
cooperate with cartels did not meet the social distinction
requirement because there was no evidence that the proposed
group was “perceived as a group by society.” Mr. Diaz-
Torres appealed this ruling, among others, to the BIA. The
BIA dismissed the appeal, holding that he had “not met his

8 DIAZ-TORRES V. BARR

burden to produce evidence demonstrating that his purported
group is socially distinct.” This timely petition for review
followed.
II
To establish eligibility for asylum, an applicant must
show that he is “unable or unwilling” to return to his country
of origin “because of persecution or a well-founded fear of
persecution on account of race, religion, nationality,
membership in a particular social group, or political
opinion.” 8 U.S.C. § 1101(a)(42). Similarly, an applicant is
eligible for withholding of removal if his “life or freedom
would be threatened in that country because of [his] race,
religion, nationality, membership in a particular social
group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A).
The Immigration and Nationality Act does not define
“particular social group.” The BIA has interpreted that term
to include three components: (1) a group “composed of
members who share a common immutable characteristic”;
(2) “defined with particularity”; and (3) “socially distinct
within the society in question.” Reyes v. Lynch, 842 F.3d
1125, 1131 (9th Cir. 2016), cert. denied, 138 S. Ct. 736
(2018) (quoting Matter of M-E-V-G-, 26 I. & N. Dec. at 237).
This case concerns the third requirement—social
distinction—which we have held is a proper element, giving
deference to the BIA. Id. at 1135–36.
Social distinction refers to whether “the people of a
given society would perceive a proposed group as
sufficiently separate or distinct.” Pirir-Boc, 750 F.3d
at 1084 (internal quotation marks omitted). This
requirement refers to general social perception, which can be
assessed from the perspective of “the society in question as
a whole,” “the residents of a particular region,” or “members

DIAZ-TORRES V. BARR 9

of a different social group,” depending of the facts of the
case. Cordoba, 726 F.3d at 1115. It is not, however,
assessed from the perspective of the persecutors. Conde
Quevedo v. Barr, 947 F.3d 1238, 1242 (9th Cir. 2020).
To make the social-distinction determination, the agency
must perform an “evidence-based” inquiry into “whether the
relevant society recognizes [the petitioner’s] proposed social
group.” Pirir-Boc, 750 F.3d at 1084. “Evidence such as
country conditions reports, expert witness testimony, and
press accounts of discriminatory laws and policies, historical
animosities, and the like may establish that a group exists
and is perceived as ‘distinct’ or ‘other’ in a particular
society.” Id. (quoting Matter of M-E-V-G-, 26 I. & N. Dec.
at 244). Because the inquiry is based on country-specific
evidence, the inquiry is necessarily conducted case-by-case,
country-by-country, and, in some cases, region-by-region.
See Conde Quevedo, 947 F.3d at 1242. We review the
record for “substantial evidence” and “reverse the BIA only
on a finding that the evidence not only supports a contrary
conclusion, but compels it.” Reyes, 842 F.3d at 1137
(internal quotation marks and alterations omitted).
Our cases show how this case-by-case, evidence-based
inquiry works in practice. In Henriquez-Rivas v. Holder, we
concluded that the particular social group of “people who
testified against gang members” in El Salvador was socially
distinct because a “witness protection law” passed by the
“Salvadoran legislature” for those types of witnesses showed
that “Salvadoran society recognizes the unique
vulnerability” of that group. 707 F.3d 1081, 1090–92 (9th
Cir. 2013) (en banc). In Conde Quevedo, by contrast, the
particular social group of people in Guatemala “who report
the criminal activity of gangs to police” did not meet the
social distinction test because there was no record evidence,

10 DIAZ-TORRES V. BARR

including “country reports, background documents, or news
articles,” showing that those who report gang violence were
recognized as a distinct group in Guatemala. 947 F.3d
at 1242–43.
This case fits into the latter scenario. Nothing in the
record addresses whether Mexican society views either of
Mr. Diaz-Torres’s proposed social groups as distinct. No
laws or proposed legislation so indicate. Nor do any country
conditions reports or news articles mention such a group. To
the contrary, the evidence paints a picture of all segments of
the Mexican population being adversely affected by the
brutality of drug cartels. And the expert testimony does not
bridge the gap. That testimony also indicates that almost
anybody can be targeted by the drug cartels and does not
show that Mexican society views as distinct the groups
Mr. Diaz-Torres claims to be a member of.
Nor does Mr. Diaz-Torres’s testimony make the required
showing. Mr. Diaz-Torres testified that it is well understood
in Mexico that Mexican professionals are targeted by cartels.
He stated, for example, that agricultural engineers and other
licensed professionals are regularly killed in his town for
refusing to work with the cartels. He also testified that one
of his former colleagues, also an agronomist, was killed by
the cartels for not helping them. According to Mr. Diaz-
Torres, there is even a phrase in his town for those who are
recruited or targeted by cartels.
Some of this testimony indicates that cartel members
view individuals like Mr. Diaz-Torres as targets for extortion
or violence. But the view of Mr. Diaz-Torres’s persecutors
does not inform the social distinction inquiry except to the
extent it is “indicative of whether society views the group as
distinct.” Matter of M-E-V-G-, 26 I. & N. Dec. at 242. As
described above, we must focus on how society views the

DIAZ-TORRES V. BARR 11

proposed group. Conde Quevedo, 947 F.3d at 1242; accord
Rios v. Lynch, 807 F.3d 1123, 1127 (9th Cir. 2015)
(“[R]ecognition of a particular social group is determined by
the perception of the society in question, rather than by the
perception of the persecutor.”) (internal quotation marks
omitted). Otherwise, almost any group would be distinct so
long as it was on a “persecutor’s enemies list.” Henriquez-
Rivas, 707 F.3d at 1102 (Kozinski, C.J., dissenting).
Moreover, to the extent some of Mr. Diaz-Torres’s
testimony does relate to the social distinction requirement, it
did not satisfy his burden of proof as to that element. After
all, the social distinction requirement is concerned with how
others view Mr. Diaz-Torres—not how he believes others
view him. Objective evidence “such as country conditions
reports, expert witness testimony, and press accounts of
discriminatory laws and policies, historical animosities, and
the like may establish that a group exists and is perceived as
‘distinct’ or ‘other’ in a particular society.” Pirir-Boc,
750 F.3d at 1084 (internal quotation marks omitted). By
contrast, the testimony of the applicant alone is insufficient
to establish the social distinction of a proposed group unless
the petitioner “satisfies the trier of fact that the [petitioner’s]
testimony is credible, is persuasive, and refers to specific
facts sufficient to demonstrate” that the petitioner’s
proposed group is socially distinct. 8 U.S.C.
§ 1158(b)(1)(B)(ii). Given this standard, when a finder of
fact concludes that the petitioner’s testimony alone is
insufficient to establish the social distinction of a proposed
group, we would not be compelled to conclude otherwise
(even if we would have reached a different conclusion),
unless the IJ were objectively unreasonable or failed to act
as a neutral fact-finder.

12 DIAZ-TORRES V. BARR

We note that this approach comports with our
assessment, consistent with the requirements of 8 U.S.C.
§ 1158(b)(1)(B)(ii), of the burden of proof in determining
refugee status. Because Mr. Diaz-Torres was found to be
credible, we take his testimony as true. See Singh v. Holder,
764 F.3d 1153, 1159 (9th Cir. 2014). But Mr. Diaz-Torres’s
testimony alone is not necessarily “sufficient to sustain” his
burden. 8 U.S.C. § 1158(b)(1)(B)(ii). The testimony must
satisfy “the trier of fact that the applicant’s testimony is
credible, is persuasive, and refers to specific facts sufficient
to demonstrate that the applicant is a refugee.” Id.
Moreover, corroboration may be required—even when
testimony is credible—if the agency so decides, unless “the
applicant does not have the evidence and cannot reasonably
obtain” it. Id. And the social distinction inquiry
encompasses principles that will ordinarily demand some
type of corroborative, objective evidence. Because there is
no such evidence here, substantial evidence supports the
BIA’s conclusion that Mr. Diaz-Torres “has not met his
burden to produce evidence demonstrating that his purported
group is socially distinct.”
* * *
Because Mr. Diaz-Torres has not met his burden of
demonstrating that he is a member of a particular social
group, the petition for review is DENIED.