Elmer Hernandez-Martinez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELMER HERNANDEZ-MARTINEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-72803
Agency No. A072-398-348
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted May 18, 2022
Pasadena, California
Before: KLEINFELD, MILLER, and COLLINS, Circuit Judges.
Elmer Hernandez-Martinez argues in his petition for review that the Board
of Immigration Appeals (“BIA”) erred in affirming the Immigration Judge’s (“IJ”)
decision to deny his applications for withholding of removal pursuant to 8 U.S.C. §
FILED
JUN 8 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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1231(b)(3)(A) and for protection under the Convention Against Torture (“CAT”).
We have jurisdiction pursuant to 8 U.S.C. § 1252 and deny the petition.
Petitioner argues his proffered social groups are legally cognizable.1
However, he does not point to any evidence in the record indicating that
Salvadoran society recognizes or perceives either of his proffered social groups as
distinct, cognizable groups. As such, we cannot say that the record compels a
contrary conclusion to the one the BIA reached. See Villegas Sanchez v. Garland,
990 F.3d 1173, 1178 (9th Cir. 2021). Nor does the record compel the conclusion
that, contrary to the BIA’s determination, there was any nexus connecting
Petitioner’s experience with his proposed social groups.
Finally, the BIA’s determination that Petitioner was not eligible for CAT
relief is supported by substantial evidence. We are not compelled to disagree with
1 Petitioner proposed three social groups before the IJ but only pressed two
on appeal to the BIA. Consequently, his attempt to revive the social group
“Salvadoran men having been harmed for disobeying gang’s extortion and/or
recruitment demand” is foreclosed for failure to exhaust. Sola v. Holder, 720 F.3d
1134, 1135 (9th Cir. 2013) (per curiam). We therefore review only his proposed
social groups of “a Salvadoran family member of landowner targeted by gang
members for extortion” and “part of Salvadoran men that police unlawfully target
as suspected gang members.”
2

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the BIA that one incident involving three blows to the stomach—leaving no
injury—is not torture. Nor does Petitioner’s evidence of country conditions
compel a contrary result. Although the record contains evidence suggesting that
unlawful violence by police and gangs is a substantial problem in El Salvador, we
cannot say that the agency erred in concluding that, on this record, Petitioner had
failed to show that he would be subjected to mistreatment that rose to the level of
torture. As a result, we are not compelled to conclude Petitioner is more likely
than not to be tortured if returned to El Salvador. See 8 C.F.R. § 1208.16(c)(2).
PETITION DENIED.
3

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