Rafael Antonio Guerrero Rodriguez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAFAEL ANTONIO GUERRERO
RODRIGUEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-71629
Agency No. A202-076-066
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted January 24, 2023
San Francisco, California
Before: GOULD, RAWLINSON, and BRESS, Circuit Judges.
Rafael Antonio Guerrero Rodriguez (“Guerrero Rodriguez” or “Petitioner”)
is a native and citizen of El Salvador. When he entered the United States, he did
not possess or present any valid immigrant visa or reentry permit, and he was not
admitted or paroled after inspection by an immigration officer. He was served a
Notice to Appear (“NTA”) in September 2014. In November 2016, Guerrero
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
JAN 31 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Rodriguez admitted to the factual allegations and conceded the charge of
removability in the NTA. He requested relief in the forms of asylum, withholding
of removal, and protection under the Convention Against Torture (“CAT”). The
Immigration Judge (“IJ”) heard Guerrero Rodriguez’s case on July 12, 2018 and
denied his application for relief. Guerrero Rodriguez appealed to the Board of
Immigration Appeals (“BIA”), which affirmed the IJ’s decision without an
opinion. We have jurisdiction under 8 U.S.C. § 1252 and deny in part and dismiss
in part the petition for review.
In cases where the BIA affirms the IJ’s decision without an opinion, the IJ’s
decision becomes the BIA’s decision, and we evaluate the IJ’s decision as we
would that of the Board. Lanza v. Ashcroft, 389 F.3d 917, 925 (9th Cir. 2004).
“Whether a group constitutes a particular social group is a question of law,” which
we review de novo. Cordoba v. Barr, 962 F.3d 479, 482 (9th Cir. 2020) (internal
quotations omitted) (quoting Pirir-Boc v. Holder, 750 F.3d 1077, 1081 (9th Cir.
2014)). The applicant has the burden to demonstrate the existence of a cognizable
particular social group (“PSG”), their membership in that PSG, and a risk of
persecution on account of their membership in the specified PSG. See Henriquez-
Rivas v. Holder, 707 F.3d 1081, 1083 (9th Cir. 2013) (en banc).
1. We lack jurisdiction to consider Guerrero Rodriguez’s contention that the
IJ “mischaracterized” his proposed social group because he failed to raise this issue

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before the BIA. We accordingly dismiss the petition with respect to this issue. See
8 U.S.C. § 1252(d)(1); Barron v. Ashcroft, 358 F.3d 674, 677 (9th Cir. 2004).
2. Petitioner’s proposed social group comprised of “Salvadoran youth
targeted for gang recruitment” is not cognizable. The Board has previously
interpreted the phrase “particular social group” to refer to a group that is “(1)
composed of members who share a common immutable characteristic, (2) defined
with particularity, and (3) socially distinct within the society in question.” See
Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014).
Here, the IJ properly found that Guerrero Rodriguez’s proposed social group
lacked both sufficient particularity and social distinction. Guerrero Rodriguez’s
proposed social group is too “loosely defined” to meet the particularity
requirement because, as Guerrero Rodriguez admitted, the gangs are everywhere
and could target anyone. See Santos-Lemus v. Mukasey, 542 F.3d 738, 745 (9th
Cir. 2008) (abrogated on other grounds by Henriquez-Rivas, 707 F.3d 1081). As
to social distinction, the IJ was correct that “it is hard to see … where the
boundaries are” for Guerrero Rodriguez’s PSG because society would not be able
to perceive who is broadly “young” and has, at some point, been targeted by gangs.
3. Substantial evidence supports the Board’s determination that Petitioner
did not establish that the Salvadoran government would likely acquiesce to any
torture. To qualify for relief under CAT, the torture must be “inflicted by … or

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with the consent or acquiescence of a public official or other person acting in an
official capacity.” Zheng v. Ashcroft, 332 F.3d 1186, 1188 (9th Cir. 2003) (quoting
8 C.F.R. § 208.18(a)(1)) (emphasis and internal quotation marks omitted).
Acquiescence does not require “actual knowledge or willful acceptance,” but rather
“awareness and willful blindness” is sufficient. Zheng, 332 F.3d at 1197 (internal
quotations omitted)). However, “a general ineffectiveness on the government’s
part to investigate and prevent crime will not suffice to show acquiescence.”
Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016). To meet their
burden, a petitioner must show that they are more likely than the general populace
to be victims of violence and crime. Ramirez-Munoz v. Lynch, 816 F.3d 1226,
1230 (9th Cir. 2016).
Here, substantial evidence supports the determination that Guerrero
Rodriguez failed to establish acquiescence. Guerrero Rodriguez testified that he
was afraid to go to the police because he thought the gangs would kill his family,
but he did not testify that police ever explicitly declined to help him in the past.
Guerrero Rodriguez testified that he was “certain that the police would not protect
[him] because they also fear the gangs.” However, substantial evidence supports
the conclusion that Guerrero Rodriguez’s statements about the police did not show
more than a “general ineffectiveness on the government’s part.” See Andrade-
Garcia, 828 F.3d at 836. As to the documentation on the country conditions,

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substantial evidence supports the IJ’s conclusion that the documentation was not
enough to show “willful blindness” of government officials that would make
Guerrero Rodriguez more likely than another member of the general populace to
be a victim of violence or crime.
PETITION DENIED in part; DISMISSED in part.

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