Jose Andrew Valencia- Hernandez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE ANDREW VALENCIA-
HERNANDEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-71525
Agency No. A208-539-076
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 16, 2022**
Pasadena, California
Before: WARDLAW and W. FLETCHER, Circuit Judges, and KORMAN,***
District Judge.
FILED
MAR 5 2024
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.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.

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Jose Valencia-Hernandez, a native and citizen of El Salvador, seeks review
of a decision from the Board of Immigration Appeals (“BIA”) affirming the
Immigration Judge’s (“IJ”) denial of his requests for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). We have
jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence the factual
findings underlying the BIA’s denial of relief. Plancarte Sauceda v. Garland, 23
F.4th 824, 831 (9th Cir. 2022). We deny the petition.
1. Substantial evidence supports the agency’s denial of asylum and
withholding of removal. To qualify for asylum and withholding, a petitioner must
show that “it is more likely than not that he or she would be persecuted on account
of race, religion, nationality, membership in a particular social group, or political
opinion.” 8 C.F.R. § 1208.16(b)(2). A petitioner seeking asylum based on
membership in a particular social group “must show that the proposed social group
is ‘(1) composed of members who share a common immutable characteristic, (2)
defined with particularity, and (3) socially distinct within the society in question.’ ”
Conde Quevedo v. Barr, 947 F.3d 1238, 1242 (9th Cir. 2020) (quoting In re
M-E-V-G-, 26 I & N Dec. 227, 237 (B.I.A. 2014)). To prevail on a withholding of
removal claim, an individual must show a “clear probability” of persecution on
account of a protected ground. Tamang v. Holder, 598 F.3d 1083, 1091 (9th Cir.
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2010). We review the IJ’s decision because the BIA adopted and affirmed the
decision of the IJ. See Matter of Burbano, 20 I & N Dec. 872, 874 (B.I.A. 1994).
2. Substantial evidence supports the IJ’s finding that there was no nexus
between Valencia-Hernandez’s future or past persecution and his membership in a
legally cognizable particular social group. Valencia-Hernandez previously
suffered two attacks from gang members. The evidence supports the IJ’s
conclusion that Valencia-Hernandez was targeted because the gangs wished to rob
his family and were angry that he resisted and refused to help the gang. Valencia-
Hernandez’s claims for asylum and withholding of removal therefore fail. See
Barrios v. Holder, 581 F.3d 849, 854 (9th Cir. 2009) (“[R]esistance to gang
membership is not a protected ground.”), abrogated on other grounds by
Henriquez-Rivas v. Holder, 707 F.3d 1081, 1093 (9th Cir. 2013) (en banc); Zetino
v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (“An alien’s desire to be free from
harassment motivated by theft or random violence by gang members bears no
nexus to a protected ground.”).
3. Substantial evidence also supports the IJ’s denial of CAT relief.
Valencia-Hernandez has not shown that it is “more likely than not” that, if
removed, he would be tortured and the government of El Salvador would acquiesce
in his torture. Zhang v. Ashcroft, 388 F.3d 713, 721 (9th Cir. 2004).
3

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PETITION DENIED.
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