Desaili Denilson Monzon- Miranda v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DESAILI DENILSON MONZON-
MIRANDA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 17-72675
Agency No. A208-167-549
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 7, 2022**
San Francisco, California
Before: NGUYEN and SANCHEZ, Circuit Judges, and BOUGH,*** District
Judge.
Desaili Denilson Monzon-Miranda (“Monzon-Miranda”), a native and
citizen of Guatemala, petitions for review of the Board of Immigration 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 Stephen R. Bough, United States District Judge for the
Western District of Missouri, sitting by designation.
FILED
DEC 12 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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(“BIA”) decision, affirming the Immigration Judge’s (“IJ”) denial of asylum,
withholding of removal, and relief under the Convention Against Torture (“CAT”).
We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.
We review the agency’s legal conclusions de novo and its factual findings
for substantial evidence. Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th
Cir. 2017) (en banc). “Whether a group constitutes a particular social group is a
question of law we review de novo. In contrast, whether an applicant has shown
that his persecutor was or would be motivated by a protected ground—i.e., whether
the ‘nexus’ requirement has been satisfied—is reviewed under the substantial
evidence standard.” Santos-Ponce v. Wilkinson, 987 F.3d 886, 890 (9th Cir. 2021)
(cleaned up).
I.
Monzon-Miranda’s asylum and withholding of removal claims were based
solely on membership in the particular social group of “Guatemalan youth taking
concrete steps to avoid forced gang recruitment, fleeing gang violence and
extortion for refusing to pay ‘rent money’ which the government of Guatemala can
not and/or is not willing to control.” We have previously rejected proposed
particular social groups based on resistance to gang recruitment for lack of social
distinction and/or particularity. See Santos-Ponce, 987 F.3d at 890 (rejecting the
proposed group of “minor Christian males who oppose gang membership” in

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Honduras as “not sufficiently particular or socially distinct”); Ramos-Lopez v.
Holder, 563 F.3d 855, 861–62 (9th Cir. 2014) (rejecting the proposed group of
“young Honduran men who have been recruited by the MS-13, but who refuse to
join”). So too here. We conclude that Monzon-Miranda has failed to show that his
proposed social group is socially distinct and defined with particularity.1 To the
extent Monzon-Miranda proposes new particular social groups on appeal, we lack
jurisdiction to consider them. See Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.
2004).
II.
The BIA also determined that Monzon-Miranda’s asylum claim failed for
lack of nexus to a protected ground. Substantial evidence supports the BIA’s
determination that “any claimed persecution was or would be the result of general
gang recruitment efforts and extortion rather than on account of the respondent’s
membership in a particular social group.” Monzon-Miranda testified that gang
members beat him when he refused to join the gang or pay them money. A
petitioner’s “desire to be free from harassment by criminals motivated by theft or
1 Pirir-Boc v. Holder, 750 F.3d 1077 (9th Cir. 2014), does not alter our conclusion.
We held that the BIA erred in failing to consider record evidence of how
Guatemalan society viewed his proposed social group and remanded for the BIA to
consider that evidence. Id. at 1084. Here, the BIA considered the only society-
specific evidence submitted by Monzon-Miranda: the 2015 State Department
Human Rights Report for Guatemala (“2015 Report”).

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random violence by gang members bears no nexus to a protected ground.” Zetino
v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) (citation omitted).
III.
Finally, substantial evidence supports the BIA’s determination that Monzon-
Miranda did not face a likelihood of torture “‘inflicted by or at the instigation of or
with the consent or acquiescence of a public official acting in an official capacity
or other person acting in an official capacity.’” B.R. v. Garland, 26 F.4th 827, 844
(9th Cir. 2022) (quoting 8 C.F.R. § 208.18). The record does not compel the
conclusion that the gang members’ attacks amount to torture. While Monzon-
Miranda may have faced “cruel” acts, not all such acts “amount to torture.” Vitug
v. Holder, 723 F.3d 1056, 1066 (9th Cir. 2013) (quoting 8 C.F.R. § 208.18(a)(2)).
Further, though the 2015 Report reflects police corruption and gang violence in
Guatemala generally, it fails to establish that Monzon-Miranda faces a
particularized, ongoing risk of future torture. See Ramirez-Munoz v. Lynch, 816
F.3d 1226, 1230 (9th Cir. 2016).
PETITION DENIED.

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