Omar Morales Garcia v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OMAR MORALES GARCIA,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 17-70039
Agency No. A205-722-048
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 18, 2022**
San Francisco, California
Before: S.R. THOMAS and BENNETT, Circuit Judges, and DORSEY,*** District
Judge.
Omar Raymundo Morales Garcia, a native and citizen of Mexico, petitions
* This disposition is not appropriate for publication and is not
precedent except as provided by 9th Cir. R. 36-3.
** The panel unanimously concluded that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Jennifer A. Dorsey, United States District Judge for
the District of Nevada, sitting by designation.
FILED
DEC 6 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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for review of the Board of Immigration Appeals’ (BIA) dismissal of his appeal of
an immigration judge’s (IJ) denial of his applications for asylum, withholding of
removal, and protection under the Convention Against Torture (CAT). We have
jurisdiction under 8 U.S.C. § 1252. “We review factual findings for substantial
evidence and legal questions de novo.” Guerra v. Barr, 974 F.3d 909, 911 (9th Cir.
2020). We deny the petition for review.
1. The BIA did not err in affirming the IJ’s denial of asylum and withholding
of removal. To qualify for asylum, Garcia must demonstrate that he has suffered
“persecution or [has] a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or political opinion.”
Garcia v. Wilkinson, 988 F.3d 1136, 1142–43 (9th Cir. 2021) (quoting 8 U.S.C.
§ 1101(a)(42)(A)). To qualify for withholding of removal, Garcia must
demonstrate that his “life or freedom would be threatened ‘because of [his] race,
religion, nationality, membership in a particular social group, or political
opinion.’” Id. at 1146 (quoting 8 U.S.C. § 1231(b)(3)(A)). The past or feared harm
must have a nexus with the applicant’s protected ground under the Immigration
and Nationality Act (INA). Barajas-Romero v. Lynch, 846 F.3d 351, 359–60 (9th
Cir. 2017).
The BIA did not err in concluding that Garcia’s proposed social group
(based on his friendship with his late friend who was allegedly killed by drug

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traffickers) is not cognizable. For a particular social group to qualify under the
INA, this court has outlined a set of factors including, among others, “social
visibility—a group’s ‘perception by a society’—and particularity—the ability to
describe a group ‘in a manner sufficiently distinct that the group would be
recognized, in the society in question, as a discrete class of persons.’” Ramirez-
Munoz v. Lynch, 816 F.3d 1226, 1229 (9th Cir. 2016) (quoting Henriquez-Rivas v.
Holder, 707 F.3d 1081, 1089–91 (9th Cir. 2013) (en banc)). Nothing in the record
supports Garcia’s contention that his friend group is recognized by Mexican
society as a distinct group. And we have previously rejected social groups based on
friendships. See Donchev v. Mukasey, 553 F.3d 1206, 1220 (9th Cir. 2009)
(holding that the record did not compel a conclusion that friends of Roma
individuals are a particular social group).
Even if Garcia’s proposed social group were cognizable, substantial
evidence also supports the BIA’s determination that Garcia did not show the
necessary nexus between his fear of future harm and his social group. For asylum
claims, the applicant must prove that his protected ground is “at least one central
reason for persecuting [him].” 8 U.S.C. § 1158(b)(1)(B)(i). For withholding of
removal, however, this court applies the a-reason standard, which is “a less
demanding standard than ‘one central reason.’” Barajas-Romero, 846 F.3d at 360.
The record does not show that the drug traffickers that Garcia fears have any

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knowledge of his identity or his friendship with his late friend. And substantial
evidence also supports the BIA’s conclusion that Garcia’s fears are due to non-
protected reasons such as “greed or criminal avarice” rather than membership with
a social group. So, under either the asylum or withholding-of-removal standard, the
facts do not compel the conclusion that Garcia’s friendship with his late friend is
“one central reason” or even “a reason” for the harms he fears.
2. The BIA did not err in concluding that Garcia was ineligible for CAT relief.
To qualify for such relief, an applicant “bears the burden of establishing that ‘it is
more likely than not that he or she would be tortured if removed.’” Akosung v.
Barr, 970 F.3d 1095, 1104 (9th Cir. 2020) (quoting 8 C.F.R. § 1208.16(c)(2)). The
torture “must be ‘inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official capacity.’”
Garcia-Milian v. Holder, 755 F.3d 1026, 1033 (9th Cir. 2014) (quoting Zheng v.
Ashcroft, 332 F.3d 1186, 1188 (9th Cir. 2003)). While Garcia presented evidence
pointing to pervasive violence and crime in Mexico, the record does not show that
he faces a particularized threat of violence. Nor does it compel the conclusion that
the Mexican government or its public officials would participate in, consent in, or
acquiesce to Garcia’s torture upon his return to Mexico.
PETITION DENIED.

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