Gabriel Benicio Chavez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GABRIEL BENICIO CHAVEZ,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 23-251
Agency No.
A028-813-075
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 5, 2024**
San Francisco, California
Before: R. NELSON, FORREST, and SANCHEZ, Circuit Judges.
Gabriel Benicio Chavez, native and citizen of El Salvador, petitions for
review of the Immigration Judge’s determination that Chavez should be removed
because he lacks a reasonable fear of persecution or torture. We have jurisdiction
* 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).
FILED
FEB 8 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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under 8 U.S.C. § 1252(a). See Park v. Garland, 72 F.4th 965, 973 (9th Cir. 2023).
We review for substantial evidence an immigration judge’s negative reasonable
fear finding, see Bartolome v. Sessions, 904 F.3d 803, 811 (9th Cir. 2018), and we
deny the petition.
1. In 1993, the Superior Court of California sentenced Chavez to 29
years in prison on convictions of first-degree murder and first-degree attempted
murder. Chavez states that “[t]he murder was 18th Street gang related in its
causation and execution.” In prison, he “maintained a connection to the 18th Street
gang for his protection.”
On September 16, 2022, the Department of Homeland Security (“agency”)
found Chavez removable as a noncitizen convicted of an aggravated felony and
issued a final administrative removal order under 8 U.S.C. § 1228(b). Following a
reasonable fear hearing, the Immigration Judge concurred with the asylum officer’s
finding that Chavez lacks a reasonable fear of either (1) persecution on account of
a protected ground or (2) torture to warrant a full hearing for withholding of
removal and protection under the Convention Against Torture (“CAT”).
2. Substantial evidence supports the agency’s finding that Chavez failed
to present a reasonable fear of persecution on account of a protected ground. To
warrant a full withholding of removal hearing, an individual with a final
administrative removal order must establish a “reasonable possibility that he . . .

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would be persecuted on account of his . . . race, religion, nationality, membership
in a particular social group or political opinion.” 8 C.F.R. § 208.31(c). A
petitioner must establish that his asserted group is a legally cognizable “particular
social group.” See 8 U.S.C. § 1231(b)(3)(A). Chavez argues that he will face
persecution and torture in El Salvador as both a “former” and current 18th Street
gang member.
Chavez’s putative groups of former and current gang membership are
mutually exclusive, and neither is a cognizable “particular social group” under our
controlling precedent. See Reyes v. Lynch, 842 F.3d 1125, 1137 (9th Cir. 2016)
(“former members of the Mara 18 gang [also known as the 18th Street gang] in El
Salvador who have renounced their membership” lack the necessary particularity
and social distinction to qualify as a particular social group); Arteaga v. Mukasey,
511 F.3d 940, 945 (9th Cir. 2007) (petitioner who “was still a gang member” but
“no longer ‘active’” failed to establish membership in a particular social group for
lack of a common immutable characteristic (emphasis in original)). “Congress, in
offering refugee protection for individuals facing potential persecution through
social group status, [had not] intended to include violent street gangs.” Arteaga,
511 F.3d at 945–46. Chavez’s tattoos do not alter this analysis so as to compel a
different result. See, e.g., id. at 945 (“‘Tattooed gang member’ falls outside the
Ninth Circuit’s definition of social group.”).

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3. Substantial evidence supports the agency’s finding that Chavez’s
asserted fear of reprisal pursuant to El Salvador’s “lawful sanctions” against gang
membership does not establish a reasonable fear of torture. See Del Cid
Marroquin v. Lynch, 823 F.3d 933, 937 (9th Cir. 2016) (that “gang membership is
illegal under Salvadoran law” does “not establish that the government tortures
former gang members or those with gang-related tattoos”). While a noncitizen
does not need to establish harm on account of a protected ground for CAT
protection, see 8 C.F.R. § 1208.18(a)(1), Chavez fails to establish “a reasonable
possibility that he . . . would be tortured in” El Salvador to merit protection under
CAT, id. § 1208.31(c).
PETITION DENIED.

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