Victorino Hernandez-Marinero v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICTORINO HERNANDEZ-MARINERO,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-349
Agency No.
A206-410-370
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 6, 2023**
Pasadena, California
Before: WALLACE and OWENS, Circuit Judges, and FITZWATER, District
Judge.***
Victorino Hernandez-Marinero, a native and citizen of Mexico, timely
petitions for review of the Board of Immigration Appeals’ (BIA) dismissal of his
appeal from the immigration judge’s denial of his applications for withholding of
* 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 Sidney A. Fitzwater, United States District Judge
for the Northern District of Texas, sitting by designation.
FILED
JUN 8 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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removal and protection under the Convention Against Torture (CAT). We have
jurisdiction pursuant to 8 U.S.C. § 1252. We review the BIA’s legal conclusions
de novo and its factual findings for substantial evidence. See Plancarte Sauceda
v. Garland, 23 F.4th 824, 831 (9th Cir. 2022). We deny the petition.
The BIA did not err in denying withholding of removal as Hernandez-
Marinero’s proposed particular social group is not cognizable. Individuals on a
gang’s hit list share no “common characteristic[s] aside from persecution,” and
therefore such a proposed group is “impermissibly circular.” Diaz-Reynoso v.
Barr, 968 F.3d 1070, 1086 (9th Cir. 2020); see also Matter of M-E-V-G-, 26 I. &
N. Dec. 227, 232 (BIA 2014) (“[A] ‘particular social group’ cannot be defined
exclusively by the claimed persecution[.]”). Moreover, the proposed social group
is not particular or socially distinct. See Reyes v. Lynch, 842 F.3d 1125, 1139–
40 (9th Cir. 2016) (holding that a social group was “too amorphous,” and
therefore not particular, because it included a diffuse and shifting population);
Diaz-Torres v. Barr, 963 F.3d 976, 981 (9th Cir. 2020) (observing that being on
a “persecutor’s enemies list” is not sufficient to establish social distinction).
Neither did the BIA err in denying protection under CAT. Substantial
evidence supports the BIA’s conclusion that the past harm that Hernandez-
Marinero suffered did not amount to torture. See Ahmed v. Keisler, 504 F.3d
1183, 1200–01 (9th Cir. 2007); 8 C.F.R. § 1208.18(a)(2). Substantial evidence
also supports the BIA’s determination that Hernandez-Marinero did not establish
that any future harm would be at the instigation of, or with the consent or

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acquiescence of, public officials. See Andrade-Garcia v. Lynch, 828 F.3d 829,
836 (9th Cir. 2016) (“[A] general ineffectiveness on the government’s part to
investigate and prevent crime will not suffice to show acquiescence.”); 8 C.F.R.
§ 1208.18(a)(1).
The stay of removal remains in place until the mandate issues.
PETITION DENIED.

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