Gabriel Salinas Salgado v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GABRIEL SALINAS SALGADO,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-1530
Agency No.
A205-711-957
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 14, 2023**
Seattle, Washington
Before: McKEOWN and GOULD, Circuit Judges, and BAKER, International Trade
Judge.***
Gabriel Salinas Salgado petitions for review of a Board of Immigration
Appeals decision dismissing his appeal from an Immigration Judge’s denial 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 M. Miller Baker, Judge for the United States Court of
International Trade, sitting by designation.
FILED
NOV 20 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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statutory withholding of removal under 8 U.S.C. § 1231(b)(3) and protection under
the Convention Against Torture.1
The Board “adopt[ed] and affirm[ed] the Immigration Judge’s decision,”
citing Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994). “When the BIA
adopts and affirms an IJ’s decision and cites its Burbano decision, we will review
the IJ’s decision as if it were that of the BIA.” Tista v. Holder, 722 F.3d 1122, 1125
(9th Cir. 2013) (cleaned up).
1. Salinas Salgado seeks statutory withholding of removal based on
membership in a particular social group composed of “returning immigrants
resisting a criminal organization in Mexico.” An applicant seeking withholding
based on membership in a particular social group must “establish that the 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.” Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (quoting Matter of
M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014)). “Defined with particularity”
means that the proposed group must be “defined by characteristics that provide a
clear benchmark for determining who falls within the group.” Acevedo Granados v.
Garland, 992 F.3d 755, 762 (9th Cir. 2021). “In other words, the group must be
1 Salinas Salgado does not dispute his ineligibility for asylum due to such relief being
time-barred.

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discrete and have definable boundaries.” Id. “[T]he critical question is whether the
group ‘would be recognized, in the society in question, as a discrete class of
persons.’ ” Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1228 (9th Cir. 2016) (quoting
Henriquez-Rivas v. Holder, 707 F.3d 1081, 1091 (9th Cir. 2013) (en banc)).
Citing Ramirez-Munoz and Delgado-Ortiz v. Holder, 600 F.3d 1148, 1151–
52 (9th Cir. 2010) (rejecting the social group formulation “returning Mexicans from
the United States”), the IJ found that Salinas Salgado’s proposed social group
possesses neither the requisite particularity nor the social distinction to qualify as a
particular social group for purposes of statutory withholding and further noted the
group’s similarity “to other particular social groups the Ninth Circuit has previously
considered and rejected.” Salinas Salgado acknowledges the similarity of his
proposed social group to the ones we rejected in Ramirez-Munoz and Delgado-Ortiz
and admits that he “recognizes the impact of these decisions on his case.” In
response, he simply argues that State Department records show that “individuals
returning from abroad are at particular risk of being unduly targeted, and so are
visible in society due to their status as refugees.”
As the government correctly notes, a showing of “particularity” is an essential
part of establishing “membership in a particular social group.” While Salinas
Salgado’s argument could support a conclusion contrary to the IJ’s, he has failed to
offer evidence that would compel such a conclusion. INS v. Elias-Zacarias, 502 U.S.

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478, 481 & n.1 (1992) (“To reverse the BIA finding we must find that the evidence
not only supports that conclusion, but compels it . . . .”) (emphasis in original). That
failure defeats his challenge to the IJ’s ruling, and we therefore need not, and do not,
address his other theories regarding statutory withholding of removal.
2. As to the Convention Against Torture, the IJ found there is no claim nor
evidence that Salinas Salgado ever suffered past harm—much less torture—in
Mexico and that there was no claim nor evidence that he would be targeted for such
harm in the future. The IJ further emphasized that Salinas Salgado admitted that he
could live safely in Tijuana, where his brother resides.
A petitioner seeking Convention relief has the burden of demonstrating that it
is more likely than not that he will be tortured if removed, and an IJ assessing
whether the petitioner has carried that burden must consider the possibility of
relocation within the country of removal. Tzompantzi-Salazar v. Garland, 32 F.4th
696, 705 (9th Cir. 2022). Salinas Salgado fails to adequately address his admission
that he could live safely in Tijuana, and that failure dooms his challenge to the IJ’s
decision.
PETITION DENIED.

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