Marvin Alexander Argueta- Gutierrez v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARVIN ALEXANDER ARGUETA-
GUTIERREZ; CRISTIAN ARGUETA-
ARGUETA; NOEMY SARAI ARGUETA
DE ARGUETA; ISAAC JEREMIAS
ARGUETA-ARGUETA; MARVIN
CRISTOPHER ARGUETA-ARGUETA,
Petitioners,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 22-1419
Agency Nos.
A208-544-102
A208-284-344
A208-284-343
A208-544-103
A208-544-104
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 17, 2023**
Pasadena, California
Before: BYBEE, FISHER,*** and LEE, Circuit Judges.
* 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 D. Michael Fisher, United States Circuit Judge for the
Court of Appeals, 3rd Circuit, sitting by designation.
FILED
JAN 9 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Marvin Argueta-Gutierrez and Noemy Argueta de Argueta are natives and
citizens of El Salvador. They petition for review of the Board of Immigration
Appeals’ (BIA’s) dismissal of their appeal from the Immigration Judge’s (IJ’s)
denial of their applications for asylum, withholding of removal, and protection
under the United Nations Convention Against Torture (CAT). Petitioners’
children—Marvin, Cristian, and Isaac—are derivative applicants whose petitions
ride on their parents’. We deny the petition.
“Where, as here, the BIA agrees with the IJ decision and also adds its own
reasoning, we review the decision of the BIA and those parts of the IJ’s decision
upon which it relies.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1027–28 (9th Cir.
2019). We review the BIA’s legal conclusions de novo and its factual findings for
substantial evidence. Plancarte Sauceda v. Garland, 23 F.4th 824, 831 (9th Cir.
2022).
1. Asylum may be granted to a noncitizen who can “demonstrate a
likelihood of ‘persecution or a well-founded fear of persecution on account of race,
religion, nationality, membership in a particular social group, or political
opinion.’” Sharma v. Garland, 9 F.4th 1052, 1059 (9th Cir. 2021) (quoting 8
U.S.C. § 1101(a)(42)(A)). Statutory withholding of removal must be granted where
it is more likely than not that a noncitizen’s “life or freedom would be threatened”
on account of those same grounds. 8 U.S.C. § 1231(b)(3)(A); Silva v. Garland, 993

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F.3d 705, 719 (9th Cir. 2021).
A petitioner is not eligible for asylum or withholding of removal if
persecution could be avoided by relocating to another part of the petitioner’s native
country, and relocation is reasonably possible. Kaiser v. Ashcroft, 390 F.3d 653,
659 (9th Cir. 2004) (asylum); 8 C.F.R. § 1208.16(b)(1)(i)(B) (withholding). The
BIA concluded the Arguetas did not show they would be unable to relocate
internally; in fact, they forfeited the issue by not raising it. Before us, too, the
Arguetas have forfeited it: although they briefly refer to the issue in their statement
of the case, it is not discussed in the body of their brief. See Martinez-Serrano v.
INS, 94 F.3d 1256, 1259 (9th Cir. 1996). This, alone, is sufficient reason to deny
the Arguetas’ petition with respect to asylum and statutory withholding of removal.
2. There are other reasons as well. The Arguetas assert they have a
reasonable fear of persecution on account of their membership in a particular social
group: “those that run small, independent businesses.” The BIA concluded that this
proposed social group is not socially distinct.
A particular social group must be, among other things, “socially distinct
within the society in question.” Akosung v. Barr, 970 F.3d 1095, 1103 (9th Cir.
2020) (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014)). A
group may be distinct because it is viewed that way by society as a whole, by those
in a particular region, or by members of another social group. Diaz-Torres v. Barr,

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963 F.3d 976, 980 (9th Cir. 2020). Distinctiveness “is not, however, assessed from
the perspective of the persecutors.” Id. (citation omitted). Yet this is precisely what
the Arguetas claim: that small business owners are “highly visible to bad actors.”
Aside from making that legally insufficient contention, the Arguetas point to no
record support for their social distinction argument. And our careful review of the
record reveals no evidence that Salvadorans perceive small business owners as a
distinct group. In short, the BIA did not err, nor did its underlying findings lack
substantial evidence, with regard to social distinction.
3. The BIA also held that even if “small business owners” was a distinct
group, membership in it was not “one central reason,” or even “a reason,” for any
persecution the Arguetas may have suffered. Barajas-Romero v. Lynch, 846 F.3d
351, 358 (9th Cir. 2017). The BIA held the evidence did not demonstrate that the
Arguetas’ “antagonists were motivated by anything other than pecuniary gain or
enlarging the ranks of their criminal group.” The BIA was correct that “harassment
by criminals motivated by theft or random violence by gang members” is not
causally related to a protected ground. Zetino v. Holder, 622 F.3d 1007, 1016 (9th
Cir. 2010).
4. Under the CAT, a noncitizen may not be returned to a country “where
there are substantial grounds for believing that he [or she] would be in danger of
being subjected to torture.” Al-Saher v. INS, 268 F.3d 1143, 1146 (9th Cir. 2001),

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as amended, 355 F.3d 1140 (9th Cir. 2004) (citation omitted). Torture is “an
extreme form of cruel and inhuman treatment” that is “inflicted by, or at the
instigation of, or with the consent or acquiescence of, a public official.” 8 C.F.R.
§ 1208.18(a)(1), (2).
The BIA did not err, nor did its underlying factual findings lack substantial
evidence, when it concluded the Arguetas would not be tortured. The evidence
shows an unfortunate level of gang activity in El Salvador, but not that the
government acquiesces. Nor does the outcome of the investigation into the
burglary at the Arguetas’ home and business show acquiescence to torture by
public officials. “[A] general ineffectiveness on the government’s part to
investigate and prevent crime will not suffice to show acquiescence.” Andrade-
Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016).
The petition for review is DENIED.

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