GARCIA FELIPE v. WILKINSON (2021)

United States Court of Appeals, Ninth Circuit.2021-02-11No. No. 18-73381

Summary · law.co

Holding. The petition is denied, affirming the BIA's dismissal of Garcia-Felipe's asylum, withholding of removal, and Convention Against Torture claims.

Elvis Jaisel Garcia-Felipe, a Guatemalan citizen, sought asylum, withholding of removal, and Convention Against Torture protection. The Board of Immigration Appeals rejected his applications, and Garcia-Felipe petitioned for judicial review. The court examined whether he qualified for protection based on claimed membership in particular social groups and whether he faced torture risk if returned to Guatemala.

The court found that Garcia-Felipe's proposed social groups—young males resisting gang recruitment and individuals cooperating with authorities—lacked the legal particularity and social distinction required for asylum eligibility. The court noted similar groups have been rejected in prior cases and found no evidence that Guatemalan society views gang-cooperation informants as socially distinct. Regarding his torture claim, the court determined the record did not establish a likelihood of torture by the government or with its consent, emphasizing that police awareness of gang threats without prosecuting perpetrators does not prove governmental acquiescence to torture.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Whether proposed social groups satisfy legal particularity and social distinction requirements for asylum
Whether young males resisting gang recruitment constitute a cognizable social group
Whether individuals reporting gang activity to police form a distinct social group
Whether police awareness of gang threats establishes government acquiescence to torture

Procedural posture

The Board of Immigration Appeals dismissed Garcia-Felipe's applications for asylum and related relief, and he petitioned for judicial review of that administrative dismissal.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

MEMORANDUM **

Elvis Jaisel Garcia-Felipe, a Guatemalan native and citizen, petitions for review of the Board of Immigration Appeals’ (BIA) dismissal 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 and, reviewing the BIAs legal conclusions de novo and its factual findings for substantial evidence, we deny the petition.

The BIA did not err in rejecting as insufficiently particular or distinct Garcia-Felipes proposed social groups—“young males ․ opposed to gang recruitment” and “individuals who have cooperated with authorities and are threatened by members of criminal organizations.” Indeed, we have rejected nearly identical groups on these grounds before. See, e.g., Barrios v. Holder, 581 F.3d 849, 854-55 (9th Cir. 2009) (“young males in Guatemala who are targeted for gang recruitment but refuse” lacked particularity), abrogated in part by Henriquez-Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013) (en banc); Santos-Lemus v. Mukasey, 542 F.3d 738, 744-46 (9th Cir. 2008) (“young men in El Salvador resisting gang violence” lacked particularity), abrogated in part by Henriquez-Rivas, 707 F.3d 1081; Conde Quevedo v. Barr, 947 F.3d 1238, 1243 (9th Cir. 2020) (“[Guatemalans] who report the criminal activity of gangs to the police” lacked social distinction (internal quotation marks omitted)). And unlike the record at issue in Henriquez-Rivas, 707 F.3d 1081, the record here contains no indication that Guatemalan society views those who cooperate with authorities as somehow set apart from society at large. Garcia-Felipes asylum and withholding claims therefore fail.

Substantial evidence likewise supports the agencys denial of Garcia-Felipes CAT claim, as the record does not conclusively establish that he faces a likelihood of torture, either by the government or with its acquiescence, in Guatemala. See Dhital v. Mukasey, 532 F.3d 1044, 1051 (9th Cir. 2008) (per curiam). He reported the gangs threats to the police on one occasion and points out that the gang continued intimidating people in the area. However, “[e]vidence that the police were aware of a particular crime, but failed to bring the perpetrators to justice, is not in itself sufficient to establish acquiescence.” Garcia-Milian v. Holder, 755 F.3d 1026, 1034 (9th Cir. 2014).

PETITION DENIED.