NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 10 2025

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE ALVAREZ-AYALA, No. 24-3249 Agency No. Petitioner, A088-521-918 v.

MEMORANDUM*

PAMELA BONDI, Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted September 18, 2025** Seattle, Washington

Before: GOULD and DE ALBA, Circuit Judges, and PITMAN, District Judge.***

Petitioner Jose Alvarez-Ayala (“Alvarez-Ayala”) petitions our Court to vacate

the Executive Office of Immigration Review (“EOIR”) Immigration Judge’s (“IJ”)

decision affirming the Department of Homeland Security (“DHS”) asylum officer’s

* 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 Robert Pitman, United States District Judge for the Western District of Texas, sitting by designation. negative reasonable fear of persecution and torture determinations. Petitioner argues

that he was denied due process by the reviewing IJ based on her failure to

independently review the record. Petitioner also argues that the IJ’s affirmance of

the asylum officer’s negative reasonable fear of persecution and torture

determinations are not supported by substantial evidence. We have jurisdiction

pursuant to 8 U.S.C. § 1252 and grant the petition, vacate the IJ’s May 21, 2024

order in part, and remand to the EOIR for the reasons below.

Applicants for withholding of removal based upon a reasonable fear of

persecution or torture are entitled to de novo review of an asylum officer’s initial

negative reasonable fear determination. See, e.g., Bartolome v. Sessions, 904 F.3d

803, 812 (9th Cir. 2018); Zuniga v. Barr, 946 F.3d 464, 467 (9th Cir. 2019) (per

curiam) (as amended). An IJ reviewing an asylum officer’s initial determinations

de novo must “freely consider[] the matter anew, as if no decision had been rendered

below.” Bartolome, 904 F.3d at 812 (quoting Dawson v. Marshall, 561 F.3d 930,

933 (9th Cir. 2009)). If there is a due process violation and “plausible scenarios

[exist] in which the outcome of the proceedings would have been different if a more

elaborate process were provided,” the applicant is entitled to relief. See Tamayo-

Tamayo v. Holder, 725 F.3d 950, 954 (9th Cir. 2013) (internal quotations and

citation omitted).

The IJ here merely “rubber stamped” the asylum officer’s initial

2 24-3249 determination by copying and pasting the asylum officer’s rationale verbatim into

her order, adding almost no further analysis. Despite the IJ’s statement at the hearing

that she had “reviewed the materials,” the IJ’s wholesale copying and pasting of the

asylum officer’s reasoning indicates that the IJ did not independently review

Alvarez-Ayala’s case de novo. See Cole v. Holder, 659 F.3d 762, 771 (9th Cir. 2011)

(explaining that where “the record . . . indicates a failure to consider all the

evidence,” reviewing courts cannot take statements that judges reviewed all the

evidence as fact). The rationale contained in the IJ’s order is nearly word for word

the rationale contained in the asylum officer’s initial determination. Despite

accepting the 2023 El Salvador Country Conditions Report into evidence, there is

no indication that the IJ considered this material because she used the same rationale

as the asylum officer who never had reviewed this piece of evidence.

The IJ’s denial of Alvarez-Ayala’s right to de novo review of the asylum

officer’s initial negative reasonable fear of torture determination prejudiced Alvarez-

Ayala. An applicant need only establish a ten percent or greater chance of being

tortured upon return to their home country to pass a reasonable fear screening

interview. See Alvarado-Herrera v. Garland, 993 F.3d 1187, 1195-96 (9th Cir.

2021). A non-citizen’s own credible statements can “satisfy[] the ten percent

threshold.” Id. at 1197. Reasonable fear interviews are not on the merits and are

used “simply to screen out frivolous claims.” Id. at 1196. An IJ reviewing the record

3 24-3249 de novo could plausibly find Alvarez-Ayala faces a ten percent or greater chance of

being tortured upon his return to El Salvador. Such a finding is plausible but is not

compelled by the record evidence, so rather than reverse for clear error, we remand

to the EOIR for a de novo determination on this point based upon the due process

violation.

The due process violation did not prejudice Alvarez-Ayala on his reasonable

fear of persecution claim. An individual establishes a reasonable fear of persecution

by showing there is “a reasonable possibility that [they] would be persecuted on

account of . . . race, religion, nationality, membership in a particular social group

or political opinion.” 8 C.F.R. § 208.31(c) (emphasis added). To be a cognizable

social group, the group must be discrete and have definable boundaries. See Reyes

v. Lynch, 842 F.3d 1125, 1135 (9th Cir. 2016). The petitioner must show the

purported social group (1) has defining characteristics that are immutable, (2) can be

identified with particularity, and (3) are understood to be distinct within their society.

See Vasquez-Rodriguez v. Garland, 7 F.4th 888, 897 (9th Cir. 2021) (internal

citations omitted). This inquiry “is not . . . assessed from the perspective of the

persecutors,” but from the perspective of El Salvador society. Diaz-Torres v. Barr,

963 F.3d 976, 980 (9th Cir. 2020).

While “persons who are incorrectly perceived to be gang members” may

constitute a cognizable social group, Vasquez-Rodriguez, 7 F.4th at 898, the

4 24-3249 “applicant bears the burden to demonstrate that the proposed country of removal

recognizes the group in question,” Gutierrez-Alm v. Garland, 62 F.4th 1186, 1200

(9th Cir. 2023). Alvarez-Ayala fails to meet that burden. He offers evidence only

of how police and gang members, his would-be persecutors, view perceived gang

members and members of his colony. But he offers no evidence that Salvadoran

society views these groups as sufficiently distinct to make them cognizable social

groups. For that reason, it is not plausible that the IJ would have found Alvarez-

Ayala established a reasonable fear of persecution but for the due process violation.

So, that claim was not prejudiced by the violation.

In sum, the IJ’s lack of de novo review of the asylum officer’s initial

determinations violated Alvarez-Ayala’s due process rights. It is plausible that but

for the due process violation, Alvarez-Ayala may have advanced past the screening

stage on his reasonable fear of torture claim, but because of Alvarez-Ayala’s

inadequate showing he is in a cognizable social group, it is not plausible he would

have advanced on his reasonable fear of persecution claim. We VACATE only the

IJ’s negative reasonable fear of torture determination and REMAND for de novo

review of the asylum officer’s initial determination on that point.

PETITION GRANTED; VACATED IN PART AND REMANDED.

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