FILED

NOT FOR PUBLICATION

DEC 16 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DARWIN EDIMAR ALVAREZ- No. 19-71667

UMANZOR, DEYBIN EDIMAR

ALVAREZ-SANTOS, MAIRA Agency Nos. A206-793-461 JACKELINE SANTOS-SANTOS, A206-793-429 ESCARLETH MICHELL ALVAREZ- A206-793-430 SANTOS, A206-793-462

Petitioners,

v. MEMORANDUM*

WILLIAM P. BARR, Attorney General,

Respondent.

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

Submitted December 10, 2020** San Francisco, California

* 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). Before: W. FLETCHER and IKUTA, Circuit Judges, and SCHREIER,*** District Judge.

Darwin Edimar Alvarez-Umanzor, Maira Jackeline Santos-Santos, and their

two minor children, Deybin Edimar Alvarez-Santos and Escarleth Michell

Alvarez-Santos (Petitioners), are natives and citizens of El Salvador. They appeal

the decision of the Board of Immigration Appeals (BIA) that affirmed the

determination of the Immigration Judge (IJ) denying their applications for asylum,

withholding of removal, and protection under the Convention Against Torture

(CAT). This court has jurisdiction under 8 U.S.C. § 1252.

“We review denials of asylum, withholding of removal, and CAT relief for

substantial evidence and will uphold a denial supported by reasonable, substantial,

and probative evidence on the record considered as a whole.” Yali Wang v.

Sessions, 861 F.3d 1003, 1007 (9th Cir. 2017) (quoting Ling Huang v. Holder, 744

F.3d 1149, 1152 (9th Cir. 2014) (internal quotation omitted)).

The IJ found, and the BIA affirmed, that Petitioners’ eligibility for asylum

fails for two reasons: lack of particularity of the alleged social groups and lack of

nexus between persecution and social group membership. A cognizable social

group must be “(1) composed of members who share a common immutable

*** The Honorable Karen E. Schreier, United States District Judge for the District of South Dakota, sitting by designation. 2 characteristic, (2) defined with particularity, and (3) socially distinct within the

society in question.” Diaz-Reynoso v. Barr, 968 F.3d 1070, 1077 (9th Cir. 2020)

(quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (B.I.A. 2014)). Petitioners

must also demonstrate a nexus between social group membership and persecution.

Reyes v. Lynch, 842 F.3d 1125, 1132 n.3 (9th Cir. 2016).

Here, Petitioners presented what they claimed to be two cognizable social

groups to the Immigration Judge: (1) “imputed members or imputed former

members of the M-18 gang in El Salvador” and (2) “Salvadoran landowners forced

to cooperate with gangs for the benefit of the gang causing imputed gang

membership.” Substantial evidence in the record shows that these social groups

lack the particularity to be a discrete group of people that can be neatly described

or identified. See Mendoza-Alvarez v. Holder, 714 F.3d 1161, 1165 (9th Cir. 2013).

The notion of imputed gang membership is “amorphous and overbroad,” especially

in the context of widespread gang violence throughout El Salvador. Substantial

evidence also supports the BIA’s conclusion that “landowners forced to cooperate

with gangs” was “too diverse” to qualify as a particular social group. And the BIA

did not err in finding that there is no nexus between the persecution suffered by the

petitioners and membership in these groups because Salvadoran citizens not in

these groups were victimized in similar ways. Thus, the BIA’s determination that

3 Petitioners are not members of a cognizable social group is supported by

substantial evidence.

Petitioners contend that the BIA erred when it failed to address membership

in a social group based upon Santos-Santos’s gender. But the record indicates that

Petitioners never presented this alleged gender-based social group to the IJ. Thus,

the BIA correctly declined to address this issue.

The doctrines of waiver and forfeiture apply in the context of removal

proceedings. Honcharov v. Barr, 924 F.3d 1293, 1296 (9th Cir. 2019). The BIA is

“an appellate body whose function is to review, not create a record[.]” Id. (quoting

In re Fedorenko, 19 I. & N. Dec. 57, 74 (B.I.A. 1984)). Petitioners failed to argue

to the IJ that gender was a cognizable particular social group, and they failed to

argue that there was a nexus between the persecution and Santos-Santos’ gender.

The BIA did not err when it declined to consider this newly alleged group on

appeal.

PETITION DENIED.

4