NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 26 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

FLOR ESTER CRUZ LOPEZ; BRAYAN No. 19-71215 ERNESTO MOLINA CRUZ; Y.S.M.C., a Juvenile Male; J.M.M.C., a Juvenile Male,* Agency Nos. A206-758-880

A206-758-881

Petitioners, A206-758-882

A206-758-883

v.

MERRICK B. GARLAND, Attorney MEMORANDUM** General,

Respondent.

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

Argued and Submitted March 5, 2021 Pasadena, California

Before: MILLER and LEE, Circuit Judges, and HILLMAN,*** District Judge. Partial Concurrence and Partial Dissent by Judge LEE

* The Board of Immigration Appeals’ order hyphenates petitioners’ last names and lists Brayan Ernesto Molina Cruz as “Brayon Molina-Cruz.” The Clerk will update the docket as indicated to accurately reflect petitioners’ names. ** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. *** The Honorable Timothy Hillman, United States District Judge for the District of Massachusetts, sitting by designation. Flor Cruz Lopez and her three sons, Brayan Molina Cruz, Y.S.M.C., and

J.M.M.C, natives and citizens of El Salvador, seek review of an order of the Board

of Immigration Appeals dismissing their appeal from an immigration judge’s

denial of their applications for asylum, withholding of removal, and protection

under the Convention Against Torture. We have jurisdiction under 8 U.S.C.

§ 1252(a)(1), and we grant the petition in part and deny the petition in part.

1. The Board correctly concluded that certain of petitioners’ proposed

particular social groups are not cognizable. We review the cognizability of a

particular social group de novo, Barbosa v. Barr, 926 F.3d 1053, 1059 (9th Cir.

2019), and the agency’s underlying factual findings for substantial evidence,

Conde Quevedo v. Barr, 947 F.3d 1238, 1242 (9th Cir. 2020). The Board correctly

reviewed the immigration judge’s underlying factual findings for clear error, and

we see no indication that the Board failed to consider the ultimate question of each

group’s cognizability de novo, as petitioners contend. See 8 C.F.R.

1003.1(d)(3)(i)–(ii).

The proposed social group of “Salvadoran women viewed as property by

gang members” lacks particularity and social distinction. The group lacks

particularity because it has no clear benchmark for determining which past or

prospective female victims of gangs belong to the group. See Nguyen v. Barr, 983

F.3d 1099, 1103 (9th Cir. 2020); Matter of W-G-R-, 26 I. & N. Dec. 208, 214

2 (B.I.A. 2014). It also lacks social distinction because it is defined solely by

reference to the persecutor’s perception, which “is not itself enough to make a

group socially distinct.” Cordoba v. Barr, 962 F.3d 479, 482–83 (9th Cir. 2020)

(quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 242 (B.I.A. 2014)).

Likewise, the proposed social groups of “Salvadoran women without the

protection of a male spouse or partner” and “Salvadoran boys without the

protection of a father” lack particularity and social distinction. As to particularity,

the concept of “protection” is amorphous and subjective. See Matter of S-E-G-, 24

I. & N. Dec. 579, 585 (B.I.A. 2008). As to social distinction, the anecdotal

evidence cited by petitioners does not compel the conclusion “that society in

general perceives, considers, or recognizes persons sharing the particular

characteristic to be a group.” Garay Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir.

2016) (emphasis omitted) (quoting W-G-R-, 26 I. & N. Dec. at 217). Nor does the

fact that community members might know their neighbors’ living situation speak

to whether society views the groups as distinct. And because “the persecutor’s

perception is not itself enough to make a group socially distinct,” the fact that

members of these groups are more likely to be targeted by gangs, if true, is not

sufficient to establish that they are socially distinct. Cordoba, 962 F.3d at 482–83

(internal quotation marks omitted).

Assuming without deciding that the agency erred in discounting Dr.

3 Boerman’s testimony about petitioners’ proposed social groups for lacking

corroboration in the record, see Castillo v. Barr, 980 F.3d 1278, 1283–84 (9th Cir.

2020), the agency’s conclusions are supported by the independent reasons

discussed above.

2. Substantial evidence supports the Board’s conclusion that Cruz Lopez

did not establish a nexus between her feared persecution and her familial

relationship to her nephew. See Santos-Ponce v. Wilkinson, 987 F.3d 886, 890 (9th

Cir. 2021) (standard of review). As the Board concluded, there is no evidence that

gang members knew of Cruz Lopez’s relation to her nephew or that Cruz Lopez

was targeted or will be targeted on account of that relationship.

3. Substantial evidence does not support the Board’s conclusion that

Molina Cruz, Y.S.M.C., and J.M.M.C. failed to establish a nexus between their

feared persecution and their familial relationship to their mother, Cruz Lopez. The

Board did not consider relevant mixed-motive evidence, including Cruz Lopez’s

credited testimony that gang members threatened to kill her sons on multiple

occasions, regularly trespassed into the home where Cruz Lopez lived with her

sons, and expressly referenced Cruz Lopez in threats to Molina Cruz. See

Baghdasaryan v. Holder, 592 F.3d 1018, 1023–24 (9th Cir. 2010). Nor did the

Board consider Dr. Boerman’s testimony that the gang’s victimization of Molina

Cruz’s was likely based on his relationship to Cruz Lopez, or Dr. Boerman’s

4 testimony that the sons are at risk of future harm due to their relationship to Cruz

Lopez. We therefore remand to the Board to reconsider whether the sons’

relationship to Cruz Lopez is “a central reason” or at least “a reason” for their

persecution in light of the record as a whole. See Barajas-Romero v. Lynch, 846

F.3d 351, 360 (9th Cir. 2017).

4. Substantial evidence does not support the Board’s conclusion that

Molina Cruz failed to establish a nexus between his feared persecution and his

imputed membership in the particular social group of “Salvadoran homosexuals.”

As the Board recognized, gang members “used sexual orientation . . . as a means to

degrade and harass [Molina Cruz].” And Molina Cruz presented ample evidence

that gang members targeted him on account of his perceived sexual orientation,

including that gang members regularly used homophobic slurs when attacking him

and that they sexually molested him while stating “they knew it was what [he]

liked since [he] liked men.” See Li v. Holder, 559 F.3d 1096, 1111–12 (9th Cir.

2009) (“Persecutors’ motivation should not be questioned when the persecutors

specifically articulate their reason for attacking a victim.”). According to Dr.

Boerman, gang members often sexually molest individuals they perceive to be gay.

Thus, the record compels the conclusion that Molina Cruz’s perceived sexual

orientation was both “a central reason” and “a reason” for his persecution. See

Tapia Madrigal v. Holder, 716 F.3d 499, 506 (9th Cir. 2013); Antonyan v. Holder,

5 642 F.3d 1250, 1255–56 (9th Cir. 2011).

5. Substantial evidence does not support the Board’s denial of

petitioners’ claims under the Convention Against Torture for failure to demonstrate

government acquiescence. See Akosung v. Barr, 970 F.3d 1095, 1104 (9th Cir.

2020). The Board failed to consider Cruz Lopez’s credible testimony that the

police told her they could not help her and hung up on her when she called to

report the gang’s extortionate demand and threats. Nor did the Board consider her

testimony that the police were willfully blind to gang activity and cooperated with

gangs. Although Cruz Lopez did not report later attacks to the police, she

explained that she did not do so because the police “never helped [her] even when

[she] needed their help.” Because the Board failed to consider this pertinent

testimony, we remand for reconsideration of petitioners’ application for relief

under the Convention. See Quiroz Parada v. Sessions, 902 F.3d 901, 914–16 (9th

Cir. 2018); Cole v. Holder, 659 F.3d 762, 772 (9th Cir. 2011).

6. The Board correctly rejected petitioners’ due process claim based on

the loss of the record for one of the six days of the removal hearing. Because the

immigration judge gave the witnesses an opportunity to re-testify and alternatively

offered to rely on their written declarations, the loss of the record did not render

the proceedings “fundamentally unfair.” Grigoryan v. Barr, 959 F.3d 1233, 1240

(9th Cir. 2020). Nor have petitioners shown “[s]ubstantial prejudice.” Id.

6 PETITION GRANTED in part, DENIED in part, and REMANDED.

Costs shall be taxed against the respondent.

7

FILED

MAR 26 2021

Cruz Lopez v. Garland, No. 19-71215 MOLLY C. DWYER, CLERK LEE, Circuit Judge, concurring-in-part and dissenting-in-part. U.S. COURT OF APPEALS

Flor Cruz Lopez and her three sons, Brayan Molina Cruz, Y.S.M.C., and

J.M.M.C have suffered tremendously at the hands of the gangs in El Salvador. I

agree with the majority that we should remand the Board of Immigration Appeal’s

(BIA) denial of Convention Against Torture protection. But I believe that

substantial evidence supports the BIA’s determination that (1) no nexus existed

between the three sons’ feared persecution and their mother, and (2) Brayan Molina

Cruz failed to establish a nexus between his feared persecution and his imputed

membership in the particular social group of “Salvadoran homosexuals.” I therefore

respectfully dissent on those two nexus issues.

1. The majority says that the BIA did not consider mixed-motive evidence

suggesting that the gang targeted the sons because of their relationship with their

mother. But I believe that the record reflects that the BIA considered and rejected

this evidence. The BIA found that “the co-respondents did not establish that their

familial relationship to their mother was or will be ‘at least one central reason’ for

the claimed prosecution.” Cf. 8 U.S.C. § 1158(b)(1)(B)(i) (stating that in mixed-

motive cases, the applicant must establish that “race, religion, nationality,

membership in a particular social group, or political opinion, was or will be at least

one central reason for persecuting the applicant”) (emphasis added). The BIA then

listed the different pieces of evidence that the IJ considered, including both the oldest child’s testimony and the fact that “gang members were also independently attacking

and threatening the co-respondents’ mother . . . after she was unable to pay the

extortion fees they demanded.” The BIA noted that after “considering the totality

of the evidence,” the IJ had found that the harm the eldest son experienced was not

sufficiently related to their relationship with their mother. To reach that conclusion,

the IJ “considered the eldest co-respondent's testimony that the harm he encountered

from the gangs began after he refused their recruitment efforts.” Put differently, the

son was not attacked after the gangs threatened his mother; he was attacked after he

rejected their recruitment efforts. I thus believe that a fair reading of the BIA’s

opinion shows that the BIA considered and rejected the mixed-motive argument.

2. Gang members use unsavory tactics to recruit new members, including

degrading those who refuse to join the gang. The IJ and BIA found that the gang

members engaged in horrendous homophobic slurs and harassed Molina Cruz

because he refused to join the gang, not because they perceived him to be gay. The

record does not compel a contrary conclusion.

The majority emphasizes Molina Cruz’s testimony that gang members

sexually molested him while stating “they knew it was what [he] liked since [he]

liked men.” But in the very next sentence, Molina Cruz said that the gang “said all

this because to them, you were gay if you would not join a gang and that was how

gay men would be treated.” This testimony suggests that the gang members — in a fit of misguided machismo — used homophobic slurs because they believed such

degrading name-calling would pressure Molina Cruz into joining the gang.

Similarly, on direct examination, the eldest son was asked, “And how often would

they approximately call you these [homophobic] names?” Answer: “Every time I

refused to join the gang.” Indeed, in front of the IJ, petitioners argued that gang

members targeted Molina Cruz “because of his unwillingness to join the gangs.”

The IJ/BIA’s conclusion flows naturally from Molina Cruz’s own testimony. We

are therefore not compelled to find otherwise. See Zheng v. Holder, 644 F.3d 829,

835 (9th Cir. 2011)

I thus respectfully dissent from the majority’s holding on the two nexus

determinations.