NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 15 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

FERNANDO RODRIGUEZ-RODAS, No. 20-72542

Petitioner, Agency No. A206-628-399

v.

MEMORANDUM*

MERRICK B. GARLAND, Attorney General,

Respondent.

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

Submitted December 10, 2021** Seattle, Washington

Before: McKEOWN, MILLER, and BADE, Circuit Judges.

Fernando Rodriguez-Rodas, a native and citizen of El Salvador, petitions for

review of the Board of Immigration Appeals’ (“BIA”) decision dismissing his

appeal from the Immigration Judge’s denial of his application for asylum,

withholding of removal, and protection under the Convention against Torture

* 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). (“CAT”). We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition.

We review an agency’s factual findings for substantial evidence, and “[t]he

agency’s ‘findings of fact are conclusive unless any reasonable adjudicator would

be compelled to conclude to the contrary.’” Nasrallah v. Barr, 140 S. Ct. 1683,

1692 (2020) (quoting 8 U.S.C. § 1252(b)(4)(B)). We review de novo the agency’s

conclusions of law. See Bringas-Rodriguez v. Sessions, 850 F.3d 1051, 1059

(9th Cir. 2017) (en banc).

1. Rodriguez-Rodas contends he is entitled to asylum and statutory

withholding of removal based on his membership in the particular social group of

“Salvadoran material witnesses of gang crimes.”1 See 8 U.S.C. §§ 1101(a)(42)(A),

1158(b)(1)(A) (asylum); 1231(b)(3) (withholding of removal). A claim of asylum

or withholding of removal based on membership in a particular social group

requires the applicant to “establish that the group is (1) composed of members who

share a common immutable characteristic, (2) defined with particularity, and

(3) socially distinct within the society in question.” Reyes v. Lynch, 842 F.3d

1125, 1131 (9th Cir. 2016) (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237

(BIA 2014)).

The BIA permissibly rejected the proposed particular social group

1 Rodriguez-Rodas also sought relief based on membership in another social group and imputed political opinion, but the agency’s related rulings are not before us.

2 “Salvadoran material witnesses to gang crimes” as not cognizable because it lacks

sufficient particularity. Cf. Nguyen v. Barr, 983 F.3d 1099, 1103–04 (9th Cir.

2020) (rejecting proposed group of “known drug users” as “amorphous, overbroad,

diffuse, or subjective”). The record evidence does not compel the conclusion that

the terms “material witness” and “gang crimes” have “commonly accepted

definitions” in Salvadoran society. Reyes, 842 F.3d at 1135 (recognizing that a

particularity requires “that a particular social group have clear boundaries and that

its characteristics have commonly accepted definitions”); cf. Henriquez-Rivas v.

Holder, 707 F.3d 1081, 1093 (9th Cir. 2013) (observing that membership in social

group of “those who had testified against M–18 gang members in open court”

could be easily verified and delimited through court records documenting the

group members’ testimony (emphasis removed)).

The BIA also permissibly rejected the proposed social group “Salvadoran

material witnesses of gang crimes” as lacking social distinction because

Rodriguez-Rodas did not present sufficient evidence that Salvadoran society

perceives that group as a discrete class of persons. See Reyes, 842 F.3d at 1136;

Matter of M-E-V-G-, 26 I & N Dec. at 238 (“The members of a particular social

group will generally understand their own affiliation with the grouping, as will

other people in the particular society.”).

3 The BIA applied the correct legal standard in concluding that there was

insufficient evidence that the particular social group had “unique vulnerability”

and social distinction. See Diaz-Torres v. Barr, 963 F.3d 976, 980 (9th Cir. 2020)

(internal quotation marks omitted). There is no indication that the BIA failed to

consider the record evidence. Its failure to specifically mention every piece of

evidence does not suggest that it failed to review all of the evidence. See

Najmabadi v. Holder, 597 F.3d 983, 990–91 (9th Cir. 2010) (rejecting the

argument that the mere failure to mention evidence shows that the BIA failed to

consider all the evidence). Accordingly, we affirm the BIA’s decision that

Rodriguez-Rodas’s proposed social group of “Salvadoran material witnesses of

gang crimes” is not cognizable and its denial of asylum based on the failure to

establish a nexus between the alleged persecution and a protected ground.2

2. Rodriguez-Rodas’s failure to establish membership in a cognizable

social group forecloses his statutory withholding of removal claim because even if

the harm he experienced, or might experience in the future, rose to the level of

persecution, he failed to show the requisite nexus to a protected ground. See 8

U.S.C. § 1231(b)(3); see also Barajas-Romero v. Lynch, 846 F.3d 351, 358–59

2 Applicants for asylum and withholding of removal must show a nexus between the persecution and a protected ground. See Baghdasaryan v. Holder, 592 F.3d 1018, 1023 (9th Cir. 2010). Because Rodriguez-Rodas has not shown the requisite nexus, we need not consider whether he experienced persecution.

4 (9th Cir. 2017) (holding that the protected ground need only be “a reason” for

withholding of removal claims, whereas it must be “one central reason” for asylum

claims). Therefore, we affirm the BIA’s determination that Rodriguez-Rodas is

not entitled to withholding of removal.

3. Rodriguez-Rodas also argues that he is eligible for CAT protection.

To be eligible for CAT relief, Rodriguez-Rodas must show that he “will more

likely than not be tortured” by or with acquiescence from public officials or others

acting in an official capacity if removed to El Salvador. See Xochihua-Jaimes v.

Barr, 962 F.3d 1175, 1183 (9th Cir. 2020); 8 C.F.R. §§ 1208.16(c)(2),

1208.18(a)(1). Even if Rodriguez-Rodas could show he would be tortured by gang

members, substantial evidence supports the BIA’s finding that he failed to show

that any torture would occur with the consent, acquiescence, or willful blindness of

a government official or person acting in an official capacity considering evidence

of El Salvador’s anti-gang measures and its witness protection program that has

had some success. 8 C.F.R. § 1208.18(a)(1).

PETITION DENIED.

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