NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS OCT 5 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LUIS EDUARDO POZ-VELAZQUEZ, No. 22-343

Petitioner, Agency No. A208-170-639/

v.

MERRICK B. GARLAND, U.S. Attorney MEMORANDUM* General,

Respondent.

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

Submitted October 2, 2023** San Francisco, California

Before: FLETCHER, CALLAHAN and LEE, Circuit Judges.

Eduardo Luis Poz-Velazquez, a citizen of Guatemala, petitions for review of

a decision by the Board of Immigration Appeals (BIA) affirming the Immigration

Judge’s (IJ) denial of his application for asylum, withholding of removal and

* 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). protection under the Convention Against Torture (CAT). We have jurisdiction

under 8 U.S.C. § 1252(a)(1), and we deny the petition for review.

“We review de novo both purely legal questions and mixed questions of law

and fact.” Kaur v. Wilkinson, 986 F.3d 1216, 1221 (9th Cir. 2021). “We review

factual findings for substantial evidence” and will uphold them unless the evidence

compels a contrary result. Flores-Rodriguez v. Garland, 8 F.4th 1108, 1113 (9th

Cir. 2021). “Where, as here, the BIA adopts and affirms the IJ's order pursuant to

Matter of Burbano, 20 I. & N. Dec. 872, 874 (BIA 1994), and expresses no

disagreement with the IJ’s decision, we review the IJ’s order as if it were the

BIA’s.” Chuen Piu Kwong v. Holder, 671 F.3d 872, 876 (9th Cir. 2011). The

availability of collateral estoppel is a mixed question of law and fact that we

review de novo. Oyeniran v. Holder, 672 F.3d 800, 806 (9th Cir. 2012).

Poz-Velazquez makes three arguments on appeal: (1) the doctrine of

collateral estoppel bars denial of his application for asylum; (2) an anti-gang

sentiment is a cognizable political opinion; and (3) the IJ misread his proposed

particular social group (PSG) “school children who were or have been targeted by

drug traffickers/gang members in the [Petitioner’s] hometown or area in

Guatemala to sell the poppies grown there” and that this group is a valid PSG.

His arguments are not persuasive.

2 1. “[T]he doctrine of collateral estoppel (or issue preclusion) applies to an

administrative agency’s determination of certain issues of law or fact involving the

same alien in removal proceedings.” Oyeniran, 672 F.3d at 806; see also Matter of

Fedorenko, 19 I. & N. Dec. 57, 57 (BIA 1984). Collateral estoppel applies when

four conditions are met: “(1) the issue at stake was identical in both proceedings;

(2) the issue was actually litigated and decided in the prior proceedings; (3) there

was a full and fair opportunity to litigate the issue; and (4) the issue was necessary

to decide the merits.” Oyeniran, 672 F.3d at 806 (citing Montana v. United States,

440 U.S. 147, 153-54 (1979)).

Petitioner argues that because his brother (with allegedly identical

circumstances not in the record) received relief, the IJ was estopped from denying

his asylum application. The brother appears to have been granted asylum under

the Trafficking Victims Protection Reauthorization Act (TVPRA). Petitioner has

not presented any caselaw that shows a TVPRA decision from the asylum office is

considered a judgment to which collateral estoppel can apply. Assuming arguendo

that collateral estoppel could apply to this proceeding, Petitioner’s argument still

fails because there is no evidence in the record indicating identical facts were at

issue in his brother’s case. Insofar as Petitioner raises an equal protection issue,

“the fact that he received a different decision than did another alien does not raise

an equal protection issue.” Berroteran-Melendez v. I.N.S., 955 F.2d 1251, 1258

3 (9th Cir. 1992). Thus, collateral estoppel does not preclude denial of Petitioner’s

application for asylum in the present case.

2. “[A]n asylum applicant must satisfy two requirements in order to show

that he was persecuted ‘on account of’ a political opinion. First, the applicant

must show that he held (or that his persecutors believed that he held) a political

opinion. Second, the applicant must show that his persecutors persecuted him (or

that he faces the prospect of such persecution) because of his political opinion.”

Navas v. INS, 217 F.3d 646, 656 (9th Cir. 2000) (internal citations omitted).

The IJ found that Petitioner failed to show “he was or would be targeted by

gang members as a result of an implied political opinion . . .” because Petitioner

did not “identif[y] any political opinion in any evidence of record, other than

testifying that he objected to selling drugs for the gang members.” Petitioner

argues his resistance constitutes a political opinion.

However, while anti-gang resistance can form the basis for an asylum claim,

Pirir-Boc v. Holder, 750 F.3d 1077 (9th Cir. 2014), Petitioner did not take

concrete steps to oppose gangs sufficient to support a finding of persecution on

account of his political opinion. See Soriano v. Holder, 569 F.3d 1162, 1165 (9th

Cir. 2009) (finding informing the police about gang activities insufficient to show

actual or imputed political opinion) abrogated on other grounds by Henriquez-

Rivas v. Holder, 707 F.3d 1081 (9th Cir. 2013); see also Matter of S-E-G-, 24 I. &

4 N. Dec. 579, 589 (BIA 2008) (“[R]espondents did not establish what political

opinion, if any, they held, and they have provided no evidence, direct or

circumstantial, that the MS-13 gang in El Salvador imputed, or would impute to

them, an anti-gang political opinion.”). 1

3. A PSG is “(1) a group composed of members who share a common

immutable characteristic; (2) defined with particularity; and (3) socially distinct

within the society in question.” Diaz-Torres v. Barr, 963 F.3d 976, 980 (9th Cir.

2020 (internal quotations and citations omitted).

Contrary to Petitioner’s claim, the IJ did not misread counsel’s proposed

social group when it stated, “school children who were or have been targeted by

drug traffickers/gang members in the [Petitioner’s] hometown or area in

Guatemala to see the poppies grown there.” Based on language from the IJ’s

decision, it is apparent that the IJ understood Petitioner’s proposed group included

children targeted to sell drugs when she wrote, “[Petitioner] objected to selling

drugs for the gang members.” The typo in the IJ’s decision does not undermine the

IJ’s determination.

1 The IJ also found that he did “not suffer harm that compels a finding of persecution” which Petitioner does not challenge. Regardless of Petitioner’s assertion he suffered harm on account of a protected ground, without actual persecution, Petitioner’s claim fails. Navas, 217 F.3d at 656.

5 In either case, the IJ’s rationale withstands review. The IJ relied on the

BIA’s holding that “a social group cannot be defined exclusively by the harm

suffered.” (citing Matter of W-G-R-, 26 I. & N. Dec. 208, 218 (BIA 2014)).

Whether the IJ understood counsel’s argument as “to sell” or “to see,” counsel’s

proposed social group is still defined by the harm suffered — children targeted to

do X for the gang. Thus, school children who were or have been targeted by drug

traffickers/gang members in the Petitioner’s hometown or area in Guatemala to sell

or to see the poppies grown there do not constitute a PSG. See Ramos-Lopez v.

Holder, 563 F.3d 855, 862 (“[W]e hold that young Honduran men who have been

recruited by gangs but refuse to join do not constitute a particular social group.”)

abrogated on other grounds by Henriquez-Rivas, 707 F.3d at 1093.

Because the doctrine of collateral estoppel is inapplicable in this case, and

because there is no error in the agency finding that Petitioner failed to show

persecution on account of a protected ground, Petitioner’s appeal is unpersuasive.

Nothing in the record compels a reversal of the BIA’s decision. Bringas-

Rodriguez v. Sessions, 850 F.3d 1051, 1059 (9th Cir. 2017).

The petition is DENIED.

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