Emilia Grande Mercado v. ERIC H. HOLDER, Jr., Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EMILIA GRANDE MERCADO; PEDRO
MERCADO; ARISTIDES GIOVANNI
MERCADO GRANDE; DANY
HERIBERTO MERCADO GRANDE;
SUSY YESENIA MERCADO GRANDE,
Petitioners,
v.
ERIC H. HOLDER, Jr., Attorney General,
Respondent.
No. 10-71311
Agency Nos. A088-558-110
A088-558-111
A088-558-112
A094-999-022
A088-197-449
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted June 12, 2014
San Francisco, California
Before: SCHROEDER, GRABER, and BYBEE, Circuit Judges.
Emilia Grande Mercado, Pedro Mercado, Aristides Giovanni Mercado
Grande, Dany Heriberto Mercado Grande, and Susy Yesenia Mercado Grande
(collectively “Petitioners”) petition for review of the Board of Immigration
FILED
JUL 08 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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Appeals’ (“BIA”) denial of their applications for asylum, withholding of removal,
and relief under the Convention Against Torture (“CAT”). We have jurisdiction to
review a final order of the BIA under 8 U.S.C. § 1252(a)(1).
The immigration judge (“IJ”) determined that Petitioners were credible in
their testimony and that they had a subjectively and objectively reasonable fear of
future persecution, but that they failed to demonstrate that their fear of persecution
was on account of a protected ground. The BIA affirmed the IJ’s decision that
Petitioners had failed to establish a nexus to a protected ground.
The record does not compel a contrary conclusion with respect to
Petitioners’ claims that they were persecuted on account of religion. Gu v.
Gonzales, 454 F.3d 1014, 1018 (9th Cir. 2006) (holding reversal is only warranted
where the evidence compels the contrary conclusion). While Petitioners may have
been religiously motivated, there is not compelling evidence that the gang
members were motivated by Petitioners’ religion, rather than by their anti-gang
activities and relative wealth.
Petitioners also contend that they were persecuted on account of their
membership in a particular social group, the Mercado family. The BIA concluded
that Petitioners’ family did not meet the social visibility requirement, relying on In
re S-E-G-, 24 I. & N. Dec. 579 (B.I.A. 2008) which rejected a social group that
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was defined primarily by its resistance to gang membership. Since the BIA’s
decision, however, the law has changed with regard to the social visibility
requirement. See Henriquez-Rivas v. Holder, 707 F.3d 1081, 1085 (9th Cir. 2013)
(en banc) (holding the relevant question is one of “perception” rather than “on-
sight” visibility); In re W-G-R-, 26 I. & N. Dec. 208, 217 (B.I.A. 2014) (requiring
“social distinction” rather than visibility). Further, whether a group constitutes a
particular social group must be considered on a case-by-case basis, and a group
may not be rejected solely because a similar group had previously been rejected.
Pirir-Boc v. Holder, 750 F.3d 1077, 2014 WL 1797657, at *4 (9th Cir. May 7,
2014). In light of these changes to the law, we remand to the BIA for
reconsideration.
Petitioners also propose a social group on the basis of their membership to
King’s Castle church, but that claim has not been exhausted before the BIA and we
lack jurisdiction to consider it. Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.
2004). The BIA, however, has discretion to consider that additional proposed
social group on remand.
Petitioners have not established eligibility for relief under CAT. Torture is
“an extreme form of cruel and inhuman treatment,” and Petitioners have not met
their burden of showing that they would be subjected to torture if returned to El
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Salvador. Al-Saher v. INS, 268 F.3d 1143, 1147 (9th Cir. 2001) (internal quotation
marks omitted).
The petition for review is GRANTED in part and DENIED and
REMANDED in part. Each party is to bear its own costs.
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