Erik Olivares-Calixto v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERIK OLIVARES-CALIXTO,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
No. 16-71664
Agency No. A087-522-423
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted November 7, 2017
Portland, Oregon
Before: FERNANDEZ, W. FLETCHER, and MELLOY,** Circuit Judges.
Erik Olivares-Calixto, a native and citizen of Mexico, petitions for review of
an immigration judge’s (IJ) decision that affirmed an asylum officer’s (AO)
negative reasonable fear determination. Olivares-Calixto expressed a fear of
returning to Mexico during proceedings to reinstate a prior order of removal. He
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Michael J. Melloy, United States Circuit Judge for the
U.S. Court of Appeals for the Eighth Circuit, sitting by designation.
FILED
JAN 16 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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alleged a fear of persecution as a member of “a particular social group,” 8 U.S.C.
§ 1231(b)(3)(A), based on his gang tattoos and former gang membership, culturally
American upbringing, and status as a “pocho” (a returning, seemingly non-native
Mexican). He also alleged a fear of torture. We deny the petition.
We review factual findings underlying an IJ’s negative reasonable fear
determination for substantial evidence. Andrade-Garcia v. Lynch, 828 F.3d 829,
833 (9th Cir. 2016). Here, we repeat the facts known to the parties only as
necessary to explain our decision. We review questions of law de novo. Arteaga
v. Mukasey, 511 F.3d 940, 944 (9th Cir. 2007). “Whether a group constitutes a
‘particular social group’ is a question of law.” Pirir-Boc v. Holder, 750 F.3d 1077,
1081 (9th Cir. 2014).
I
To qualify for withholding of removal, Olivares-Calixto must show his “life
or freedom would be threatened” in Mexico on account of his “race, religion,
nationality, membership in a particular social group, or political opinion.” 8
U.S.C. § 1231(b)(3)(A). Olivares-Calixto claims to be a member of the particular
social group: “Americanized, male, tattooed, recent gang apostates.”
Our court has made clear that Americanized individuals do not constitute a
particular social group. See Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1228–29
(9th Cir. 2016) (holding that neither “actual or imputed wealthy Americans” nor

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“those who are light-skinned, fit, and have American mannerisms or accents”
constitutes a particular social group); Delgado-Ortiz v. Holder, 600 F.3d 1148,
1150–52 (9th Cir. 2010) (per curiam) (holding that “Mexicans returning home
from the United States who are targeted as victims of violent crime” are not a
particular social group). We also have held, generally, that former gang members
or persons with gang tattoos do not qualify as a cognizable social group. See
Arteaga, 511 F.3d at 945–46 (holding that a “[t]attooed gang member” does not
qualify as a member of a particular social group for purposes of withholding of
removal, and “the category of non-associated or disaffiliated persons . . . is far too
unspecific and amorphous to be called a social group, whether that person is
tattooed or not”). While the Ninth Circuit has not yet discussed the term “pocho,”
we sufficiently addressed the underlying concept in Delgado-Ortiz and Ramirez-
Munoz.
Finally, while Olivares-Calixto adds together elements of his identity in an
attempt to create a narrowly defined social group, the sum of these parts, regardless
of their narrowness, does not qualify as a “particular social group.” See Arteaga
511 F.3d at 942 (noting the court should not be “misled by expansive and abstract
definitions of the term ‘social group’ to the extent that the application of such a
definition fails to comport with the manifest legislative purpose of the law and its
language”). As Olivares-Calixto failed to demonstrate membership in a statutorily

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protected group, the IJ correctly determined Olivares-Calixto is ineligible for
withholding of removal, and, therefore, could not establish a reasonable fear for
withholding purposes.
II
To qualify for protection under the Convention Against Torture, Olivares-
Calixto must demonstrate “that it is more likely than not that he . . . would be
tortured if removed to the proposed country of removal.” Andrade v. Lynch, 798
F.3d 1242, 1245 (9th Cir. 2015) (per curiam) (quoting 8 C.F.R. § 208.16(c)(2)).
“Torture is an extreme form of cruel and inhuman treatment and does not include
lesser forms of cruel, inhuman or degrading treatment or punishment that do not
amount to torture.” 8 C.F.R. § 208.18(a)(2). Given the facts, Olivares-Calixto’s
past experiences in Mexico do not rise to the level of torture, and his claims of
future torture are speculative. Without facts supporting the existence of torture or
future risk of torture, we conclude substantial evidence supports the IJ’s finding
that Olivares-Calixto did not demonstrate a reasonable fear of torture.
III
Olivares-Calixto also raises a due process issue, arguing the AO and IJ did
not adequately analyze the arguments and expert evidence. While the IJ could
have provided additional detail in his order, further analysis was not necessary to
meet the requirements of due process. Due process is a flexible concept applied

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situationally. See Mathews v. Eldridge, 424 U.S. 319, 334–35 (1976). Here, the
process afforded Olivares-Calixto, an alien with a reinstated order of removal, is
viewed in light of the more substantial process already received in the initial
removal proceeding. See Alvarenga-Villalobos v. Ashcroft, 271 F.3d 1169, 1174
(9th Cir. 2001).
Olivares-Calixto was represented by counsel during the AO interview and
two hearings before the IJ. In the first hearing, the IJ gave counsel for Olivares-
Calixto an option to either postpone the second hearing to accommodate in-person
expert testimony or submit written affidavits. Counsel opted to submit affidavits.
In the second hearing, the IJ noted he had considered Olivares-Calixto’s brief,
documentary evidence, and two expert reports. The IJ’s verbal and written orders
cite factually analogous and legally on-point Ninth Circuit precedent and reflect an
application of the facts and arguments found in the record. Finally, as the IJ’s
review of the AO’s initial negative reasonable fear determination is de novo, 8
C.F.R. § 1003.42(d), and the IJ addressed both of the expert opinions on the
record, an argument as to a possible AO inconsistency is ultimately insignificant.
For these reasons, Olivares-Calixto was afforded a fair hearing that comports with
the requirements of due process.
This petition is DENIED.

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