Ever Morales-Gomez v. JEFFERSON B. SESSIONS III, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EVER MORALES-GOMEZ,
Petitioner,
v.
JEFFERSON B. SESSIONS III, Attorney
General,
Respondent.
No. 17-70480
Agency No. A206-898-331
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Argued and Submitted April 9, 2018
San Francisco, California
Before: D.W. NELSON, KLEINFELD, and W. FLETCHER, Circuit Judges.
Ever Morales-Gomez (“Petitioner”), a native and citizen of El Salvador,
petitions for review of the Board of Immigration Appeals’ (“BIA”) denial of
asylum and withholding of removal. Petitioner sought relief based on his
membership in a particular social group (“PSG”) defined as “young Salvadoran
FILED
MAY 11 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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males who are perceived to be a member of a particular gang because of where
they live and/or go to school.” We have jurisdiction under 8 U.S.C. § 1252, and
we deny the petition.
“Whether a group constitutes a ‘particular social group’ is a question of law”
that we review de novo. Pirir-Boc v. Holder, 750 F.3d 1077, 1081 (9th Cir. 2014).
However, we review for substantial evidence the necessary factual determinations
underlying this legal question, such as whether a PSG is immutable, particular, and
socially distinct. See Garcia v. Holder, 749 F.3d 785, 789 (9th Cir. 2014).
Petitioner did not adduce substantial evidence to establish that his proposed
PSG is immutable. Petitioner argued that his past identification as a rival gang
member because of where he lived and went to school was an immutable
characteristic. However, Petitioner failed to show that he was prevented from
transferring schools in El Salvador, or that the school he attended was fundamental
to his identity or conscience. See In Re C-A-, 23 I. & N. Dec. 951 (BIA 2006).
Petitioner’s ability to transfer schools to avoid gang harassment is evinced by his
testimony that his younger brother changed schools in order to avoid frequenting
rival gang “turf,” and that he experienced no threats thereafter. Additionally, any
notion that attendance at that specific school was fundamental to Petitioner’s
identity is undermined by the fact that Petitioner stopped attending his school, and
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subsequently encountered no gang threats, before leaving his school indefinitely
for the United States.
Petitioner also did not adduce substantial evidence to demonstrate that his
PSG is particular. Petitioner’s PSG lacks discreteness for its shared characteristic
of being “perceived [as a gang member]” and the shared geographical
characteristic of “where they go to school” as implicated by gang territories. It is
unclear how the court is to determine that an individual has been “perceived” to be
a gang member, Donchev v. Mukasey, 553 F.3d 1206, 1217 (9th Cir. 2009), and the
record indicates that the boundaries of gang territories are not easily identified. Id.
Nor did Petitioner show that his PSG is socially distinct. This court has held
that young men who resist gang recruitment do not constitute a particular social
group because gang recruitment and subsequent violence are often so wide-spread
that it lacks sufficient particularity and social distinction. See Barrios v. Holder,
581 F.3d 849, 855 (9th Cir. 2009). Petitioner provided reports and articles that
point to wide-spread gang violence in El Salvador, harming individuals
irrespective of their membership in the proposed PSG.
PETITION DENIED.
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