Sandra Arely Pena Flores; Josue Leonel Merroquin Pena v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SANDRA ARELY PENA FLORES;
JOSUE LEONEL MERROQUIN PENA,
Petitioners,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 19-73185
Agency Nos. A208-267-639
A208-267-640
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted June 14, 2022**
Pasadena, California
Before: RAWLINSON and CHRISTEN, Circuit Judges, and SIMON,*** District
Judge.
FILED
JUN 16 2022
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.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Michael H. Simon, United States District Judge for the
District of Oregon, sitting by designation.

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Petitioner Sandra Arely Pena Flores (Pena Flores) and her son Josue Leonel
Merroquin Pena (Josue), natives and citizens of El Salvador, seek review of the
Board of Immigration Appeals’ (BIA) final order affirming the Immigration
Judge’s (IJ) denial of Pena Flores’s application for asylum, withholding of
removal, and protection pursuant to the Convention Against Torture (CAT). Josue
seeks derivative relief through Pena Flores’s claims. We have jurisdiction
pursuant to 8 U.S.C. § 1252, and we deny the petition for review. Because the
parties are familiar with the facts, we do not recite them here.
Our review is confined to the BIA’s decision except where the BIA adopts
the IJ’s decision. See Guerra v. Barr, 974 F.3d 909, 911 (9th Cir. 2020). We
review de novo questions of law, and we review the agency’s factual findings for
substantial evidence. See Abebe v. Gonzales, 432 F.3d 1037, 1039–40 (9th Cir.
2005). Although the IJ found Pena Flores not credible, the BIA assumed Pena
Flores’s credibility and dismissed her claims on other grounds. We too assume her
credibility for purposes of our review.
1. Pena Flores sought asylum and withholding of removal based on the
proposed particular social group of “Salvadoran mothers refusing to provide
control and custody of their children to gangs.” As an initial matter, Pena Flores’s
testimony suggests gang members targeted her at her home based on generalized
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criminal motives. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010)). But
assuming she could satisfy the nexus requirement, Pena Flores bore the burden to
demonstrate a cognizable particular social group by showing 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.” Matter
of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014).
Pena Flores contends her proposed group satisfies the particularity
requirement because she “is a family member and it is clearly evident through
blood ties being the parent of her son, family has definable boundaries that are
clear and can be known precisely.” “Particularity” requires the group to “be
defined by characteristics that provide a clear benchmark for determining who falls
within the group.” Id. at 239; see also Diaz-Reynoso v. Barr, 968 F.3d 1070, 1077
(9th Cir. 2020). “The ultimate question is whether a group ‘can accurately be
described in a manner sufficiently distinct that the group would be recognized, in
the society in question, as a discrete class of persons.’” Henriquez-Rivas v.
Holder, 707 F.3d 1081, 1091 (9th Cir. 2013) (en banc) (quoting Matter of S-E-G-,
24 I. & N. Dec. 579, 584 (BIA 2008)).
Pena Flores’s proposed group is arguably distinct from the type of gang-
recruitment groups that our court has rejected in other cases. See, e.g., Barrios v.
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Holder, 581 F.3d 849, 854–55 (9th Cir. 2009) (rejecting the proposed group of
young men in Guatemala who are targeted for gang membership but refuse to join).
However, Pena Flores does not offer any evidence that her alleged persecutors
perceive the collection of individuals she identifies as a distinct group, and the
defining characteristics of the proposed group are better described as amorphous.
Henriquez-Rivas, 707 F.3d at 1091 (“[I]t is relevant in considering whether a
group’s boundaries are so amorphous that, in practice, the persecutor does not
consider it a group.”). Although we have recognized that “in some circumstances,
a family constitutes a social group,” Molina-Estrada v. I.N.S., 293 F.3d 1089, 1095
(9th Cir. 2002), the group that Pena Flores proposed is tied only to a familial
relationship, not to a specific family targeted by the gang because of their family
membership, see, e.g., Parada v. Sessions, 902 F.3d 901, 910 (9th Cir. 2018)
(“FMLN members specifically sought out the ‘particular social group’ of
[petitioner’s] family, even shouting the [petitioner’s] family name as the guerrillas
entered the family’s village.”).
Substantial evidence supports the BIA’s conclusion that Pena Flores’s
proposed particular social group does not satisfy the particularity requirement, and
therefore we need not reach the other elements of her proposed group or her nexus
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arguments. We deny the petition for review as to Pena Flores’s asylum and
withholding of removal claims.
2. Pena Flores also challenges the BIA’s dismissal of her CAT claim. To
qualify for protection pursuant to CAT, an applicant bears the burden of
establishing “it is more likely than not that [she] . . . would be tortured” with the
consent or acquiescence of the government if returned to her home country. 8
C.F.R. § 1208.16(c)(2); see also Garcia-Milian v. Holder, 755 F.3d 1026, 1033
(9th Cir. 2014). Pena Flores submitted country conditions evidence describing
widespread gang violence in El Salvador, and suggesting some corruption between
gangs and public officials. She also testified that she did not seek help from police
in El Salvador because she believes they are working with the gangs and would not
do anything to help. But substantial evidence still supports the BIA’s conclusion
that Pena Flores failed to demonstrate the requisite likelihood that she would be
tortured and that Salvadoran officials would consent or acquiesce to that torture.
Accordingly, we deny the petition for review as to Pena Flores’s CAT claim.
PETITION FOR REVIEW DENIED.
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