Gaspar Diego-Antonio v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GASPAR DIEGO-ANTONIO,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-73706
Agency No. A216-268-941
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted November 15, 2022**
San Francisco, California
Before: McKEOWN and PAEZ, Circuit Judges, and MOLLOY,*** District Judge.
Petitioner Gaspar Diego-Antonio, a native and citizen of Guatemala,
petitions for review of the Board of Immigration Appeals’ (“BIA”) order
* 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 Donald W. Molloy, United States District Judge for
the District of Montana, sitting by designation.
FILED
DEC 6 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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dismissing his appeal of an Immigration Judge’s (“IJ”) decision denying his
application for asylum and withholding of removal.1 Where, as here, the BIA
affirmed the IJ’s decision without issuing an opinion, “we treat the IJ’s statement
of reasons as the BIA’s and review the IJ’s decision.” Gonzalez v. I.N.S., 82 F.3d
903, 907 (9th Cir. 1996). We have jurisdiction under 8 U.S.C. § 1252. The
agency’s factual findings supporting its legal conclusions are reviewed for
substantial evidence. Singh v. Holder, 656 F.3d 1047, 1051 (9th Cir. 2011). We
review de novo questions of law. Id. We deny the petition for review.
1. The IJ denied Diego-Antonio’s application for asylum and withholding of
removal because he failed to establish that his proposed particular social group—
“young men who refuse to join gangs to commit illegal acts”—was cognizable.
See 8 U.S.C § 1158(b)(1); 8 U.S.C. § 1231(b)(3)(A). Substantial evidence
supports this determination. To be cognizable, a particular social group must be
“(1) composed of members who share a common immutable characteristic, (2)
defined with particularity, and (3) socially distinct within the society in question.”
Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir. 2016) (citing Matter of M-E-V-G-,
26 I. & N. Dec. 227, 237 (B.I.A. 2014)). As the IJ correctly determined, “young
men who refuse to join gangs to commit illegal acts” is not sufficiently
1 Diego-Antonio does not challenge the agency’s denial of his claim for relief
under the Convention Against Torture. He has therefore waived this ground for
relief. See Husyev v. Mukasey, 528 F.3d 1172, 1183 (9th Cir. 2008).

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particularized because there is no evidence that it is a discrete class of persons in
Guatemalan society. Nor is such a group socially distinct, because there is no
evidence that Guatemalan society recognizes the young men in question. We have
rejected similar proposed social groups on the same bases. See Barrios v. Holder,
581 F.3d 849, 855 (9th Cir. 2009) (rejecting “young men in Guatemala who resist
gang recruitment”); Ramos-Lopez v. Holder, 563 F.3d 855, 858-62 (9th Cir. 2009)
(rejecting “young Honduran men who have been recruited by the MS-13 [gang],
but who refuse to join”).
2. Furthermore, substantial evidence supports the IJ’s determination that
Diego-Antonio did not establish a nexus between the persecution he suffered and
his proposed social group. See 8 U.S.C. § 1158(b)(1)(B)(i) (a protected ground
must “be at least one central reason” for persecuting the applicant); 8 U.S.C.
§ 1231(b)(3)(C) (a protected ground must be “a reason” for future persecution).
The IJ determined that Mara 18 gang members harmed Diego-Antonio “because
and on account of his refusal to join their gang.” Indeed, Diego-Antonio testified
that Mara 18 members harmed him “because they wanted to recruit [him].” Thus,
the IJ correctly held that he was persecuted for his resistance to joining the gang,
rather than for a protected ground. See Zetino v. Holder, 622 F.3d 1007, 1016 (9th
Cir. 2010) (holding that a noncitizen’s desire to avoid gang violence “bears no
nexus to a protected ground”).

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PETITION FOR REVIEW DENIED.

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