Neftali Israel Merino Lozano v. MERRICK B. GARLAND, Attorney General

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NEFTALI ISRAEL MERINO LOZANO,
Petitioner,
v.
MERRICK B. GARLAND, Attorney
General,
Respondent.
No. 20-70511
Agency No. A202-007-409
MEMORANDUM*
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 7, 2022**
Pasadena, California
Before: M. SMITH, COLLINS, and LEE, Circuit Judges.
* 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).
FILED
JAN 10 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2
Neftali Israel Merino Lozano, a native and citizen of El Salvador, seeks review
of the Board of Immigration Appeals’ (“BIA”) dismissal of his appeal of an
Immigration Judge’s (“IJ”) order denying his application for asylum, withholding of
removal, and relief under the Convention Against Torture (“CAT”). This court has
jurisdiction under 8 U.S.C. § 1252 and denies the petition.
1. Substantial evidence supports the BIA’s denial of Lozano’s application
for asylum and withholding of removal because he failed to establish a nexus
between a protected ground and his past persecution or well-founded fear of future
persecution.
Lozano offered two reasons why gang members in El Salvador harmed him:
(1) his refusal to join their gang and (2) his familial relationship to his brother Oscar.
As to the gang recruitment argument, the BIA properly held that those who have
refused to join a gang do not constitute a cognizable particular social group. See
Barrios v. Holder, 581 F.3d 849, 855 (9th Cir. 2009). Lozano’s argument based on
his relationship to his brother also fails: Although family membership can serve as
a cognizable particular social group, Rios v. Lynch, 807 F.3d 1123, 1128 (9th Cir.
2015), substantial evidence does not compel the conclusion that the family
relationship is why gang members persecuted him. Lozano was beaten before Oscar
faced any threats from MS-13, suggesting that MS-13 persecuted him independently
of his relationship to Oscar.

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3
Lozano also cannot establish that he has a well-founded fear of future
persecution because of his familial relationship to Oscar. Lozano’s sister has
continued to live in El Salvador since Oscar’s death without any harm or threats
from MS-13. See Tamang v. Holder, 598 F.3d 1083, 1094 (9th Cir. 2010)
(explaining that a petitioner’s fear of future persecution is weakened when similarly
situated family members living in the home country are not harmed). And Lozano’s
failure to provide any reason why Oscar was targeted or why he would be targeted
now as a result of what happened to Oscar further weakens his claim.
2. Lozano did not challenge the BIA’s denial of his request for CAT
protection in his briefing to this court. This issue is waived on appeal and this court
will not consider it. See Alcaraz v. I.N.S., 384 F.3d 1150, 1161 (9th Cir. 2004);
Koerner v. Grigas, 328 F.3d 1039, 1048 (9th Cir. 2003).
DENIED.

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