Herberth Ayala v. Eric H. Holder Jr.

Filing

FILED PER CURIAM OPINION (RAYMOND C. FISHER, RICHARD C. TALLMAN and ARTHUR J. TARNOW) DENIED. FILED AND ENTERED JUDGMENT. [7757421]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT



HERBERTH NOEL AYALA,
Petitioner,
ERIC H. HOLDER
General,

v.
JR., Attorney
Respondent.




No. 08-71868
Agency No.
A073-967-361
OPINION

On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 15, 2011*
San Francisco, California
Filed May 19, 2011
Before: Raymond C. Fisher** and Richard C. Tallman,
Circuit Judges, and Arthur J. Tarnow, District Judge.***
Per Curiam Opinion

*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
**Judge Raymond C. Fisher was drawn to replace Judge David R.
Thompson, now deceased. Judge Fisher has read the briefs and reviewed
the record.
***The Honorable Arthur J. Tarnow, Senior United States District
Judge for the Eastern District of Michigan, sitting by designation.

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COUNSEL
Frank P. Sprouls, Law Office of Ricci and Sprouls, San Francisco, California, for the petitioner-appellant.
Gregory G. Katsas, Assistant Attorney General, Civil Division, Linda S. Wernery, Assistant Director, Susan Bennett
Green and Edward Earl Wiggers, Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C., for the
respondent-appellee.

OPINION
PER CURIAM:
Herberth Noel Ayala, a native and citizen of El Salvador,
petitions for review of a decision of the Board of Immigration
Appeals (BIA) affirming an Immigration Judge’s denial of his
applications for asylum, withholding of removal and protection under the Convention Against Torture. He alleges that,
during his past service as a military officer, he investigated
drug crimes, and that after he was discharged he was attacked
and threatened by drug dealers he had personally arrested. We
have jurisdiction under 8 U.S.C. § 1252, and we deny the
petition for review.
We review de novo questions of law, including whether a
group constitutes a “particular social group” under the Immi-

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gration and Nationality Act (INA). See Perdomo v. Holder,
611 F.3d 662, 665 (9th Cir. 2010). We examine the BIA’s
factual findings, including whether a petitioner was persecuted on account of his membership in a “particular social
group,” under the substantial evidence standard. See INS v.
Elias-Zacarias, 502 U.S. 478, 481 (1992); Santos-Lemus v.
Mukasey, 542 F.3d 738, 742-43 (9th Cir. 2008).
[1] To establish eligibility for asylum, an applicant must
demonstrate that “race, religion, nationality, membership in a
particular social group, or political opinion was or will be at
least one central reason for persecuting the applicant.” 8
U.S.C. § 1158(b)(1)(B)(i). In this case, Ayala claims past persecution and a fear of future persecution on account of his
membership in a particular social group of former military
officers who suffer reprisals based on their prior prosecution
of wrongdoers.
[2] Because Ayala was a former officer when the relevant
incidents took place, he is not precluded from establishing a
cognizable social group under the INA. Although in ArriagaBarrientos v. INS, 937 F.2d 411, 414 (9th Cir. 1991), we held
“that the military is not a social group qualifying its servicemen or former servicemen for asylum eligibility,” we later
recognized that former officers may be members of a cognizable social group. See Cruz-Navarro v. INS, 232 F.3d 1024,
1029 (9th Cir. 2000) (“Persons who are persecuted because of
their status as a former police or military officer, for example,
may constitute a cognizable social group under the INA.”);
Velarde v. INS, 140 F.3d 1305, 1311 (9th Cir. 1998)
(“Velarde’s status [as a former bodyguard to the Presidential
family] ‘is in fact an immutable characteristic’ which can provide the basis for finding ‘persecution on account of political
opinion or membership in a social group.’ ” (quoting Matter
of Fuentes, 19 I. & N. Dec. 658, 662 (B.I.A. 1988)), superseded by statute on other grounds as stated in Falcon Carriche v. Ashcroft, 350 F.3d 845, 854 n.9 (9th Cir. 2003);
Chanco v. INS, 82 F.3d 298, 303 (9th Cir. 1996) (“Chanco is

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correct that reprisals against former military officers can provide a basis for granting asylum.”).
Moreover, the BIA has concluded, in Matter of C-A-, 23 I.
& N. Dec. 951 (B.I.A. 2006), that a particular social group of
former officers is conceivable. According to C-A-, “[w]ere a
situation to develop in which former police officers were targeted for persecution because of the fact of having served as
police officers, a former police officer could conceivably
demonstrate persecution based upon membership in a particular social group of former police officers.” Id. at 958-59. We
defer to the BIA’s interpretation of “particular social group”
and adopt C-A-’s analysis. See Nat’l Cable & Telecomms.
Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982-83
(2005).
[3] Nonetheless, although Ayala is not precluded from
demonstrating membership in a particular social group, he is
still not entitled to relief. Even assuming Ayala’s proposed
social group is both “socially visible” and “particular,” Ayala
must establish that any persecution was or will be on account
of his membership in such group. See Santos-Lemus, 542 F.3d
at 743-44. “[I]t is not enough to simply identify the common
characteristics of a statistical grouping of a portion of the population at risk. Rather, . . . there must be a showing that the
claimed persecution is on account of the group’s identifying
characteristics.” Matter of E-A-G-, 24 I. & N. Dec. 591, 595
(B.I.A. 2008) (internal citations and quotation marks omitted).
[4] Substantial evidence supports the BIA’s determination
that Ayala failed to make this showing. Rather than demonstrating that Ayala was persecuted on account of his membership in a particular social group, the evidence demonstrates
that Ayala was only shot at and threatened because, while an
officer, he had arrested a particular drug dealer. Though disturbing, this type of persecution is not cognizable under the
INA. See C-A-, 23 I. & N. Dec. at 958-59 (“[I]f a former
police officer [is] singled out for reprisal, not because of his

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status as a former police officer, but because of his role in disrupting particular criminal activity, he [is] not . . . considered,
without more, to have been targeted as a member of a particular social group.”); see also Cruz-Navarro, 232 F.3d at 1030.
[5] Because Ayala has failed to establish eligibility for asylum, he necessarily fails to establish eligibility for withholding of removal. See Cruz-Navarro, 232 F.3d at 1031. Finally,
because there is no indication that Ayala will be tortured upon
return to El Salvador, or that any mistreatment he might suffer
upon return will be inflicted with the consent or acquiescence
of Salvadoran public officials, he is not entitled to protection
under the Convention Against Torture. See Arteaga v.
Mukasey, 511 F.3d 940, 948 (9th Cir. 2007).
PETITION FOR REVIEW DENIED.