Unreported / Non-Citable
Background
Erick Gomez-Hernandez, a native and citizen of Guatemala, petitioned the Ninth Circuit to review an order of the Board of Immigration Appeals. The Board had dismissed his appeal from an Immigration Judge's decision denying his applications for asylum, withholding of removal, and protection under the Convention Against Torture. The panel decided the case on the briefs without oral argument after submission on October 29, 2026. It did not recount the facts because the parties already knew them, so the memorandum does not describe the underlying events or the harm he feared.
Before the agency, Gomez-Hernandez proposed eight particular social groups as the basis for his asylum and withholding claims. The agency concluded that the groups were not cognizable because they were not socially distinct. On the torture-protection claim, the agency found that he had not shown he would more likely than not be tortured with the consent or acquiescence of a public official if removed to Guatemala. The court had jurisdiction under 8 U.S.C. § 1252.
The court reviewed questions of law de novo and factual findings for substantial evidence. Whether a proposed group is cognizable is a legal conclusion reviewed de novo, while social distinction is a question of fact reviewed for substantial evidence.
The Court’s Holding
The Ninth Circuit denied the petition for review. On the social-group issue, Gomez-Hernandez argued that the agency erred in finding his eight proposed groups not socially distinct. He offered no supporting argument showing that the evidence compelled the conclusion that the groups are socially distinct within Guatemalan society. Because he did not meaningfully challenge the agency's determinations, the panel deemed the argument forfeited, citing the rule that issues raised in a brief without supporting argument are abandoned. Without a cognizable group, his asylum and withholding claims failed.
On the Convention Against Torture claim, the panel held that his references to general country conditions did not compel the conclusion that the Guatemalan government would acquiesce in his torture. His failure to establish government acquiescence foreclosed relief. The panel framed this as a failure of the record to compel a contrary result, which is the demanding substantial-evidence standard. It did not find that torture was impossible or that conditions in Guatemala are safe.
In a footnote, the court also denied the motion to stay removal. The decision resolves only this petition. The panel did not decide whether any of the eight groups would be cognizable on a developed argument.
Key Takeaways
- A petitioner who lists proposed social groups but offers no argument that the evidence compels a finding of social distinction forfeits that challenge.
- Without a cognizable particular social group, asylum and withholding claims that depend on one cannot succeed, according to the panel.
- General country-conditions evidence alone did not compel a finding that the government would acquiesce in the petitioner's torture, which defeated his Convention Against Torture claim.
- Cognizability of a group is a legal question reviewed de novo, but social distinction is a factual question reviewed for substantial evidence.
- The court denied the motion to stay removal along with the petition.
Why It Matters
This is a not-for-publication memorandum. It is not precedent except as provided by Ninth Circuit Rule 36-3, so it carries little weight beyond the parties and applies settled principles rather than announcing new law.
Practically, it shows how briefing choices can decide an immigration petition. The panel did not hold on the merits that the eight groups are legally invalid. It held that the challenge was not developed. On torture protection, it addressed only the absence of compelling evidence of government acquiescence. With the petition and stay motion both denied, the Board's order stands. Any other avenues, such as a motion to reopen, are not discussed.