Unreported / Non-Citable
Background
Cesar Alonzo-Vasquez, a native and citizen of Guatemala, petitioned for review of the Board of Immigration Appeals' (BIA) summary dismissal of his appeal from an Immigration Judge's (IJ) denial of asylum, withholding of removal, and protection under the Convention Against Torture (CAT). Alonzo-Vasquez claimed persecution based on two proposed particular social groups: "Guatemalans who have been threatened by gang members due to their failure to cooperate with gangs" and "Guatemalans who have been threatened by gangs and who have failed to be protected by police." The IJ denied relief, and the BIA summarily affirmed the decision, including a footnote disclaiming reliance on Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), which had been vacated and overruled.
The Ninth Circuit had jurisdiction under 8 U.S.C. § 1252. The panel, consisting of Circuit Judges N.R. Smith and Johnstone and District Judge William Horsley Orrick sitting by designation, determined the case was suitable for decision without oral argument. Alonzo-Vasquez also filed a motion for a stay of removal, which the court denied.
The Court’s Holding
The court denied the petition for review on all grounds. First, the court held that any error by the BIA or IJ regarding the citation of Matter of A-B- was harmless. The IJ cited A-B-I only for propositions supported by other binding precedent, and the BIA's footnote disclaiming reliance on A-B-I, while technically violating the regulation against further explanation in a summary affirmance (8 C.F.R. § 1003.1(e)(4)(ii)), constituted harmless surplusage causing no prejudice under Kumar v. Gonzales, 439 F.3d 520 (9th Cir. 2006).
Second, the court held that substantial evidence supported the agency's determination that Alonzo-Vasquez did not establish past persecution on account of a protected ground. Neither proposed social group was cognizable: the first was impermissibly circular because it was defined exclusively by the harm suffered, per Diaz-Reynoso v. Barr, 968 F.3d 1070 (9th Cir. 2020), and the second was not recognized as a social group by Guatemalan society, per Conde Quevedo v. Barr, 947 F.3d 1238 (9th Cir. 2020). Third, because Alonzo-Vasquez failed to establish a nexus to a protected ground, his claim for a well-founded fear of future persecution also failed. Finally, substantial evidence supported the denial of CAT relief, as Alonzo-Vasquez's generalized fear of future harm and evidence of government corruption were insufficient to show a clear probability of torture with government acquiescence, per Delgado-Ortiz v. Holder, 600 F.3d 1148 (9th Cir. 2010).
Key Takeaways
- Citation of the vacated Matter of A-B- by an IJ is harmless error if the cited propositions are supported by other binding precedent.
- A BIA footnote in a summary affirmance that violates 8 C.F.R. § 1003.1(e)(4)(ii) by providing further reasoning constitutes harmless surplusage if it causes no prejudice.
- Particular social groups defined by the harm suffered (e.g., individuals threatened by gangs for non-cooperation) are impermissibly circular and not cognizable.
- A social group based on failure of police protection is not cognizable unless the record compels the conclusion that the society in question perceives such individuals as a distinct social group.
- Generalized evidence of violence, crime, or government corruption is insufficient to establish eligibility for CAT relief without particularized evidence of government acquiescence in the petitioner's torture.
Why It Matters
This memorandum disposition reinforces the Ninth Circuit's strict approach to particular social group definitions in gang-based asylum claims from Central America. It confirms that groups defined by the persecution itself are circular and invalid, and that societal recognition in the home country is a critical element of social visibility. The decision also clarifies that procedural irregularities in BIA summary affirmances, such as explanatory footnotes, are subject to harmless error review. Finally, it underscores the high bar for CAT relief, requiring particularized evidence of government acquiescence rather than generalized country conditions.