Fernando Rodriguez-Rodas v. Merick Garland
20-72542
| 9th Cir. | Dec 15, 2021Background:
- Petitioner Fernando Rodriguez-Rodas, a Salvadoran national, petitioned for review of the BIA's dismissal of his asylum, withholding of removal, and CAT claims.
- He based relief primarily on membership in the proposed particular social group (PSG) “Salvadoran material witnesses of gang crimes.”
- The Immigration Judge denied relief; the BIA affirmed, concluding the proposed PSG was not cognizable for lack of particularity and social distinction, and found no nexus to a protected ground.
- The BIA also denied CAT relief, finding insufficient evidence that any future torture would occur with government consent or acquiescence, citing El Salvador’s anti‑gang efforts and a witness protection program.
- The Ninth Circuit reviewed factual findings for substantial evidence and legal conclusions de novo and denied the petition for review.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Cognizability of PSG "Salvadoran material witnesses of gang crimes" | The group is a distinct, protected social group warranting asylum | The group is amorphous and lacks particularity and social distinction | PSG not cognizable: lacks sufficient particularity and social distinction |
| Withholding of removal (nexus to protected ground) | Harm from gangs as a material witness establishes entitlement to withholding | No cognizable protected ground; therefore no required nexus | Denied: petitioner failed to show nexus because PSG not cognizable |
| CAT protection (torture with state acquiescence) | More likely than not to be tortured by gangs on return | Insufficient evidence that torture would occur with consent/acquiescence of officials; state has anti‑gang measures and witness program | Denied: substantial evidence supports conclusion no state acquiescence to torture |
Key Cases Cited
- Nasrallah v. Barr, 140 S. Ct. 1683 (2020) (standard that agency factual findings reviewed for substantial evidence)
- Bringas-Rodriguez v. Sessions, 850 F.3d 1051 (2017) (de novo review of legal conclusions)
- Reyes v. Lynch, 842 F.3d 1125 (2016) (elements for particular social group: immutability, particularity, social distinction)
- Nguyen v. Barr, 983 F.3d 1099 (2020) (rejecting overbroad/amorphous proposed group)
- Henriquez-Rivas v. Holder, 707 F.3d 1081 (2013) (example of a verifiable, delimited social group)
- Diaz-Torres v. Barr, 963 F.3d 976 (2020) (social‑distinction and unique vulnerability standards)
- Najmabadi v. Holder, 597 F.3d 983 (2010) (agency need not mention every piece of evidence to have considered the record)
- Barajas-Romero v. Lynch, 846 F.3d 351 (2017) (withholding of removal requires protected ground to be a reason for persecution)
- Xochihua-Jaimes v. Barr, 962 F.3d 1175 (2020) (standard for CAT: torture more likely than not with state acquiescence)
- Baghdasaryan v. Holder, 592 F.3d 1018 (2010) (nexus requirement for asylum and withholding)