NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

WILLIAMS CASTRO

- DONADO,

Petitioner,

v. WILLIAM P. BARR, Attorney General,

Respondent. No. 18

- 70461 Agency No. A209

- 217

- 021

MEMORANDUM *

On Petition for Review of an Order of the Board of Immigration Appeals Submitted April 2, 2020 * * Seattle, Washington Before: McKEOWN, N.R. SMITH, and NGUYEN, Circuit Judges. Williams Castro

- Donado, a citizen of Venezuela and El Salvador, petitions for r eview of the Board of Immigration Appeals’ (“BIA”) order dismissing his appeal from an I mmigration J udge’s (“IJ”) decision denying his application for asylum, withholding of removal, and protection under the Convention Against

* 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

APR 6 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

Torture (“CAT”). The parties are familiar with the facts, so we do not repeat them here. We have jurisdiction under 8 U.S.C. § 1252, and we deny the petition. Asylum is granted when an applicant has a “well

- founded fear of persecution on account of . . . membership in a particular social group.” 8 U.S.C. §§ 1101(a)(42)(A), 1158(b)(1)(A). “Gang membership” and “resist ance to gang membership” are not particular social groups for purposes of asylum. See Barrios v. Holder , 581 F.3d 849, 854 (9th Cir. 2009). The gravamen of Castro

- Donado ’s asylum claim for El Salvador stems from general gang violence. While in El Salvador, Castro

- Donado denied affiliating with gang members after he was approached , which led them to believe that he was a member of a rival gang. D espite Castro

- Donad o ’s claim that this makes him part of a distinct social group in his society that “opposes gang violence,” such a group is not cognizable because it lacks particularity and social distinction. See Ramos

Lopez v. Holder , 563 F.3d 855, 862 (9th Cir. 2009) (holding that “young Honduran men who have been recruited by gangs but refuse to join do not constitute a particular social group.”)

. Castro

- Donado has therefore failed to establish the requisite nexus to a protected social group necessary to claim asylum. See Zetino v. Holder , 622 F.3d 1007, 1016 (9th Cir. 2010) (“An alien’s desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground.”).3

W e likewise affirm the BIA’s denial of Castro

- Donado ’s application for withholding of removal. Castro

- Donado must show “a clear probability of persecution” on a statutorily protected ground. INS v. Cardoza

- Fonseca , 480 U.S. 421, 429

– 30 (1987). This is a more strin gent standard than asylum. Fisher v. INS , 79 F.3d 955, 961 (9th Cir. 1996). Because Castro

- Donado is not within a protected class under the asylum analysis , he does not qualify for withholding of removal.
Castro

- Donado’s CAT claim is merit orious only i f he can show that the government, or a government representative, instigated, condoned, or acquiesced to his torture, and “that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 1208.18 (a)(1), 8 C.F.R. § 1208.16(c)(2). Castro

- Donado cla ims CAT protection because the Salvadorian government is “powerless to control the gangs.” Th is alleged fact do es not support a finding that the government acquiesced to gang violence against Castro

- Dona do

. See Andrade

- Garcia v. Lynch , 828 F.3d 829, 836 (9th Cir. 2016) ( “ We have stated that a general ineffectiveness on the government ’ s part to investigate and prevent crime will not suffice to show acquiescence. ”)

. The IJ did not violate Castro

- Donado ’s r ight to due process by declin ing to review Castro

- Donado’s petition related to Venezuela

. “[T]o receive asylum, a person of dual nationality must demonstrate a well

- founded fear of persecution in both countries; otherwise, eligibility for asylum cannot be demonstrated because4

removal to the non

- feared country is an available option.” Sung Ki l Jang v. Lynch , 812 F.3d 1187, 1192 (9th Cir. 2015) (emphasis in original)

. Castro

- Donado is a dual citizen of El Salvador and Venezuela, and he applied for asylum to both. Because the IJ found no cognizable asylum claim for El Salvador, Castro

Donado’s asylum claim for Venezuela was rendered moot. The IJ also did not violate Castro

- Donado ’s right to due process by designat ing Venezuela as the country for prospective removal, but subsequently order ing his removal to El Salvador. Factual findings “are co nclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.” 8 U.S.C. § 1252(b)(4)(B); see also Smolniakova v. Gonzales , 422 F.3d 1037, 1044 (9th Cir. 2005). During the oral hearing, the IJ’s reference to a Venezuela design ation was prospective , or in other words, not final. After the IJ concluded the hearing, he ordered removal to El Salvador based on factual findings. Given that Castro

Donado did not elect to designate a country, and in light of the deference given to th e IJ’s determinations, there was no fundamental unfairness that deprived Castro

Donado of due process.
PETITION FOR REVIEW DENIED.