FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALFREDO MACEDO TEMPLOS,

Petitioner,

v.

ROBERT M. WILKINSON, Acting 

Attorney General,

Respondent.

No. 15-73122

Agency No.

A089-244-826

OPINION

On Petition for Review of an Order of the

Board of Immigration Appeals

Argued and Submitted October 19, 2020

Honolulu, Hawaii

Filed February 9, 2021

Before: J. Clifford Wallace, Carlos T. Bea, and

Mark J. Bennett, Circuit Judges.

Opinion by Judge Wallace;

Concurrence by Judge Bea
2 MACEDO TEMPLOS V. WILKINSON

SUMMARY*

Immigration

Denying in part and granting in part Alfredo Macedo 

Templos’s petition for review of the Board of Immigration 

Appeals’ denial of withholding of removal and protection 

under the Convention Against Torture, and remanding, the 

panel held that the Board correctly concluded that Macedo’s 

social group comprised of “Mexican wealthy business 

owners” was not cognizable for purposes of withholding 

relief, but that the Board erred in concluding that Macedo 

failed to establish government involvement in, or 

acquiescence to, his alleged torture for purposes of CAT 

relief. 

The panel held that the Board correctly concluded that 

Macedo’s proposed social group of “Mexican wealthy 

business owners” was not cognizable because it lacked 

social distinction, particularity, or an immutable 

characteristic. First, the panel explained that Macedo’s 

proposed group was not socially distinct, because the record 

lacked evidence that Mexican society perceives wealthy 

business owners as a distinct group, and the United States 

Department of State’s Country Report states that kidnapping 

for ransom occurs at “all socioeconomic levels.” Second, 

the panel explained that the proposed group lacks 

particularity because it could include large swaths of people 

and various cross-sections of a community. Finally, the 

panel explained that being a wealthy business owner is not 

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
MACEDO TEMPLOS V. WILKINSON 3

an immutable characteristic because it is not fundamental to 

an individual’s identity.

The panel held that even if Macedo’s proposed group 

were cognizable, he would still not be entitled to withholding 

relief, because substantial evidence supported the IJ’s 

decision that Macedo did not establish a nexus between the 

feared harm and his alleged membership in the proposed 

group. 

Addressing Macedo’s CAT claim, the panel held that the 

Board erred in concluding that Macedo had not proven he 

had been “subjected to any harm by Mexican officials.” 

Macedo argued that he established the Mexican 

government’s acquiescence to his torture because he had 

reasons to believe he was targeted by Mexican judicial 

police, an official discouraged him from filing a report, and 

he filed police reports and no action was taken. The panel 

noted that the Board’s decision preceded and therefore did 

not consider this court’s opinion in Barajas-Romero v. 

Lynch, 846 F.3d 351 (9th Cir. 2017) (holding that the 

question of whether the public officials who perpetrated 

torture against the petitioner were acting in their official 

capacity is irrelevant, and that the implementing regulations 

do not establish a “rogue official” exception to CAT relief). 

The panel concluded that even if the judicial officers who 

attacked Macedo were not in uniform and did not act in their 

official capacity, Macedo sufficiently demonstrated that he 

was the victim of an official perpetration of violence. The 

panel remanded for the Board to consider whether Macedo’s 

past harm by judicial officers qualified as torture, and 

whether Macedo otherwise established that it was more 

likely than not he would be tortured if returned.
4 MACEDO TEMPLOS V. WILKINSON

Concurring, Judge Bea agreed that “wealthy business 

owner” does not meet the particularity or social distinction 

elements required to merit classification as a cognizable 

particular social group, but would refrain from holding that 

it cannot be an immutable characteristic. Judge Bea wrote 

separately to make clear that the majority’s holding 

otherwise must be considered erroneous dicta.

COUNSEL

Kevin Block (argued), Wailuku, Hawaii, for Petitioner.

Tim Ramnitz (argued), Attorney; Russell J.E. Verby, Senior 

Litigation Counsel; Office of Immigration Litigation, Civil 

Division, United States Department of Justice, Washington, 

D.C.; for Respondent.

OPINION

WALLACE, Circuit Judge:

Alfredo Macedo Templos petitions from the Board of 

Immigration Appeals (Board) and challenges the denial of 

his application for withholding of removal and relief 

pursuant to the Convention Against Torture (CAT).

Macedo is a native citizen of Mexico. He states he fled 

Mexico after he and his family were targeted by criminals 

due to his successful clothing business. The Immigration 

Judge (IJ) concluded that, although Macedo was credible, he 

was not eligible for withholding of removal or CAT relief. 

The IJ held that Macedo’s proposed particular social group 

was not cognizable, and there was no nexus between the 
MACEDO TEMPLOS V. WILKINSON 5

alleged harm and his membership in the proposed group. 

The IJ also concluded that Macedo was not eligible for CAT 

relief because he failed to establish the Mexican 

government’s involvement in, or acquiescence to, his 

torture. The Board affirmed and provided additional 

analysis for why it believed the IJ’s determination was not 

clear error. Macedo petitions for review of the denial of his 

application for withholding of removal and CAT status.

We have jurisdiction pursuant to 8 U.S.C. § 1252. We 

review both the IJ’s and the Board’s (collectively, the 

Agency) decisions when they each conduct a review of the 

evidence and the law. See Ali v. Holder, 637 F.3d 1025, 

1028 (9th Cir. 2011). We review the IJ’s factual findings for 

substantial evidence. Arteaga v. Mukasey, 511 F.3d 940, 

944 (9th Cir. 2007). We review questions of law, such as 

whether a proposed particular social group is cognizable for 

purposes of withholding of removal, de novo. Perdomo v. 

Holder, 611 F.3d 662, 665 (9th Cir. 2010). We deny the 

petition for review in part and grant and remand in part.

I.

Macedo was a small business owner in Mexico City, and 

he achieved some success. His business produced custommade shirts and clothing, and it employed approximately 

20 workers. However, he was extorted in 2000 by a group 

of unidentified individuals because of this success; they 

demanded monthly safety fees. Macedo refused and 

relocated his business to his home to avoid reprisals. He did 

not file a report with the police after an official warned him 

that the criminals could retaliate if they learned of the report. 

His home was subsequently targeted in 2003 with a driveby-shooting, and he discovered a note that he believed linked 

the extortion attempt with the shooting. Macedo then closed 

the production side of his business and transitioned to selling 
6 MACEDO TEMPLOS V. WILKINSON

only his remaining stock of clothes. Yet he and his family 

continued to be targeted with other crimes.

While selling his clothes in 2005, Macedo asserts that his 

vehicle was pulled over and he was beaten by two 

individuals he believes were judicial police officers. 

Macedo testified that one of them told him the attack was 

because Macedo did not pay, although the individual did not 

elaborate further. Macedo, therefore, assumed the attack 

was related to the original extortion because he never 

changed his car and the judicial police officers likely 

identified him through it. He did not file a report because he 

believed the government and the criminals “were the same 

thing,” and he would be punished for reporting the incident 

to the police. Macedo does not have proof that the people 

who targeted him were connected with the Mexican 

government, but he believes they had to be connected.

He first entered the United States in 2006 with a sixmonth permit. He returned to Mexico after five months but 

was shortly thereafter assaulted, and his car was stolen. 

Macedo reported the attack and theft for insurance purposes, 

and he decided to return to the United States. Macedo was 

admitted to the United States for a second time on January 

12, 2007, as a non-immigrant B2 visitor with authorization 

to remain in the country until July 11, 2007. Macedo 

overstayed his visa without the Department of Homeland 

Security’s approval.

In 2009, kidnappers abducted his youngest daughter in 

Mexico for ransom. Her kidnappers demanded two million 

pesos but agreed to one million pesos. During her ordeal, 

the kidnappers beat and raped her. The kidnappers did not 

explain why they had targeted the Macedo family, but the 

kidnappers warned the family not to report the crime because 

the kidnappers had police connections. The Macedo family 
MACEDO TEMPLOS V. WILKINSON 7

ignored the warning and filed a report. In the end, Macedo 

reported some of these crimes to the local authorities, but he 

chose not to file reports on other crimes.

In 2013, the Department of Homeland Security initiated 

removal proceedings pursuant to its authority under the 

Immigration and Naturalization Act. Macedo admitted the 

factual allegations and conceded removability, but he 

requested the opportunity to present an application for 

withholding of removal and CAT relief. At his hearing in 

front of the IJ, Macedo presented testimony about how he 

was targeted due to his successful business. His sister and 

youngest daughter testified about the crimes against the 

family, as well as why Macedo had to leave Mexico and 

could not return. Macedo testified that he believed these 

crimes were connected and had to stem from his refusal to 

comply with the original extortion demand, and he feared for 

his life because he believed his government would not 

protect him.

The IJ confirmed that Macedo was not eligible for 

asylum because he failed to file the required petition within 

a year of his arrival in the United States and did not establish 

any of the exceptions to the one-year filing requirement. The 

IJ found Macedo and his family credible. Nonetheless, the 

IJ held that Macedo had not established past persecution nor 

a clear probability of future persecution so that his life would 

be threatened by returning to Mexico. The IJ also 

determined that Macedo’s proposed group of “wealthy 

business owners” was not cognizable.

The IJ held that there was no nexus between the crimes 

against Macedo and his family and his membership in the 

proposed group; Macedo simply assumed the attacks against 

him were related to the original extortion. The IJ concluded 

that Macedo had not established acquiescence by Mexican 
8 MACEDO TEMPLOS V. WILKINSON

officials or their involvement in his treatment. The IJ denied 

Macedo’s applications for withholding of removal and CAT 

relief.

Macedo appealed to the Board. The Board affirmed the 

denials and held that Macedo had failed to establish a 

cognizable particular social group, as well as a nexus 

between the feared harm and a protected ground. The Board 

further held that “[b]eing a business owner is not an 

immutable characteristic.” It determined that Macedo’s 

victimization was the product of crime rather than 

persecution. The Board concluded that Macedo did not have 

a valid claim for CAT relief because he failed to establish 

government acquiescence to, or involvement in, his alleged 

torture.

Macedo argues two issues in his petition for review. The 

first is whether the Board erred in affirming that his proposed 

particular social group of Mexican wealthy business owners 

who do not comply with extortion attempts is not a 

cognizable group and there was no nexus between the harm 

and the proposed group. The second is whether the Board 

erred in affirming that Macedo was ineligible for CAT relief 

because he did not establish government involvement in, or 

acquiescence to, his alleged torture.

II.

The Board’s rejection of Macedo’s proposed particular 

social group as not cognizable was correct, as was its holding 

that Macedo failed to establish a clear nexus between the 

harm suffered and his alleged membership in the proposed 

group. Macedo makes three arguments, although we address 

only two. Macedo’s third argument is that the IJ erred by 

not making a case-by-case determination of whether he 

made a valid claim. This argument ignores the record, as 
MACEDO TEMPLOS V. WILKINSON 9

both the IJ and the Board conducted an individualized 

analysis of his petition. Therefore, we do not address this 

argument further.

Macedo’s first argument is that his membership in his 

proposed group does not have to be the only central reason 

for his persecution, so that he should not be precluded from 

relief even if the primary motivation of his attackers was 

crime rather than persecution. His second argument is that 

his former occupation as a business owner corresponds with 

the characteristics of a particular social group because it was 

an immutable voluntary association. However, the cases 

Macedo relies on are easily distinguishable, and we reject his 

argument that being a wealthy business owner is an 

immutable characteristic.

To qualify for withholding of removal, Macedo must 

demonstrate that his life would be threatened if he were 

removed to Mexico because of one of five enumerated 

grounds, including membership in a particular social group. 

8 U.S.C. § 1231(b)(3)(A); see also Reyes v. Lynch, 842 F.3d 

1125, 1132 n.3 (9th Cir. 2016) (establishing the existence of 

a cognizable particular social group is a separate requirement 

from establishing membership in the group). Membership 

in the group must be “a reason” for Macedo’s feared 

mistreatment. 8 U.S.C. § 1231(b)(3)(C); see also BarajasRomero v. Lynch, 846 F.3d 351, 360 (9th Cir. 2017) (holding 

that the “a reason” standard in section 1231(b)(3)(C) is a less 

demanding standard than the asylum statute’s “one central 

reason” standard in section 1158(b)(1)(B)(i)).

We have held that the phrase “particular social group” is 

ambiguous, thus the Agency’s interpretation of that term is 

entitled to Chevron deference so long as it is reasonable. 

Henriquez-Rivas v. Holder, 707 F.3d 1081, 1083, 1087 (9th 

Cir. 2013) (holding Board’s construction must be accepted 
10 MACEDO TEMPLOS V. WILKINSON

if reasonable, even if not the best interpretation). An 

interpretation fails this step if it is “arbitrary or capricious in 

substance.” Judulang v. Holder, 565 U.S. 42, 52 n.7 (2011)

(citation and quotation marks omitted). Two companion 

Board decisions clarified the elements underlying the 

Agency’s particular social group analysis: Matter of M-E-VG-, 26 I. & N. Dec. 227 (BIA 2014) and Matter of W-G-R-, 

26 I. & N. Dec. 208 (BIA 2014). In Matter of M-E-V-G-, the 

Board held that the applicant must establish that the group 

they claim membership in must be: “(1) composed of 

members who share a common immutable characteristic, 

(2) defined with particularity, and (3) socially distinct within 

the society in question.” 26 I. & N. Dec. at 237.

In Matter of W-G-R-, the Board further defined each 

factor. 26 I & N Dec. at 212–18. The common immutable 

characteristic has been defined as one “that the members of 

the group either cannot change, or should not be required to 

change[,] because it is fundamental to their individual 

identities or consciences.” Id. at 212 (citation omitted). The 

particularity element requires characteristics that “provide a 

clear benchmark for determining who falls within the 

group,” such that the relevant society has a commonly 

accepted definition of the group. Id. at 214. “The group 

must also be discrete and have definable boundaries—it 

must not be amorphous, overbroad, diffuse, or subjective.” 

Id. Social distinction requires evidence that “society in 

general perceives, considers, or recognizes persons sharing 

the characteristic to be a group.” Id. at 217; see also

Cordoba v. Barr, 962 F.3d 479, 482–83 (9th Cir. 2020) 

(observing that the persecutor’s perspective “may be 

relevant” to the extent “it can be indicative of whether 

society views the group as distinct,” but “the persecutors’ 

perception is not itself enough to make a group socially 
MACEDO TEMPLOS V. WILKINSON 11

distinct, and persecutory conduct alone cannot define the 

group”) (citation omitted).

Substantial evidence supports the holding that Macedo 

failed to establish a particular social group. First, the 

Agency was correct that Macedo’s proposed group was not 

socially distinct. The record does not include evidence that 

Mexican society perceives wealthy business owners as a 

distinct group, and the 2013 United States Department of 

State’s Country Report on Mexico states that kidnapping for 

ransom occurs at “all socioeconomic levels.” Second, the 

proposed group lacks particularity because it could include 

large swaths of people and various cross-sections of a 

community. See, e.g., Mendoza-Alvarez v. Holder, 714 F.3d 

1161, 1164 (9th Cir. 2013) (holding that groups that “include 

large numbers of people with different conditions and in 

different circumstances” and “sweep up a large and disparate 

population” lack particularity). Finally, being a wealthy 

business owner is not an immutable characteristic because it 

is not fundamental to an individual’s identity. See, e.g., 

Sicaju-Diaz v. Holder, 663 F.3d 1, 3–4 (1st Cir. 2011); 

Tapiero de Orejuela v. Gonzalez, 423 F.3d 666, 672–73 (7th 

Cir. 2005) (holding that wealthy educated landowning cattle

farmers in Colombia who were targeted by FARC because 

of their social position were a particular social group but 

clarifying that the group was “not merely defined by wealth, 

a characteristic that standing alone” has been rejected by the 

Agency).

Even if Macedo’s proposed group were cognizable, he 

would still not be entitled to relief. Substantial evidence 

supports the IJ’s decision that Macedo did not establish a 

nexus between the feared harm and his alleged membership 

in the proposed group. Macedo did not present evidence that 

the crimes were committed by the same criminals driven by 
12 MACEDO TEMPLOS V. WILKINSON

the same motive, beyond his opinion that his victimization 

stemmed from his refusal to pay his original extortioners. 

See Zetino v. Holder, 622 F.3d 1007, 1016 (9th Cir. 2010) 

(holding that an applicant’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”). The evidence proves that criminals in Mexico will 

target anyone they believe can pay, regardless of their 

victim’s background or reason for their wealth. Macedo’s 

youngest daughter never learned why she was kidnapped and 

raped or later held at gunpoint during a mugging. Even the 

verbal and written threats against Macedo were ambiguous.

We affirm the Agency’s denial of Macedo’s application 

for withholding of removal.

III.

The Board’s rejection of Macedo’s CAT request is more 

complicated. Macedo argues that he established the 

Mexican government’s acquiescence to his torture because 

he filed police reports and no action was taken, he believes 

he was targeted by Mexican judicial police, and an official 

discouraged him from filing a report. Without reaching the 

other alleged evidence of acquiescence, we hold that the 

Board did not properly consider Macedo’s testimony 

regarding the attack by the Mexican judicial officers based 

on our subsequent decision in Barajas-Romero. We, 

therefore, grant Macedo’s petition on this limited question 

for his CAT application.

To receive CAT relief, Macedo must show that he would 

“more likely than not” be tortured if removed. 8 C.F.R. 

§§ 208.16(c)(2), 208.17(a). Torture is an extreme form of 

“cruel and inhuman treatment that either (1) is not lawfully 

sanctioned by that country or (2) is lawfully sanctioned by 
MACEDO TEMPLOS V. WILKINSON 13

that country[] but defeats the object and purpose of the 

convention.” Nuru v. Gonzales, 404 F.3d 1207, 1221 (9th 

Cir. 2005) (citation omitted) (emphasis in original). Macedo 

must prove “a chance greater than fifty percent that he will

be tortured” if removed to Mexico. Hamoui v. Ashcroft, 

389 F.3d 821, 827 (9th Cir. 2004). Macedo must also prove 

that he would experience torture “inflicted by or at the 

instigation of or with the consent or acquiescence of a 

[Mexican] public official or other person acting in an official 

capacity.” Cole v. Holder, 659 F.3d 762, 771 (9th Cir. 

2011), quoting 8 C.F.R. § 208.18(a)(1); Zheng v. Ashcroft, 

332 F.3d 1186, 1188 (9th Cir. 2003). We must consider 

“[a]ll evidence relevant to the probability of future torture 

. . . including past torture and country conditions.” BarajasRomero, 846 F.3d at 361, citing 8 C.F.R. § 208.16.

Macedo did not discuss the impact of Barajas-Romero

in his petition, and, understandably, neither did the IJ or the 

Board in their decisions, which predated Barajas-Romero. 

However, the decision is relevant to the Agency’s CAT 

analysis. In Barajas-Romero, we held that the question of 

whether the public officials who perpetrated torture against 

the petitioner were acting in their official capacity is 

irrelevant. Id. at 362–63. We reasoned that the 

implementing regulations do not establish a “rogue official” 

exception to CAT relief. Thus, the four attackers at issue in 

Barajas-Romero may have been public officials even though 

other Mexican “state or federal authorities might not 

similarly acquiesce.” Id. at 362. We also held that the 

regulation does not require that the public official be 

carrying out his official duties, so long as he is the 

perpetrator or knowingly acquiesces to the torture. Id. We 

concluded in Barajas-Romero that the record supported the 

inference that the four local policemen were public officials 

who themselves inflicted the torture, so that the petitioner 
14 MACEDO TEMPLOS V. WILKINSON

was entitled to Board reconsideration of his CAT claim. Id.

at 364–65. There was no such consideration by the Board or 

the IJ in this case.

As in Barajas-Romero, the record supports the inference 

that the judicial officers “were public officials.” Id. at 363. 

The IJ found, and the Board does not dispute, that Macedo’s 

testimony was credible. Macedo testified that he was robbed 

and assaulted by individuals he believed to be “judicial 

police” because they “had an official vehicle from the 

judicial police.” With that, we conclude that the Board erred 

in finding that Macedo had not proven he had been 

“subjected to any harm by Mexican officials.”1 Even if the 

judicial officers were not in uniform and did not act in their 

official capacity, Macedo has sufficiently demonstrated that 

he was the victim of an official perpetration of violence.

Consequently, there are two remaining issues to be 

considered by the Board on remand. The IJ considered 

Macedo’s past harm but did not specifically hold whether it 

qualified as torture, nor did the Agency consider whether 

Macedo had otherwise established that it was more likely 

than not he would be tortured if returned to Mexico. We, 

therefore, grant Macedo’s petition for review of his 

application for CAT relief and remand the issue to the Board.

1 The Board also held that “the record does not indicate that Mexican 

authorities have any specific interest in harming” Macedo. While that 

may be true, such a finding is irrelevant to Macedo’s eligibility for CAT 

relief. We reiterate that the government need only consent or acquiesce 

to a petitioner’s harm for the petitioner to be eligible for CAT relief—

not specifically intend it. See Cole, 659 F.3d at 771, quoting 8 C.F.R. 

§ 208.18(a)(1).
MACEDO TEMPLOS V. WILKINSON 15

IV.

Thus, we affirm the Agency’s denial of Macedo’s 

application for withholding of removal, but we grant his 

petition for additional review of his application for CAT 

relief. We remand with instructions for the Board to 

consider whether the attack by the judicial police officers

qualifies as torture and whether Macedo has established that 

it was more likely than not he would be tortured if returned 

to Mexico.

DENIED in part and GRANTED and REMANDED 

in part.

BEA, Circuit Judge, concurring:

While I agree “wealthy business owner” does not meet 

the particularity or social distinction elements required to 

merit classification as a cognizable particular social group 

(“PSG”), I would refrain from holding that it cannot be an 

immutable characteristic. For successful entrepreneurs, 

their business is their life, and in America we revere 

economic autonomy and entrepreneurship as central to the 

inalienable right to pursue one’s own happiness. I write 

separately to make clear that the majority’s holding 

otherwise must be considered erroneous dicta.

We have deferred to the BIA’s definition of immutability 

as “something that either cannot be changed or that the group 

members should not be required to change in order to avoid 

persecution.” Pirir-Boc v. Holder, 750 F.3d 1077, 1081 n.3 

(9th Cir. 2014) (emphasis added). It is a characteristic “so 

fundamental to one’s identity that a person should not be 

required to abandon it.” Id. at 1081–82 (quoting Henriquez-
16 MACEDO TEMPLOS V. WILKINSON

Rivas v. Holder, 707 F.3d 1081, 1084 (9th Cir. 2013)). 

Under that rubric, we have held as immutable such 

characteristics as homosexuality, Hernandez-Montiel v. 

I.N.S., 225 F.3d 1084, 1093 (9th Cir. 2000), overruled on 

other grounds by Thomas v. Gonzales, 409 F.3d 1177 (9th 

Cir. 2005) (en banc); and membership in one’s family, Rios 

v. Lynch, 807 F.3d 1123, 1128 (9th Cir. 2015).

Macedo Templos’s proposed PSG describes the 

characteristic of being successful entrepreneurs in a freemarket economy and polity. It describes the pinnacle of selfdetermination, an ethos, an inextinguishable yearning to 

create, innovate, and succeed for the betterment of self, 

family, and society. See Amir N. Licht, The Entrepreneurial 

Spirit and What the Law Can Do About It, 28 Comp. Lab. L. 

& Pol’y J. 817 (2007) (describing the scholarship examining 

the entrepreneurial spirit in the individual and reflecting on 

its dependency upon a supportive society, culture, and legal 

framework). It is a characteristic which a person should not 

be required to abandon. We would be corrupting long-held 

American principles if we were to require applicants to 

forsake ownership of their successful business or ignore 

persecution of those who refuse to give up on thriving 

economically through entrepreneurship in their home 

country. See, e.g., Alexis de Tocqueville, 2 Democracy in 

America 724 (Henry Reeve trans., D. Appleton 1899) (1835) 

(“Boldness of enterprise is the foremost cause of 

[America’s] rapid progress, its strength, and its greatness.”); 

15 U.S.C. § 631 (“The essence of the American economic 

system of private enterprise is free competition. . . . The 

preservation and expansion of such competition is basic not 

only to the economic well-being but to the security of this 

Nation.”). It would be a renunciation of the American 

Dream.
MACEDO TEMPLOS V. WILKINSON 17

The majority does not cite to any Ninth Circuit precedent 

to the contrary. Nor is this position at odds with BIA’s 

holding in Matter of Acosta, 19 I. & N. Dec. 211, 234 (BIA 

1985), to which we have favorably cited. See HenriquezRivas v. Holder, 707 F.3d 1081, 1084 (9th Cir. 2013). In 

Matter of Acosta, the BIA held that the characteristic of 

being a taxi driver is not “immutable because the members 

of the group could avoid the threats of the guerrillas . . . by 

changing jobs.” 19 I. & N. Dec. at 23. BIA explained: “It 

may be unfortunate that the respondent either would have 

had to change his means of earning a living or cooperate with 

the guerrillas in order to avoid their threats. However, the 

internationally accepted concept of a refugee simply does 

not guarantee an individual a right to work in the job of his 

choice.” This holding stands only for the proposition that a 

person’s choice of profession is not immutable. We have 

never said that the desire to work in any profession is

mutable, or more to the point, that ownership of a business 

cannot be an immutable characteristic. And I would not do 

so here.

I agree that this Petitioner failed to show “wealthy 

business owner” is a cognizable PSG on the basis of the 

particularity and social distinction prongs. What Macedo 

Templos has gained in describing generally an immutable 

characteristic, he has lost in delineating a particular and 

socially distinct group. These comparatively 

straightforward findings make the majority’s holding as to 

immutability unnecessary as well as misguided. I would 

rather the majority follow our previous examples in avoiding 

making unnecessary, categorical declarations as to whether 

a characteristic is immutable when the petitioner’s clear 

failure to establish particularity and social distinction makes 

doing so unnecessary. See Cordoba v. Barr, 962 F.3d 479, 

483 (9th Cir. 2020) (holding “Columbian wealthy 
18 MACEDO TEMPLOS V. WILKINSON

landowners” lacked social distinction but refraining from 

holding the proposed characteristic was not immutable); 

Mevlyudov v. Barr, 821 F. App’x 737, 739 (9th Cir. 2020) 

(unpublished) (holding “Ukrainian car salesmen” lacks 

particularity and social distinction but refraining from 

holding the proposed characteristic was not immutable); 

Palacios-Palacios v. Barr, 814 F. App’x 227, 229 (9th Cir. 

2020) (unpublished) (holding “Salvadoran women who are 

single mothers with children, who own a small business in 

rural El Salvador, and whose partners are residing in the 

United States” lacks social distinction but refraining from 

holding the proposed characteristic was not immutable).

I would not establish precedent that would prevent other 

PSGs from obtaining asylum or withholding of removal 

status—ones that do meet those requirements of particularity 

and social distinction—on the basis that a desire for selfdetermination and successful entrepreneurship is something 

that a person should be required to forsake.