NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

EVER EDUARDO SANDOVAL 

SANDOVAL,

Petitioner,

v.

MERRICK B. GARLAND, Attorney 

General,

Respondent.

No. 23-2001

Agency No.

A206-634-993

MEMORANDUM*

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted June 10, 2024**

Before: OWENS, LEE, and DESAI, Circuit Judges.

Ever Eduardo Sandoval Sandoval (“Sandoval”), a native and citizen of El 

Salvador, petitions for review of the Board of Immigration Appeals’ (“BIA”) 

decision affirming the Immigration Judge’s (“IJ”) decision denying his 

applications for asylum, withholding of removal, and protection under the 

* 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

JUN 21 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 23-2001

Convention Against Torture (“CAT”). As the parties are familiar with the facts, 

we do not recount them here. We deny the petition. 

We have jurisdiction under 8 U.S.C. § 1252(a)(1). “Where the BIA 

conducts its own review of the evidence and law, . . . our review is limited to the 

BIA’s decision, except to the extent the IJ’s opinion is expressly adopted.” Guerra 

v. Barr, 974 F.3d 909, 911 (9th Cir. 2020) (citation omitted). We review due 

process claims de novo. Cinapian v. Holder, 567 F.3d 1067, 1073 (9th Cir. 2009). 

“We review the denial of asylum, withholding of removal and CAT claims for 

substantial evidence.” Duran-Rodriguez v. Barr, 918 F.3d 1025, 1028 (9th Cir. 

2019). “[W]e must uphold the agency determination unless the evidence compels 

a contrary conclusion.” Id. 

1. Under 8 C.F.R. § 1240.1(b), if an IJ must withdraw from a hearing, the 

new IJ “assigned to complete the case” is required to “state for the record” that he

had familiarized himself with the case. Sandoval contends that because the IJ did 

not do so in his hearing, he was denied due process. However, “[t]o prevail on a 

due process challenge to deportation proceedings, [Sandoval] must show error and 

substantial prejudice,” and he shows neither. Lata v. I.N.S., 204 F.3d 1241, 1246 

(9th Cir. 2000). As the BIA stated, the IJ that presided over Sandoval’s merits 

hearing “clearly reviewed the record.” That the IJ did not formally state that he 

had done so did not deny Sandoval due process. Accordingly, we reject 
3 23-2001

Sandoval’s due process claim. 

2. To qualify for asylum, a petitioner “must prove that he is unwilling or 

unable to return to his country of origin ‘because of persecution or a well-founded 

fear of persecution on account of race, religion, nationality, membership in a 

particular social group, or political opinion.’” Henriquez-Rivas v. Holder, 707 

F.3d 1081, 1083 (9th Cir. 2013) (en banc) (quoting 8 U.S.C. § 1101(a)(42)). For 

withholding of removal, a petitioner must establish “a ‘clear probability’ of future 

persecution” on account of one of the same grounds. Garcia v. Holder, 749 F.3d 

785, 791 (9th Cir. 2014) (citation omitted). Because we uphold the BIA’s 

determination that Sandoval’s proposed particular social group (“PSG”)—

“Salvadoran men in gang-controlled territory,”—is not cognizable, his asylum and 

withholding of removal claims both fail. 

A PSG 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.” Akosung v. Barr, 970 F.3d 1095, 1103 (9th Cir. 2020)

(citation omitted). Sandoval’s proposed PSG lacks particularity. See SantosLemus v. Mukasey, 542 F.3d 738, 745-46 (9th Cir. 2008) (holding that the 

proposed PSG “young men in El Salvador resisting gang violence” is “too loosely 

defined to meet the requirement for particularity”). Thus, we deny Sandoval’s 

asylum and withholding of removal claims. 
4 23-2001

3. To qualify for CAT protection, Sandoval must prove it is “more likely 

than not” he will be tortured upon return to El Salvador. 8 C.F.R. § 1208.16(c)(2). 

There must be sufficient state action involved in the torture. See id.

§ 1208.18(a)(1). Substantial evidence supports the BIA’s determination that 

Sandoval “has not demonstrated that it is more likely than not that he would be 

tortured” by or with the acquiescence of the government if removed to El Salvador. 

Any harm cannot be attributed to the government because Sandoval did not report 

his interaction with the gangs to the police. “[P]ast torture is ordinarily the 

principal factor” for CAT protection, and Sandoval did not challenge the IJ’s 

determination that he had not suffered past torture. Nuru v. Gonzalez, 404 F.3d 

1207, 1218 (9th Cir. 2005). He did not otherwise demonstrate that he would be a 

victim of “gross, flagrant, or mass violations of human rights” in El Salvador. Id. 

at 1218-19. Consequently, we deny Sandoval’s CAT claim. 

The stay of removal remains in place until the mandate issues. 

PETITION DENIED.