FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HERBERTH NOEL AYALA, 

Petitioner, No. 08-71868

v. Agency No.  A073-967-361 ERIC H. HOLDER JR., Attorney

General, OPINION

Respondent. 

On Petition for Review of an Order of the

Board of Immigration Appeals

Submitted February 15, 2011*

San Francisco, California

Filed May 19, 2011

Before: Raymond C. Fisher** and Richard C. Tallman,

Circuit Judges, and Arthur J. Tarnow, District Judge.***

Per Curiam Opinion

*The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2). 

**Judge Raymond C. Fisher was drawn to replace Judge David R.

Thompson, now deceased. Judge Fisher has read the briefs and reviewed

the record. 

***The Honorable Arthur J. Tarnow, Senior United States District

Judge for the Eastern District of Michigan, sitting by designation. 

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COUNSEL

Frank P. Sprouls, Law Office of Ricci and Sprouls, San Francisco, California, for the petitioner-appellant. 

Gregory G. Katsas, Assistant Attorney General, Civil Division, Linda S. Wernery, Assistant Director, Susan Bennett

Green and Edward Earl Wiggers, Office of Immigration Litigation, U.S. Department of Justice, Washington, D.C., for the

respondent-appellee.

OPINION

PER CURIAM:

Herberth Noel Ayala, a native and citizen of El Salvador,

petitions for review of a decision of the Board of Immigration

Appeals (BIA) affirming an Immigration Judge’s denial of his

applications for asylum, withholding of removal and protection under the Convention Against Torture. He alleges that,

during his past service as a military officer, he investigated

drug crimes, and that after he was discharged he was attacked

and threatened by drug dealers he had personally arrested. We

have jurisdiction under 8 U.S.C. § 1252, and we deny the

petition for review. 

We review de novo questions of law, including whether a

group constitutes a “particular social group” under the ImmiAYALA v. HOLDER 6649
gration and Nationality Act (INA). See Perdomo v. Holder,

611 F.3d 662, 665 (9th Cir. 2010). We examine the BIA’s

factual findings, including whether a petitioner was persecuted on account of his membership in a “particular social

group,” under the substantial evidence standard. See INS v.

Elias-Zacarias, 502 U.S. 478, 481 (1992); Santos-Lemus v.

Mukasey, 542 F.3d 738, 742-43 (9th Cir. 2008).

[1] To establish eligibility for asylum, an applicant must

demonstrate that “race, religion, nationality, membership in a

particular social group, or political opinion was or will be at

least one central reason for persecuting the applicant.” 8

U.S.C. § 1158(b)(1)(B)(i). In this case, Ayala claims past persecution and a fear of future persecution on account of his

membership in a particular social group of former military

officers who suffer reprisals based on their prior prosecution

of wrongdoers. 

[2] Because Ayala was a former officer when the relevant

incidents took place, he is not precluded from establishing a

cognizable social group under the INA. Although in ArriagaBarrientos v. INS, 937 F.2d 411, 414 (9th Cir. 1991), we held

“that the military is not a social group qualifying its servicemen or former servicemen for asylum eligibility,” we later

recognized that former officers may be members of a cognizable social group. See Cruz-Navarro v. INS, 232 F.3d 1024,

1029 (9th Cir. 2000) (“Persons who are persecuted because of

their status as a former police or military officer, for example,

may constitute a cognizable social group under the INA.”);

Velarde v. INS, 140 F.3d 1305, 1311 (9th Cir. 1998)

(“Velarde’s status [as a former bodyguard to the Presidential

family] ‘is in fact an immutable characteristic’ which can provide the basis for finding ‘persecution on account of political

opinion or membership in a social group.’ ” (quoting Matter

of Fuentes, 19 I. & N. Dec. 658, 662 (B.I.A. 1988)), superseded by statute on other grounds as stated in Falcon Carriche v. Ashcroft, 350 F.3d 845, 854 n.9 (9th Cir. 2003);

Chanco v. INS, 82 F.3d 298, 303 (9th Cir. 1996) (“Chanco is

6650 AYALA v. HOLDER
correct that reprisals against former military officers can provide a basis for granting asylum.”). 

Moreover, the BIA has concluded, in Matter of C-A-, 23 I.

& N. Dec. 951 (B.I.A. 2006), that a particular social group of

former officers is conceivable. According to C-A-, “[w]ere a

situation to develop in which former police officers were targeted for persecution because of the fact of having served as

police officers, a former police officer could conceivably

demonstrate persecution based upon membership in a particular social group of former police officers.” Id. at 958-59. We

defer to the BIA’s interpretation of “particular social group”

and adopt C-A-’s analysis. See Nat’l Cable & Telecomms.

Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982-83

(2005). 

[3] Nonetheless, although Ayala is not precluded from

demonstrating membership in a particular social group, he is

still not entitled to relief. Even assuming Ayala’s proposed

social group is both “socially visible” and “particular,” Ayala

must establish that any persecution was or will be on account

of his membership in such group. See Santos-Lemus, 542 F.3d

at 743-44. “[I]t is not enough to simply identify the common

characteristics of a statistical grouping of a portion of the population at risk. Rather, . . . there must be a showing that the

claimed persecution is on account of the group’s identifying

characteristics.” Matter of E-A-G-, 24 I. & N. Dec. 591, 595

(B.I.A. 2008) (internal citations and quotation marks omitted).

[4] Substantial evidence supports the BIA’s determination

that Ayala failed to make this showing. Rather than demonstrating that Ayala was persecuted on account of his membership in a particular social group, the evidence demonstrates

that Ayala was only shot at and threatened because, while an

officer, he had arrested a particular drug dealer. Though disturbing, this type of persecution is not cognizable under the

INA. See C-A-, 23 I. & N. Dec. at 958-59 (“[I]f a former

police officer [is] singled out for reprisal, not because of his

AYALA v. HOLDER 6651
status as a former police officer, but because of his role in disrupting particular criminal activity, he [is] not . . . considered,

without more, to have been targeted as a member of a particular social group.”); see also Cruz-Navarro, 232 F.3d at 1030.

[5] Because Ayala has failed to establish eligibility for asylum, he necessarily fails to establish eligibility for withholding of removal. See Cruz-Navarro, 232 F.3d at 1031. Finally,

because there is no indication that Ayala will be tortured upon

return to El Salvador, or that any mistreatment he might suffer

upon return will be inflicted with the consent or acquiescence

of Salvadoran public officials, he is not entitled to protection

under the Convention Against Torture. See Arteaga v.

Mukasey, 511 F.3d 940, 948 (9th Cir. 2007).

PETITION FOR REVIEW DENIED.

6652 AYALA v. HOLDER