                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                           FEB 12 2010

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

EDWIN ARTURO IRIAS-AGUERO,                       No. 08-73688

             Petitioner,                         Agency No. A200-109-920

  v.
                                                 MEMORANDUM *
ERIC H. HOLDER Jr., Attorney General,

             Respondent.



                     On Petition for Review of an Order of the
                         Board of Immigration Appeals

                      Argued and Submitted January 15, 2010
                            San Francisco, California

Before: NOONAN, HAWKINS and M. SMITH, Circuit Judges.


       Petitioner Edwin Arturo Irias-Aguero (“Aguero”), a native and citizen of

Honduras, seeks review of a decision of the Board of Immigration Appeals (“BIA”)

denying his application for asylum, withholding of removal, and relief pursuant to the

Convention Against Torture (“CAT”).



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Aguero claims he was targeted as a member of a “particular social group”:

those who have witnessed gang crimes, or, as they are referred to in Honduras,

“toads.” However, the BIA did not err in concluding that “toads” do not qualify as a

particular social group within the meaning of the Immigration and Nationality Act.

8 U.S.C. § 1101(a)(42)(A). We have previously upheld the BIA’s determination that

young males in Central America who resist gang recruitment are not a particular social

group because they “make up a potentially large and diffuse segment of society” and

lack attributes that are generally visible to society. Ramos-Lopez v. Holder, 563 F.3d

855, 860-61 (9th Cir. 2009). Those who have witnessed criminal acts by gangs are

a potentially even larger and more diffuse group, as they could be of any gender or age

and, although identifiable to other gang members, are not generally visible to society

at large. See Santos-Lemus v. Mukasey, 542 F.3d 738, 745-46 (9th Cir. 2008); see

also Soriano v. Holder, 569 F.3d 1162, 1166 (9th Cir. 2009) (rejecting “government

informants” as a particular social group because they are not a “narrowly defined” or

“cohesive, homogeneous” group). As Aguero does not qualify for asylum on account

of a protected ground, he necessarily does not satisfy the higher standard for

withholding of removal. Mansour v. Ashcroft, 390 F.3d 667, 673 (9th Cir. 2004).

      With respect to Aguero’s CAT claim, however, we are unable to ascertain

whether the BIA applied the correct legal standard to the facts of this case. Although


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the BIA quotes the appropriate regulation, it also cites to three decisions interpreting

and applying the regulation, two of which have been overruled. See In re Y-L-, 23 I.

& N. Dec. 270 (A.G. 2002), overruled in part by Zheng v. Ashcroft, 332 F.3d 1186,

1196-97 (9th Cir. 2003) (disapproving to the extent the BIA required actual

knowledge and willful acceptance by government to constitute “acquiescence,” where

Congress intended awareness and willful blindness to suffice), and Khouzam v.

Ashcroft, 361 F.3d 161, 171 (2d Cir. 2004) (same); In re J-E-, 23 I. & N. Dec. 291

(BIA 2002) (en banc), overruled by Azanor v. Ashcroft, 364 F.3d 1013, 1020 (9th Cir.

2004) (rejecting BIA’s requirement of custody or physical control of the victim by a

public official).

       It is impossible to tell from its opinion whether the BIA applied the correct legal

standard to Aguero’s CAT claim. As we explained in Azanor:

       Unfortunately, the Board’s terse conclusion does not disclose whether it
       relied on the erroneous state custody requirement when it determined
       that [petitioner] “fail[ed] to put forth a prima facie claim for relief under
       the [Torture Convention].” . . . Under such circumstances, “the proper
       course . . . is to remand to the agency for additional investigation or
       explanation.”

364 F.3d at 1021 (quoting INS v. Ventura, 537 U.S. 12, 16 (2002)). Therefore, we

express no opinion as to the merits of Aguero’s CAT claim, but remand for the BIA

to exercise its judgment in the first instance, evaluating the claim under the



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appropriate legal standards. See Vukmirovic v. Ashcroft, 362 F.3d 1247, 1253 (9th

Cir. 2004) (remanding for application of proper legal standard); Kotasz v. INS, 31 F.3d

847, 851, 855 (9th Cir. 1994) ( same).

      Finally, Aguero claims that his due process rights were violated because the IJ

heard his testimony on three different days, each separated by a month or more. He

contends this piecemeal proceeding may have impacted the IJ’s adverse credibility

determination. However, as the BIA did not affirm the adverse credibility finding, but

denied relief on an entirely different ground, Aguero has not demonstrated any

prejudice flowing from the IJ’s actions, and his claim must be denied. See Zolotukhin

v. Gonzales, 417 F.3d 1073, 1076 (9th Cir. 2005).

      We DENY Aguero’s petition regarding his claims for asylum, withholding of

removal and due process. We GRANT his petition regarding CAT and REMAND

to the BIA for further proceedings consistent with this disposition. Each party to bear

its own costs on appeal.




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