                                                                            FILED
                             NOT FOR PUBLICATION
                                                                             JUN 22 2018
                     UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


ROBERTO EDGARDO ALVAREZ, AKA                     No.    15-70922
Roberto Alvarez,
                                                 Agency No. A043-432-572
               Petitioner,

          v.                                     MEMORANDUM*

JEFFERSON B. SESSIONS III, Attorney
General,

               Respondent.


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

                         Argued and Submitted June 4, 2018
                               Pasadena, California

Before: FISHER and OWENS, Circuit Judges and MOLLOY,** District Judge.

      Roberto Edgardo Alvarez, a native and citizen of El Salvador, petitions for

review of the Board of Immigration Appeals’ decision affirming an immigration

judge’s ruling that he is ineligible for cancellation of removal, asylum, withholding

      *
       This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
         The Honorable Donald W. Molloy, United States District Judge for the
District of Montana, sitting by designation.
of removal and relief under the Convention Against Torture (CAT). We have

jurisdiction under 8 U.S.C. § 1252. We review for substantial evidence factual

findings. Hernandez-Mancilla v. Holder, 633 F.3d 1182, 1184 (9th Cir. 2011).

We review de novo due process claims and questions of law. Simeonov v.

Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). We deny in part and grant in part the

petition for review.

      1. Substantial evidence supports the BIA’s denial of Alvarez’s cancellation

of removal and asylum claims. “An applicant for asylum or for cancellation of

removal is not eligible for these forms of relief if he has been convicted of an

aggravated felony.” Rendon v. Mukasey, 520 F.3d 967, 973 (9th Cir. 2008). A

state drug crime qualifies as an aggravated felony if it “contains a trafficking

element” or would be punishable “as a felony under the federal drug laws.” Id. at

974; see Cazarez-Gutierrez v. Ashcroft, 382 F.3d 905, 912 (9th Cir. 2004). Here,

Alvarez was convicted for possession of cocaine for sale under California Health

and Safety Code § 11351.5, a drug trafficking aggravated felony under 8 U.S.C.

§ 1101(a)(43)(B) that renders him ineligible for asylum and cancellation of

removal. See Rendon, 520 F.3d at 976. Because of this conviction, Alvarez does

not qualify for first-offender treatment under the Federal First Offender Act, 18

U.S.C. § 3607(c). See Nunez-Reyes v. Holder, 646 F.3d 684, 694-95 (9th Cir.


                                           2
2011) (en banc) (court may not accord FFOA treatment to crimes that are “not . . .

possession crime[s] at all” and that are “qualitatively different from” the crime of

simple possession).

      2. Substantial evidence also supports the BIA’s conclusion that Alvarez is

ineligible for withholding of removal based on his two proposed social groups.

First, Alvarez claims membership in a particular social group of former gang

members with gang tattoos. Such a group, however, does not qualify as a

cognizable social group. See Reyes v. Lynch, 842 F.3d 1125, 1137–38 (9th Cir.

2016) (proposed social group of former gang members who have returned to El

Salvador is not cognizable); Arteaga v. Mukasey, 511 F.3d 940, 945 (9th Cir.

2007) (tattooed former gang members do not constitute a particular social group).

Second, Alvarez claims membership in the group “member of a family whose

leader, [the] father, has been targeted” or son of a former member of the

Salvadoran military who has been targeted. Although family is a recognized social

group, Alvarez has not demonstrated the requisite nexus between his proposed

group and the harm he fears. See Matter of L-E-A-, 27 I. & N. Dec. 40, 45 (BIA

2017) (“[N]exus is not established simply because a particular social group of

family members exists and the family members experience harm.”).




                                           3
      3. The BIA erred, however, in summarily upholding the IJ’s finding

regarding CAT relief and not addressing Alvarez’s contention “that if he was

deported back to his country of origin, the government would persecute him for his

former association with the M[S]-13 gang, which was quite evident given the

nature of his gang related tattoos.”1 It is unclear from the BIA’s limited discussion

of the CAT claim whether it relied on the IJ’s opinion or conducted its own

independent review. See Avetova-Elisseva v. I.N.S., 213 F.3d 1192, 1197 (9th Cir.

2000) (“[T]he lack of analysis that the BIA opinion devoted to the issue at hand –

its simple statement of a conclusion – . . . suggests that the BIA gave significant

weight to the IJ’s findings.”); cf. Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir.

2006) (“[O]ur review is limited to the BIA’s decision, except to the extent that the

IJ’s opinion is expressly adopted.” (internal quotation marks omitted)). We


      1
         Alvarez made this argument concerning his gang tattoos and fear of
government persecution in the section of his BIA appeal brief discussing asylum
and cancellation of removal, and not under the heading “Withholding of Removal
and Relief Under the Convention Against Torture.” Nonetheless, we conclude
Alvarez preserved this issue for appeal with regard to his CAT claim. See
Figueroa v. Mukasey, 543 F.3d 487, 492 (9th Cir. 2008) (exhaustion doctrine need
not be applied “in a formalistic manner” and requires only that the petitioner put
the BIA on notice as to the specific issues) (internal quotation marks and citations
omitted); see also Cruz-Navarro v. INS, 232 F.3d 1024, 1030 n.8 (9th Cir. 2000)
(addressing imputed political opinion argument even though issue was argued in
“slightly different manner” before the BIA); Mamouzian v. Ashcroft, 390 F.3d
1129, 1136 (9th Cir. 2004) (“Mamouzian’s brief may not be perfectly written, but
it is not difficult to discern the point she is trying to make.”).
                                           4
therefore “look to the IJ’s oral decision as a guide to what lay behind the BIA’s

conclusion.” Avetova-Elisseva, 213 F.3d at 1197.

      Here, the IJ’s CAT claim analysis was materially deficient in two ways.

First, her analysis addressed only Alvarez’s fear of gang-on-gang violence without

sufficiently evaluating Alvarez’s fear of violence from the Salvadoran government.

To be sure, the evidence of the Salvadoran government’s policy against gangs and

of targeting individuals with gang-related tattoos is thin. Such evidence, however,

as well as argument regarding El Salvador’s anti-gang policy known as Mano

Dura or “Iron Fist” that “advocates the immediate imprisonment of gang members,

who can be arrested simply for having gang related tattoos or flashing signs” was

presented to the IJ. The government conceded at oral argument that the IJ, in

denying CAT relief, did not distinguish between the potential for violence from

gang members versus the Salvadoran government. Second, the IJ looked only at

Alvarez’s “long-ago gang involvement.” That Alvarez is “10 years removed from

gang involvement, ” however, is inconsequential to the issue of his being targeted

for violence—by either the government or gang members—because of his visible

tattoos, which do not identify whether he is a current gang member or not. The IJ

herself acknowledged the “rampant” gang violence in El Salvador that includes

gang members killing other gang members.


                                          5
      4. We reject Alvarez’s claim that the BIA violated his due process rights

when it sustained the government’s appeal of the IJ’s earlier 2006 decision to

terminate removal proceedings because of the government’s failure to timely file

documents related to his possession for sale conviction. Alvarez suffered no

prejudice because even without the BIA’s remand order, the government could

have reached the same result—charging Alvarez with removability based on the

possession for sale conviction—by filing a new notice to appear. See

Padilla-Martinez v. Holder, 770 F.3d 825, 830 (9th Cir. 2014) (“To prevail on a

due-process claim, a petitioner must demonstrate both a violation of rights and

prejudice.”). Likewise, no due process violation occurred when the BIA failed to

refer his case to a three judge panel. See Falcon Carriche v. Ashcroft, 350 F.3d

845, 851 (9th Cir. 2003) (“[I]t does not violate the Due Process Clause for one

member of the BIA to decide an alien’s administrative appeal.”). Finally, Alvarez

generally argues the BIA violated his due process rights by failing to address the

evidence he submitted about El Salvador. Because any failure by the agency to

consider this evidence would have affected only Alvarez’s CAT claim, we need not




                                          6
reach this due process contention in light of our disposition. See supra ¶ 3.

      Petition DENIED in part and GRANTED in part and REMANDED.2




      2
         In a previous case, the agency and this court considered Congressional
Research Service Reports concerning El Salvador. See Aguilar-Rodriguez v.
Sessions, 694 F. App’x 531, 532 (9th Cir. 2017) (unpublished) (petitioner
“submitted evidence of changed country conditions that bear on whether it is
reasonably likely he would be tortured or killed if he returns to El Salvador
because his gang tattoos will make him a target under the aggressive anti-gang
policies of the recently elected Salvadoran government”). On remand, the parties
may wish to supplement the record with the most recent version of this CRS report.
See Clare Ribando Seelke, U.S. Congressional Research Service Report for
Congress: El Salvador: Background and U.S. Relations (Nov. 3, 2017)
(http://fas.org/sgp/crs/row/R43616.pdf).
                                          7
