                             NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                             FILED
                             FOR THE NINTH CIRCUIT                             JUL 08 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

EMILIA GRANDE MERCADO; PEDRO                     No. 10-71311
MERCADO; ARISTIDES GIOVANNI
MERCADO GRANDE; DANY                             Agency Nos.        A088-558-110
HERIBERTO MERCADO GRANDE;                                           A088-558-111
SUSY YESENIA MERCADO GRANDE,                                        A088-558-112
                                                                    A094-999-022
              Petitioners,                                          A088-197-449

  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 June 12, 2014
                            San Francisco, California

Before: SCHROEDER, GRABER, and BYBEE, Circuit Judges.

       Emilia Grande Mercado, Pedro Mercado, Aristides Giovanni Mercado

Grande, Dany Heriberto Mercado Grande, and Susy Yesenia Mercado Grande

(collectively “Petitioners”) petition for review of the Board of Immigration


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Appeals’ (“BIA”) denial of their applications for asylum, withholding of removal,

and relief under the Convention Against Torture (“CAT”). We have jurisdiction to

review a final order of the BIA under 8 U.S.C. § 1252(a)(1).

      The immigration judge (“IJ”) determined that Petitioners were credible in

their testimony and that they had a subjectively and objectively reasonable fear of

future persecution, but that they failed to demonstrate that their fear of persecution

was on account of a protected ground. The BIA affirmed the IJ’s decision that

Petitioners had failed to establish a nexus to a protected ground.

      The record does not compel a contrary conclusion with respect to

Petitioners’ claims that they were persecuted on account of religion. Gu v.

Gonzales, 454 F.3d 1014, 1018 (9th Cir. 2006) (holding reversal is only warranted

where the evidence compels the contrary conclusion). While Petitioners may have

been religiously motivated, there is not compelling evidence that the gang

members were motivated by Petitioners’ religion, rather than by their anti-gang

activities and relative wealth.

      Petitioners also contend that they were persecuted on account of their

membership in a particular social group, the Mercado family. The BIA concluded

that Petitioners’ family did not meet the social visibility requirement, relying on In

re S-E-G-, 24 I. & N. Dec. 579 (B.I.A. 2008) which rejected a social group that


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was defined primarily by its resistance to gang membership. Since the BIA’s

decision, however, the law has changed with regard to the social visibility

requirement. See Henriquez-Rivas v. Holder, 707 F.3d 1081, 1085 (9th Cir. 2013)

(en banc) (holding the relevant question is one of “perception” rather than “on-

sight” visibility); In re W-G-R-, 26 I. & N. Dec. 208, 217 (B.I.A. 2014) (requiring

“social distinction” rather than visibility). Further, whether a group constitutes a

particular social group must be considered on a case-by-case basis, and a group

may not be rejected solely because a similar group had previously been rejected.

Pirir-Boc v. Holder, 750 F.3d 1077, 2014 WL 1797657, at *4 (9th Cir. May 7,

2014). In light of these changes to the law, we remand to the BIA for

reconsideration.

      Petitioners also propose a social group on the basis of their membership to

King’s Castle church, but that claim has not been exhausted before the BIA and we

lack jurisdiction to consider it. Barron v. Ashcroft, 358 F.3d 674, 678 (9th Cir.

2004). The BIA, however, has discretion to consider that additional proposed

social group on remand.

      Petitioners have not established eligibility for relief under CAT. Torture is

“an extreme form of cruel and inhuman treatment,” and Petitioners have not met

their burden of showing that they would be subjected to torture if returned to El


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Salvador. Al-Saher v. INS, 268 F.3d 1143, 1147 (9th Cir. 2001) (internal quotation

marks omitted).

      The petition for review is GRANTED in part and DENIED and

REMANDED in part. Each party is to bear its own costs.




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