                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            APR 30 2019
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


DIEGO ERNESTO BELLOSO-                           No.   17-71191
DELGADO,
                                                 Agency No. A205-978-520
              Petitioner,

 v.                                              MEMORANDUM*

WILLIAM P. BARR, Attorney General,

              Respondent.


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

                            Submitted April 18, 2019**
                             San Francisco, California

Before: FERNANDEZ, BEA, and N.R. SMITH, Circuit Judges.

      Diego Ernesto Belloso-Delgado (“Belloso-Delgado”), a citizen of El

Salvador, petitions for review of the order of the Board of Immigration Appeals

(“BIA”) dismissing his appeal of an Immigration Judge’s (“IJ”) decision denying


      *
             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).
his applications for asylum, withholding of removal on account of his membership

in a social group, and for relief under the Convention Against Torture (“CAT”).

      Belloso-Delgado agrees that he did not timely file his asylum application

and the issue is therefore waived.

      Substantial evidence supports the BIA’s and the IJ’s denial of Belloso-

Delgado’s application for withholding of removal under 8 U.S.C. § 1231(b)(3).

Citing Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994), the BIA adopted the

IJ’s decision that (1) the harms Belloso-Delgado experienced did not rise to the

level of past persecution, and (2) Belloso-Delgado failed to establish past

persecution or a clear probability of future persecution on account of a protected

ground, his membership in the social group of “individuals actively resisting

gangs.”

      First, Belloso-Delgado testified to an 18-second initiation beating, a coerced

tattoo, and unfulfilled threats, all by the 18th Street gang, which do not rise to the

level of past persecution. Gu v. Gonzales, 454 F.3d 1014, 1020 (9th Cir. 2006);

Hoxha v. Ashcroft, 319 F.3d 1179, 1182 (9th Cir. 2003). He provided no evidence

he would be persecuted if he were removed.

      Second, Belloso-Delgado did not establish that he was a member of any

group that opposed gang activity or that he opposed gang activity. Rather, the


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record shows he was a member of a gang who was paid by the gang for collecting

extortion, patrolling his neighborhood, and arranging a murder, though he testified

he did attempt to warn off the victim at the last minute. Belloso-Delgado also

claimed he feared he would be harmed by either his former gang for being an ex-

member or a rival gang because of his membership in his former gang, but gang

affiliation is not a socially distinct group in Salvadoran society and criminal

activity cannot be the defining characteristic of a particular social group. Reyes v.

Lynch, 842 F.3d 1125, 1137-38 (9th Cir. 2016). He did not provide any evidence

that the government of El Salvador was unable or unwilling to protect him from

gangs and thus reporting the activity would have been futile or placed him in

danger. Afriyie v. Holder, 613 F.3d 924, 931 (9th Cir. 2010). Rather, he testified

that the police attempted to break up gang activity and that Belloso-Delgado’s

girlfriend was not harmed by the gangs because her step-father was a police officer

and able to protect her.

      Belloso-Delgado applied for CAT protection pursuant to 8 C.F.R. §

1208.16-18. Substantial evidence supports the BIA’s and IJ’s determination that he

failed to establish that it is more likely than not he would be tortured with

government acquiescence if removed to El Salvador. Belloso-Delgado did not

provide evidence he had been tortured in the past. Rather, he testified to an 18-


                                           3
second initiation beating with no long-term health effects, a coerced tattoo, and

unfulfilled threats, all by the 18th Street gang. This does not rise to the level of

torture, defined as “extensive physical harm over time.” Guo v. Ashcroft, 361 F.3d

1194, 1197-98 (9th Cir. 2004). He provided no evidence he would be tortured in

the future if he were removed to El Salvador. He provided no evidence that the

government of El Salvador would participate in or acquiesce to his being tortured.

Rather, he testified the police in El Salvador broke up gang meetings and arrested

and charged gang members engaged in violence and criminal activity, including

Belloso-Delgado.

      PETITION FOR REVIEW DENIED.




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