Carlos Osmin-Diaz, a native and citizen of El Salvador, sought protection from removal in the United States. He applied for withholding of removal and protection under the Convention Against Torture, arguing that the Mara Salvatrucha (MS) gang sought to harm him for his public resistance to gang recruitment. An immigration judge denied his application, and the Board of Immigration Appeals dismissed his appeal. Osmin-Diaz then petitioned the Ninth Circuit for review, challenging the agency's findings on his social group, his torture claim, and the jurisdiction of the immigration court due to a defective Notice to Appear.
The panel reviewed the case de novo for legal questions and for substantial evidence regarding factual findings. First, regarding withholding of removal, the court addressed the proposed particular social group: 'young men in El Salvador who publicly resist recruitment by gangs.' Citing precedent such as Santos-Lemus v. Mukasey, the court found that similar groups are not cognizable because they are too loosely defined and not perceived as a distinct group by Salvadoran society. Consequently, the agency's finding that Osmin-Diaz was ineligible was supported by substantial evidence. Second, the court addressed the Convention Against Torture claim. The petitioner's brief concluded that the MS gang would torture him and that police would acquiesce, but offered no citations to the record or legal argument. The court deemed this contention purely conclusory and forfeited under Olea-Serefina v. Garland. Third, the court addressed the argument that a Notice to Appear lacking specific date and time information deprived the immigration judge of jurisdiction. While the Supreme Court in Pereira v. Sessions held such a notice does not stop the clock for cancellation of removal, the Ninth Circuit in Karingithi v. Whitaker held it still vests jurisdiction. Furthermore, the court noted that even if the Notice was defective, the petitioner failed to object to it before the immigration judge. Under 8 U.S.C. § 1252(d)(1), this failure to exhaust the claim-processing violation required the court to deny this portion of the petition.
The decision denies relief to the petitioner and affirms the removal order. It reinforces the Ninth Circuit's strict standard for defining particular social groups in gang-related cases, requiring groups to be clearly defined and socially distinct. The ruling also serves as a reminder that immigration litigants must provide specific factual support for Convention Against Torture claims and must raise procedural objections regarding Notices to Appear at the earliest stage of proceedings to preserve them for appellate review.
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