Batres Agustin v. Whitaker ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-1469
JOSE GILBERTO BATRES AGUSTIN,
Petitioner,
v.
MATTHEW G. WHITAKER,
ACTING ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Torruella, Kayatta, and Barron,
Circuit Judges.
Lidia M. Sanchez, on brief for petitioner.
Walter Bocchini, Trial Attorney, Joseph H. Hunt, Assistant
Attorney General, and Linda S. Wernery, Assistant Director, Office
of Immigration Litigation, U.S. Department of Justice, on brief
for respondent.
January 25, 2019

Pursuant to Fed. R. App. P. 43(c)(2), Acting Attorney
General Matthew G. Whitaker has been substituted for former
Attorney General Jefferson B. Sessions III as the respondent.
BARRON, Circuit Judge. Jose Gilberto Batres Agustin
("Batres Agustin") is a Guatemalan national. He petitions for
review of the Board of Immigration Appeals' ("BIA") order, which
upheld the Immigration Judge's ("IJ") denial of his application
for both withholding of removal under 8 U.S.C. § 1231(b)(3) and
protection under the Convention Against Torture ("CAT") under 8
C.F.R. § 208.16(c)(4). We deny the petition.
I.
Batres Agustin entered the United States illegally in
December of 1989. During his nearly thirty years in the United
States, Batres Agustin was convicted three times of driving under
the influence. After his most recent arrest in 2015 for driving
under the influence, he was taken into custody by the Department
of Homeland Security ("DHS"), and, on December 2, 2015, DHS
initiated removal proceedings against him before an IJ in Boston,
Massachusetts.
Prior to those proceedings, Batres Agustin filed an I-
589 Application for Asylum and Withholding of Removal under §
241(b)(3) of the Immigration and Nationality Act ("INA"). He
indicated in this application that he anticipated "mistreatment at
the hands of the [gangs] and criminal elements in Guatemala" were
he to return to his home country and that his brother and daughter
had experienced gang violence in Guatemala in the past when they
refused to comply with the gangs' extortionist demands. He further
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indicated that he sought withholding of removal based on
"membership in a particular social group" and that he was not
afraid of being subjected to torture if he returned to Guatemala.
Batres Agustin's removal hearing was held on July 26,
2017. In seeking asylum and withholding of removal, he testified
that he feared extortion and violence from local gangs were he to
return to his home country. He also testified that his family had
experienced gang violence there in the past and noted that he was
particularly apprehensive, as someone returning from the United
States, because "the [gangs] ask for money as soon as they know
that you're coming back from [the United States]." When pressed
by his attorney as to his precise fears regarding his return,
Batres Agustin stated that he was "accustomed" to life in the
United States and, for that reason, was afraid of "start[ing] over"
in Guatemala.
At the hearing's conclusion, the IJ ruled that the asylum
application was untimely and that Batres Agustin had failed to
establish a well-founded fear of persecution upon his return to
Guatemala based on one of the five protected grounds enumerated in
8 U.S.C. § 1231(b)(3)(A) and thus was not entitled to withholding
of removal. Additionally, the IJ ruled that Batres Agustin was
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not entitled to protection under the CAT because he made no claim
that he would be tortured by anyone if he returned to Guatemala.1
On August 24, 2017, Batres Agustin appealed the IJ's
decision to the BIA. In affirming the IJ's ruling on April 20,
2018, the BIA found that Batres Agustin's application for asylum
was untimely because it was filed well after the one-year deadline.
The BIA also rejected his application for withholding of removal
because he had failed to "demonstrate past persecution or that any
feared harm would be on account of a protected ground." In so
finding, the BIA determined that the petitioner "did not
demonstrate a pattern or practice of persecution of a group of
similarly situated people" due to any protected ground. Finally,
the BIA rejected Batres Agustin's CAT claim because he had failed
to "testify regarding any past torture or fear of future torture."
Batres Agustin timely petitioned for review of the BIA's ruling on
May 18, 2018.
II.
Where, as here, the BIA issues its own opinion without
adopting the IJ's rationale, we review the BIA's decision. See
Touch v. Holder, 568 F.3d 32, 37-38 (1st Cir. 2009). Our review
1 Batres Agustin's I-589 Application did not purport to seek
relief under the CAT, and, therefore, it appears that the IJ
addressed and rejected the prospect of CAT relief of its own
accord.
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of the BIA's denial of claims for withholding of removal and for
CAT protection is for "substantial evidence." Id. at 38 (quoting
Rashad v. Mukasey, 554 F.3d 1, 4 (1st Cir. 2009)). "Under this
standard, we do not disturb [factual] findings if they are
'supported by reasonable, substantial, and probative evidence on
the record considered as a whole.'" Id. (quoting Segran v.
Mukasey, 511 F.3d 1, 5 (1st Cir. 2007)). "We reverse only if 'any
reasonable adjudicator would be compelled to conclude to the
contrary.'" Id. (quoting Tobon-Marin v. Mukasey, 512 F.3d 28, 30
(1st Cir. 2008)). We review purely legal questions, however, de
novo. Segran, 511 F.3d at 5.2
To establish eligibility for withholding of removal, a
petitioner must show "a clear probability of persecution," Ang v.
Gonzales, 430 F.3d 50, 58 (1st Cir. 2005), based on "race,
2
Batres Agustin concedes that his asylum claim was untimely,
but he argues for the first time to us that he qualifies for an
exception to the one-year filing window due to the District Court
for the Western District of Washington's recent decision in Rojas
v. Johnson, 305 F. Supp. 3d 1176 (W.D. Wash. 2018). However, we
are not bound by that precedent, and, insofar as Batres Agustin
means to rely on the reasoning set forth in Rojas, the argument is
waived, as Batres Agustin did not raise that argument to the BIA.
See Vineberg v. Bissonnette, 548 F.3d 50, 57-58 (1st Cir. 2008).
Separately, Batres Agustin states in a sentence in a footnote in
his brief to us that the notice to appear that he received did not
comply with the requirements established by the Supreme Court in
its recent opinion in Pereira v. Sessions, 138 S. Ct. 2105 (2018).
But this argument, too, is waived, as it is not adequately
developed. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir.
1990).
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religion, nationality, membership in a particular social group, or
political opinion," 8 U.S.C. § 1231(b)(3)(A). The BIA concluded,
however, that Batres Agustin had not shown past persecution or
that "any feared harm would be on account of a protected ground."
In so concluding, the BIA found that his general fear of civil
unrest in Guatemala did not suffice to show a probable fear of
persecution and that, to the extent that the particular social
group to which he claimed to belong was "wealthy individuals
returning from a lengthy stay in the United States," that class of
persons did not constitute a protected social group under 8 U.S.C.
§ 1231(b)(3)(A). The BIA also found that he "did not demonstrate
a pattern or practice of persecution of a group of similarly
situated people" due to any protected ground.
Batres Agustin does not dispute that, as the BIA noted,
a consistent line of our precedent supports the conclusion that
wealthy Guatemalans returning to Guatemala do not constitute a
protected social group. See, e.g., Sicaju-Diaz v. Holder, 663
F.3d 1, 4 (1st Cir. 2011) (rejecting the claim that wealthy
Guatemalans returning from the United States constitute a
protected social group); Garcia-Callejas v. Holder, 666 F.3d 828,
830 (1st Cir. 2012) (holding the same for wealthy El Salvadorans);
López-Castro v. Holder, 577 F.3d 49, 54 (1st Cir. 2009) (per
curiam) ("A country-wide risk of victimization through economic
terrorism is not the functional equivalent of a statutorily
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protected ground."). Nor does he dispute that, before the BIA,
the only social group to which he claimed to belong was one
comprised of wealthy individuals returning to Guatemala. But,
Batres Agustin argues, our line of precedent on which the BIA
relied does not control here.
Batres Agustin first attempts to distinguish his case by
contending that the record shows that his family has already
experienced the type of violence that he fears will befall him if
he returns. But, as Batres Agustin did not contend below -- and
does not argue to us -- that he has been or would be targeted on
the basis of his family status, this contention does not undermine
the BIA's ruling that the only social group to which Batres Agustin
claimed to belong -- wealthy individuals returning to Guatemala
-- was not a social group that the statute protected.
Batres Agustin also contends that his case may be
distinguished because he is an elderly man with no "social support"
in Guatemala. But, again, this assertion is beside the point, as
it, too, fails to show that the only social group to which he
claimed to belong is a statutorily protected one.
All that remains for us to consider, therefore, is Batres
Agustin's challenge to the BIA's ruling that he is not entitled to
protection under the CAT. The BIA so ruled because it concluded
that Batres Agustin had failed to establish that he feared torture
"inflicted by, at the direction of, or with the acquiescence of
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government officials." Hincapie v. Gonzales, 494 F.3d 213, 221
(1st Cir. 2007). Batres Agustin correctly points out that, even
though he did not raise a CAT claim before the IJ or the BIA, the
IJ and the BIA each addressed it. And, he now contends, the BIA's
rejection of it is not supported by substantial evidence because
the record suffices to show that his fear of gang violence stems
from the fact that the Guatemalan government "has been ineffective
in controlling" Guatemalan gangs. But, evidence of that general
kind does not suffice to show that the BIA's finding is not
supported by substantial evidence. See Alvizures–Gomes v. Lynch,
830 F.3d 49, 55 (1st Cir. 2016) (holding that generalized
allegations of corruption in the Guatemalan government did not
absolve the petitioner of the requirement that he provide specific
evidence that he faced a risk of torture as a direct result of
that corruption). Thus, this aspect of Batres Agustin's challenge
fails as well.
III.
The petition for review is denied.
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