Perez-Valenzuela v. Holder , 363 F. App'x 759 ( 2010 )

Not for Publication in West’s Federal Reporter
United States Court of Appeals
For the First Circuit
No. 09-1635
WILMER PEREZ-VALENZUELA,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lipez, Circuit Judge,
Souter, Associate Justice,* and Selya, Circuit Judge.
Stephen M. Born and Mills and Born were on brief for
petitioner.
Kerry A. Monaco, Trial Attorney, Office of Immigration
Litigation, Tony West, Assistant Attorney General, Civil Division,
and James E. Grimes, Senior Litigation Counsel, Office of
Immigration Litigation, were on brief for respondent.
February 3, 2010
*
The Hon. David H. Souter, Associate Justice (Ret.) of the
Supreme Court of the United States, sitting by designation.
SOUTER, Associate Justice. Wilmer Perez-Valenzuela
entered the United States illegally and has been ordered removed to
his country of citizenship, Guatemala. He petitions for review of
an order of the Board of Immigration Appeals (BIA) affirming the
immigration judge’s decision to deny his request for withholding of
removal and denying his motion before the BIA to remand to the
immigration judge for presentation of further evidence. We deny
the petition for review.
The immigration judge found Perez-Valenzuela’s testimony
credible, to the effect that he came to the United States to escape
the anarchic conditions in Guatemala, which tolerated gangs of
thugs threatening death to extort protection payments from
individuals known to have money or means of getting it. From a
time before he entered this country, a number of Perez-Valenzuela’s
relatives have been known to be working in the United States, with
the result that his own Guatemalan family members have been
threatened this way.
The judge denied Perez-Valenzuela’s application for
asylum as a matter of law, finding its untimeliness unexcused by
either changed or extraordinary circumstances, and also denied his
application for withholding of removal. The BIA affirmed,
specifically agreeing with the immigration judge that Perez-
Valenzuela had failed to show that he was targeted on account of a
protected ground for withholding of removal. The BIA further
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denied Perez-Valenzuela’s motion to remand for further proceedings
before the judge. Perez-Valenzuela had offered evidence that,
after the judge’s decision, a cousin of his in Guatemala was
kidnaped and held for “ransom of $7,000,” an event he reasonably
takes as evidence that he will himself be preyed upon if
repatriated. The BIA reasoned that this evidence did not address
a recognized ground of eligibility for the underlying relief
sought.
Perez-Valenzuela petitions for review of both aspects of
the BIA’s order. He argues that the facts established by his
testimony are sufficient to demonstrate eligibility for withholding
of removal on the ground of probable persecution based both on
political opinion, which he describes as opposition to gangs and
their practices, and on membership in a particular social group,
which he identifies as “Guatemalan m[e]n . . . perceived by gang
members to have disposable money available.” See 8 U.S.C.
§ 1231(b)(3); 8 C.F.R. § 1208.16(b). Perez-Valenzuela further
argues that his new evidence, if received, would also show “changed
circumstances” justifying consideration of an otherwise untimely
request for asylum. 8 U.S.C. § 1158(a)(2)(D).
Precedent in this circuit entails a short answer on all
issues. Oppression based on greed amounting to “economic
terrorism” is “not the functional equivalent of a statutorily
protected ground [for withholding of removal], and hostile
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treatment based on economic considerations is not persecution.”
López-Castro v. Holder, 577 F.3d 49, 54 (1st Cir. 2009); see also
Lopez de Hincapie v. Gonzales, 494 F.3d 213, 219-20 (1st Cir. 2007)
(upholding the BIA’s determination that threats of extortion were
not made on account of a statutorily protected ground for asylum).
The petitioner himself has described the gangs in question as
driven by money, a characterization that confirms the pertinence of
López-Castro and also makes clear that he has no independent claim
of probable persecution on political grounds, an alternative basis
for withholding of removal.
Given this rule, enforced by the BIA and accepted as good
law in this circuit, Perez-Valenzuela’s argument that the BIA is
improperly requiring that a qualifying persecuted group be
“visible” within society goes to a detail that could not affect
resolution of this case. Neither is there any need to decide
whether Perez-Valenzuela’s challenge to the BIA’s denial of his
motion to remand presents a question of law within the court’s
limited jurisdiction over pretermitted asylum claims. See 8 U.S.C.
§§ 1158(a)(3), 1252(a)(2)(D). The petition for review is denied.
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