Beltrand-Alas v. Holder ( 2012 )

United States Court of Appeals
For the First Circuit
No. 11-1419
JOSE MAURICIO BELTRAND-ALAS,
Petitioner
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Howard and Thompson, Circuit Judges.
Randy Olen on brief for petitioner.
Daniel E. Goldman, Senior Litigation Counsel, Office of
Immigration Litigation, Civil Division, Department of Justice, Tony
West, Assistant Attorney General, Civil Division, Ada E. Bosque,
Senior Litigation Counsel, Office of Immigration Litigation, and
Andrew B. Insegna, Trial Attorney, on brief for respondent.
August 17, 2012
LYNCH, Chief Judge. Jose Mauricio Beltrand-Alas
petitions for review of a March 22, 2011, decision by the Board of
Immigration Appeals (BIA), which affirmed the decision of an
Immigration Judge (IJ) denying his application for withholding of
removal. We deny the petition for review.
I.
Beltrand-Alas is a native and citizen of El Salvador. He
unlawfully entered the United States in December 2003. On April
25, 2006, the Department of Homeland Security began removal
proceedings by filing a Notice to Appear with the immigration
court, charging Beltrand-Alas with removability as an alien present
in the United States without being admitted or paroled, and for
being present in the United States without a valid immigrant visa.
See 8 U.S.C. § 1182(a)(6)(A)(I); id. § 1182(a)(7)(A)(i)(I).
Beltrand-Alas admitted the factual allegations, conceded
removability, and requested relief in the form of political asylum
and withholding of removal. In the alternative, Beltrand-Alas
requested voluntary departure.
The IJ held Beltrand-Alas's merits hearing on September
16, 2009. Beltrand-Alas testified that he was born in
Chalatenango, El Salvador. He further testified that his brother,
Salvador, belonged to a gang and that an individual named Ulysses
made attempts to get Salvador to join his gang. Beltrand-Alas
advised Salvador against joining Ulysses's gang, prompting Ulysses,
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at gun point, to threaten to kill Beltrand-Alas. That same year,
Beltrand-Alas's brother Salvador was murdered by unknown persons.
The family left their home, and Beltrand-Alas's sister believed
someone from Ulysses's group was following her. Beltrand-Alas left
El Salvador approximately one year after his brother's death.
Beltrand-Alas testified that he fears returning to El
Salvador because he believes that other members of Ulysses's gang
will seek retribution against him. His nephew was murdered in
2008, and Beltrand-Alas testified that he believed Ulysses's gang
was responsible.
The IJ found that Beltrand-Alas's testimony was credible,
but that the application for political asylum was untimely.
Beltrand-Alas's explanations for the untimely application were
inadequate to qualify for an exception to the one-year filing
deadline.
The IJ also found that Beltrand-Alas was not a victim of
past persecution and further found that Beltrand-Alas had not met
his burden of showing persecution, a well-founded fear of
persecution, or a clear probability of persecution on account of a
statutorily protected ground. Additionally, the IJ found that
Beltrand-Alas did not establish himself to be a member of a
particular social group and that Beltrand-Alas's fear of harm was
not centrally based upon an actual or implied protected ground.
Although Beltrand-Alas did not raise a claim for protection under
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the Convention Against Torture (CAT), the IJ found that Beltrand-
Alas failed to establish that it would be more likely than not that
he would be tortured upon returning to El Salvador, and that the
torture would be inflicted by or at the instigation of or with the
consent or acquiescence of a public official or someone acting in
an official capacity. The IJ granted Beltrand-Alas voluntary
departure.
Beltrand-Alas appealed only the IJ's denial of
withholding of removal, and the BIA, finding no error, dismissed
the appeal. The BIA agreed with the IJ that Beltrand-Alas did not
show a nexus between any alleged harm and a protected ground. The
BIA explained that opposition to gangs does not generally create
the basis for a particular social group, and that even if the
proposed social group existed, Beltrand-Alas was targeted because
of a personal dispute with a gang member, not on account of a
protected ground. The BIA rejected Beltrand-Alas's argument that
his open and public opposition to gangs made his proposed social
group "socially visible," explaining that social visibility is not
about a readily perceivable trait, but whether society-at-large
conceptualizes individuals with that trait -- whether readily
perceivable or not -- as a concrete, identifiable group. Finally,
the BIA concluded that Beltrand-Alas was not a member in the
particular social group of "returning expatriates from the United
States" because he had submitted no evidence that such a group
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exists in El Salvador or that people returning from the United
States are targeted.
On April 15, 2011, Beltrand-Alas petitioned this court
for review of the BIA's decision.
II.
Where the BIA agrees with and affirms the IJ's result,
while adding additional justifications, as here, we review both the
BIA's and IJ's opinions. Nako v. Holder, 611 F.3d 45, 48 (1st Cir.
2010); Settenda v. Ashcroft, 377 F.3d 89, 92-93 (1st Cir. 2004).
We decide petitions for review based on the
administrative record that is the basis of the agency's findings,
8 U.S.C. § 1252(b)(4)(A), and "the administrative findings of fact
are conclusive unless any reasonable adjudicator would be compelled
to conclude to the contrary," id. § 1252(b)(4)(B). We accept
agency findings of fact "that are supported by substantial evidence
on the record as a whole." Morgan v. Holder, 634 F.3d 53, 57 (1st
Cir. 2011)(citing INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)).
We review the agency's conclusions of law de novo. Mendez-Barrera
v. Holder, 602 F.3d 21, 24 (1st Cir. 2010). We give "some
deference to the agency's founded interpretation of statutes and
regulations that it administers." McKenzie-Francisco v. Holder,
662 F.3d 584, 586 (1st Cir. 2011).
Withholding of removal protects an otherwise removable
alien from removal to a country where "the alien's life or freedom
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would be threatened in that country because of the alien's race,
religion, nationality, membership in a particular social group, or
political opinion." 8 U.S.C. § 1231(b)(3)(A). The BIA has
described the term "particular social group" as a group of persons
sharing a common, immutable characteristic that makes the group
socially visible and sufficiently particular, In re C-A-, 23
I. & N. Dec. 951, 955-57 (BIA 2006); see also Faye v. Holder, 580
F.3d 37, 41 (1st Cir. 2009), a delineation that we have upheld as
reasonable, see Mendez-Barrera, 602 F.3d at 25-26.
Beltrand-Alas bears the burden of showing it is more
likely than not that he will suffer persecution on account of one
of the five protected grounds if removed to El Salvador. Makalo v.
Holder, 612 F.3d 93, 96 (1st Cir. 2010). A showing of past
persecution in the proposed country of removal on account of one of
the five statutory grounds creates a rebuttable presumption that
persecution is likely. 8 C.F.R. § 1208.16(b)(1)(i); Viela v.
Holder, 620 F.3d 25, 28 (1st Cir. 2010). Furthermore, under the
REAL ID Act of 2005, Beltrand-Alas bears the burden of showing that
one of the five protected grounds was or will be at least "one
central reason" for his persecution.1 8 U.S.C. § 1158(b)(1)(B)(i);
see also id. § 1231(b)(3)(C).
1
The REAL ID Act of 2005 is applicable to Beltrand-Alas
because he submitted his application for withholding of removal
after the May 11, 2005, effective date of the Act. See 8 U.S.C.
§ 1158 note (Effective Date of 2005 Amendment); Díaz-García v.
Holder, 609 F. 3d 21, 27 (1st Cir. 2010).
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Substantial evidence supports the agency's determination
that Beltrand-Alas failed to show that it is more likely than not
that, if removed to El Salvador, he would suffer persecution on
account of his membership in a particular social group or on
account of political opinion. Our precedents foreclose Beltrand-
Alas's claim that he will be subjected to persecution on account of
his membership in the group of persons who oppose gangs or in the
group of persons of perceived wealth. Furthermore, Beltrand-Alas
failed to meet the burden of producing evidence that he was or will
be targeted on account of a political opinion.
In Garcia-Callejas v. Holder, 666 F.3d 828 (1st Cir.
2012), this court noted that it has decided a number of cases that
have rejected the argument that people who oppose gang membership
or recruitment are members of a particular social group. Id. at
830. In Mendez-Barrera, we held that young El Salvadoran women who
resist gang recruitment are not a legally recognized social group
because the proposed group lacks social visibility and is not
sufficiently particular. 602 F.3d at 26-27. Like in Mendez-
Barrera, Beltrand-Alas has not pinpointed any group characteristic
that renders the members of the proposed group socially visible.
Id. at 26. We have also rejected the argument that those who
expressly oppose gangs are sufficiently visible. In Mendez-
Barrera, we stated, "[t]he relevant inquiry is whether the social
group is visible in the society, not whether the alien herself is
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visible to the alleged persecutors." Id. at 27. Thus, the
argument fails.
Beltrand-Alas argues that in light of Judulang v. Holder,
132 S. Ct. 476 (2011), the BIA's use of "social visibility" in the
social group analysis is an arbitrary and capricious interpretation
of the statute. However, Judulang is inapposite to this case as it
involved a different statutory provision and did not involve an
agency's interpretation of any statutory language. See id. at 484
n.7. By contrast, this court has held that the social visibility
criterion is reasonable because "it represents an elaboration of
how th[e] requirement operates," Mendez-Barrera, 602 F.3d at 26,
and is an interpretation of an ambiguous statutory term, id. at 25-
26 (citing Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,
467 U.S. 837, 842-43 (1984)). Judulang does not alter that
analysis.
We have also noted that we have rejected proposed social
groups "based solely on perceived wealth, even if signaling an
increased vulnerability to crime," Garcia-Callejas, 666 F.3d at
830, regardless of why one is perceived as wealthy, see Sicaju-Diaz
v. Holder, 663 F.3d 1, 3-4 (1st Cir. 2011). Beltrand-Alas's
argument that he would likely be subject to persecution because he
may be deemed wealthy because of his status as a returning
expatriate from the United States fails. "In a poorly policed
country, rich and poor are all prey to criminals who care nothing
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more than taking [property] for themselves." Id. at 4. Beltrand-
Alas's own testimony that the police did not protect anyone from
gangs provides substantial support for the BIA's finding that this
proposed social group is not a cognizable one. Nor did any
testimony establish any evidence that expatriates are targeted in
El Salvador.
Substantial evidence supports the finding that Beltrand-
Alas was not targeted on account of a political opinion. In
Arévalo-Girón v. Holder, 667 F.3d 79 (1st Cir. 2012), we observed
that greed was the motivating force for gangs. Id. at 83. Gangs,
like guerillas and common criminals, are "apt to resort to violent
means to accomplish their goals, and it is the alien's burden to
give the adjudicator some basis for differentiation in a given
case." Lopez de Hincapie v. Gonzales, 494 F.3d 213, 219 (1st Cir.
2007). Beltrand-Alas's testimony that Ulysses threatened him
because he advised his brother against joining the gang and that
Ulysses was trying to make more money as a member of the gang
confirms such reasoning.
Because there was no error in the BIA's determination
discussed above, it is unnecessary to review Beltrand-Alas's claim
that the agency erred in determining that he did not suffer past
persecution. The failure to demonstrate a nexus between the
alleged harm and a protected ground is fatal to the claim.
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Accordingly, we deny Beltrand-Alas's petition for review.
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