Aguilon-Lopez v. Lynch , 664 F. App'x 14 ( 2016 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 15-2570
RUFINO AGUILON-LOPEZ,
Petitioner,
v.
LORETTA E. LYNCH, ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Kayatta, Stahl, and Barron,
Circuit Judges.
Jason Panzarino and The Law Office of Johanna Herrero on brief
for petitioner.
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Civil Division, United States Department of Justice,
Jocelyn Lopez Wright, Senior Litigation Counsel, Office of
Immigration Litigation, and Stefanie Notarino Hennes, Trial
Attorney, Office of Immigration Litigation, on brief for
respondent.
December 12, 2016
STAHL, Circuit Judge. Petitioner Rufino Aguilon-Lopez,
a native and citizen of Guatemala, seeks review of the Board of
Immigration Appeals's ("BIA") final order affirming an Immigration
Judge's ("IJ") decision denying his applications for withholding
of removal and protection under the United Nations Convention
Against Torture ("CAT"). Specifically, Aguilon-Lopez asserts that
he and his family have suffered past persecution in Guatemala and,
as a result, he holds a well-founded fear of future persecution.
Aguilon-Lopez also faults the BIA for affirming the dismissal of
his CAT claim, maintaining that were he to return to his home
country, it is more likely than not that he would suffer torture
at the hands of a Guatemalan gang with the acquiescence of the
Guatemalan government. Based on the record before us, we find the
IJ decision and BIA order governed by controlling precedent.
Consequently, we deny his petition.
I. Facts & Background
Aguilon-Lopez illegally entered the United States in
February 2009. Approximately three and a half years later, after
a traffic stop that revealed his undocumented status, the
Department of Homeland Security personally served Aguilon-Lopez
with a Notice to Appear ("NTA"), charging him with removability as
an alien present in the United States without being admitted or
paroled. See 8 U.S.C. § 1182(a)(6)(A)(1).
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In later written pleadings, Aguilon-Lopez admitted to
the factual allegations contained in the NTA and conceded
removability. A hearing before an IJ was held on August 28, 2013,
during which Aguilon-Lopez argued that he was entitled to
withholding of removal or, alternatively, CAT protection.
Specifically with respect to his withholding of removal claim,
Aguilon-Lopez argued that he was a member of a particular social
group, residents of Guatemala who have been threatened with gang
violence and recruitment to a gang, and have refused, and that his
"life or freedom [was] threatened . . . because of [his] . . .
membership in [this] particular social group . . . ." 8 U.S.C. §
1231(b)(3)(A).
Testifying in support of his applications, Aguilon-Lopez
first explained that on two occasions in the mid-1980's, the
Guatemalan government had falsely incarcerated his father. The
second incident, he said, related to the government's mistaken
belief that his father was affiliated with anti-government
guerillas. However, Aguilon-Lopez admitted that his father has
not experienced any problems with the Guatemalan government since
that time. He also admitted to never personally suffering harm at
the hands of the Guatemalan government as a result of its
misunderstanding with his father.
Aguilon-Lopez did, however, recount several altercations
between him, his family, and Guatemalan gang members. On one
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occasion, when he was eight years old, Aguilon-Lopez encountered
gang members who briefly detained him and demanded he "join them"
or else he would be "against them." Shortly thereafter, the gangs
extorted Aguilon-Lopez's uncle for money. When his uncle could
not afford to make the payments, the gangs retaliated by firing
guns into his uncle's house. Though no one was injured and his
family reported the incident to police, "nothing happened."
On another occasion, gang members violently robbed a
group of people, including a then 16-year-old Aguilon-Lopez, at a
public market.1 Police later arrived at the scene, but by then
the gang members had fled. Aguilon-Lopez remained in Guatemala
for approximately three years after the incident, during which
time he had no further encounters with gang members.
After hearing this testimony and evaluating the record,
the IJ denied Aguilon-Lopez's application for relief and judged
him removable. Despite finding his testimony credible, the IJ
concluded that Aguilon-Lopez had failed to establish past
persecution based on a protected ground, finding that his testimony
recounted only "a series of isolated events, not systemic
mistreatment" and, alternatively, that "there [was] nothing to
differentiate members of [his proposed social group] from others
1 Aguilon-Lopez also noted that his brother was involved in a
comparable incident sometime after Aguilon-Lopez arrived in the
United States.
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in the general populace in Guatemala." The IJ also denied Aguilon-
Lopez's CAT claim because he failed to make a required showing
that Guatemalan authorities would acquiesce to the harm he feared
from the Guatemalan gangs.
Aguilon-Lopez timely filed for review before the BIA on
September 29, 2014. The BIA declined to address whether Aguilon-
Lopez established past persecution, but affirmed the IJ on the
basis that Aguilon-Lopez had failed to show a nexus to a protected
ground. The BIA also agreed that Aguilon-Lopez's testimony "[did]
not suffice to establish" a CAT violation. This petition for
review followed.
II. Standard of Review
"In the immigration context, judicial review usually
focuses on the BIA's decision." Jianli Chen v. Holder, 703 F.3d
17, 21 (1st Cir. 2012). However, where the BIA "adopts portions
of the IJ's findings while adding its own gloss, we review both
the IJ's and the BIA's decisions as a unit." Renaut v. Lynch, 791
F.3d 163, 166 (1st Cir. 2015) (internal quotation marks and
citation omitted).
Thus, we review the administrative findings of fact
under the "'highly deferential' substantial evidence standard,
under which we uphold [these findings] 'so long as they are
supported by reasonable, substantial, and probative evidence on
the record considered as a whole.'" Vega-Ayala v. Lynch, 833 F.3d
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34, 38-39 (1st Cir. 2016) (quoting Nikijuluw v. Gonzales, 427 F.3d
115, 120 (1st Cir. 2005)). We reverse "only if the record is such
as to compel a reasonable factfinder to reach a contrary
determination." Jianli Chen, 703 F.3d at 21. Legal
determinations, meanwhile, are reviewed de novo, subject to
appropriate principles of administrative deference. Larios v.
Holder, 608 F.3d 105, 107 (1st Cir. 2010).
III. Analysis
Withholding of removal is available if "the alien's life
or freedom would be threatened in [their home 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). Aguilon-Lopez bears the burden of establishing his
eligibility for withholding of removal, 8 C.F.R. § 1209.16(b),
meaning he must demonstrate (1) a "clear probability" that he was
or will be persecuted, see INS v. Stevic, 467 U.S. 407, 413 (1984),
and (2) a nexus between the alleged persecution and one of the
statutorily protected grounds, see Sompotan v. Mukasey, 533 F.3d
63, 68 (1st Cir. 2008). Since he seeks withholding of removal
based on his membership in a particular social group, Aguilon-
Lopez must establish that his proposed group is "(1) composed of
members who share a common immutable characteristic; (2) defined
with particularity; and (3) socially distinct within the society
in question." Paiz-Morales v. Lynch, 795 F.3d 238, 244 (1st Cir.
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2015) (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA
2014)).2
We have no need to analyze the first and third
requirements because even if Aguilon-Lopez established that he
shared an immutable characteristic with a distinct social group,
his argument still fails because his putative social group was not
defined with particularity.3 This is not the first time this Court
has encountered, and rejected, the type of social group Aguilon-
Lopez presses. See, e.g., Paiz-Morales, 795 F.3d at 242 ("members
that oppose gang membership" in Guatemala); Mendez-Barrera v.
Holder, 602 F.3d 21, 27 (1st Cir. 2010) ("young women recruited by
gang members who resist such recruitment" in El Salvador); Larios
v. Holder, 608 F.3d 105, 108-09 (1st Cir. 2010) ("young Guatemalan
2 While the IJ expressly ruled that the harm Aguilon-Lopez
experienced in Guatemala was not severe enough to constitute past
persecution or constitute a basis for a well-founded fear of future
persecution, we, like the BIA, do not reach the issue. As we shall
explain, his claim fails because, regardless of whether he
established persecution, he did not establish his membership in a
particularized social group. 8 U.S.C. § 1158(b)(1)(B)(1)
(requiring that an applicant show that a protected ground was a
"central reason" for the persecution); see also Granada-Rubio v.
Lynch, 814 F.3d 35, 38 (1st Cir. 2016) (holding that an alien who
alleges persecution on account of membership in a particular social
group must show "at a bare minimum that []he is a member of a
legally cognizable social group.").
3 We agree with the Government that because of this
requirement, we need not consider Aguilon-Lopez's argument that
the BIA erred by failing to consider his social group claim under
a mixed-motive analysis. See Aldana-Ramos v. Holder, 757 F.3d 9,
18-19 (1st Cir. 2014) (describing the mixed-motive analysis).
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men recruited by gang members who resist such recruitment"); Diaz-
Ruano v. Holder, 420 Fed. App'x. 19, 21-22 (1st Cir. 2011)
(unpublished opinion) ("young male[s] sought out for information
and recruitment by the criminal gang of Guatemala").
After distilling these cases, it is evident why Aguilon-
Lopez's proposed social group is not legally cognizable. In terms
of particularity, Aguilon-Lopez only offers testimony that the
Guatemalan gangs have a "very evolved system" for finding those
who are "against them." While we do not doubt that these gangs
have significant resources at their disposal to achieve such ends,
the proposed social group remains comprised of people from an
impermissibly broad variety of ages and backgrounds. See Matter
of M-E-V-G-, 26 I. & N. at 238-39 ("The 'particularity' requirement
relates to . . . the need to put 'outer limits' on the definition
of a 'particular social group' . . . The group must also be discrete
and have definable boundaries -- it must not be amorphous,
overbroad, diffuse, or subjective.").
His proposed social group raises questions about the
"type of conduct that may be considered 'recruit[ment]' and the
degree to which a person must display 'resist[ance].'" Mendez-
Barrera, 602 F.3d at 27 (quoting Faye v. Holder, 580 F.3d 37, 42
(1st Cir. 2009) (alterations in original). These group
characteristics are highly amorphous, largely subjective, and
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generally inhibit the "accurate separation of members from non-
members." Ahmed v. Holder, 611 F.3d 90, 94 (1st Cir. 2010).
Beyond this, Aguilon-Lopez has not established that his
putative social group is a meaningfully distinct segment of the
Guatemalan population. Aguilon-Lopez was required to show that
the proposed group is "generally recognized in the community as a
cohesive group." Mendez-Barrera, 602 F.3d at 26. Like others
before him, Aguilon-Lopez failed to offer any evidence to this
effect. See Larios, 608 F.3d at 109; Mendez-Barrera, 602 F.3d at
26-27.
We next turn to Aguilon-Lopez's fallback claim that he
was persecuted on account of his and his family's political
opinions. This claim is misguided, and we find the BIA's treatment
of it well-reasoned:
Initially, we note that in his asylum application, the
respondent did not indicate that he was seeking
withholding of removal on account of political opinion[].
Even if he had, the evidence does not support such a claim
. . . . The respondent has not claimed that his father's
detentions involved him, and the respondent testified that
his father has had no problems with the Guatemalan
authorities since the two incidents in the 1980s.
We also note that Aguilon-Lopez has never personally
experienced harm at the hands of the Guatemalan government for any
reason, let alone in relation to his father's suspected anti-
government beliefs. See Mendez-Barrera, 602 F.3d at 27 ("Holding
religious or political beliefs, without more, is not sufficient to
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show persecution on account of those beliefs . . . . There must
be evidence that the would-be persecutors knew of the beliefs and
targeted the belief holder for that reason.") (emphasis in
original). Accordingly, we find no merit to Aguilon-Lopez's
challenge to this aspect of the BIA's decision.
Finally, Aguilon-Lopez's claim for protection under the
CAT similarly fails because he has not shown that he will be
subject to torture through the acquiescence or willful blindness
of a public official.4 See Aldana-Ramos v. Holder, 757 F.3d 9, 19
(1st Cir. 2014) ("A petitioner seeking CAT protection must show
'it is more likely than not' that he would be subject to torture
'by or with the acquiescence of a government official.'") (quoting
Nako v. Holder, 611 F.3d 45, 50 (1st Cir. 2010)).
Aguilon-Lopez has not presented any discrete evidence in
support of his claim and instead relies on generalized State
Department country conditions reports. "Although such reports are
sometimes helpful to an alien's claim, their generic nature is
such that they are rarely dispositive." Mendez-Barrera, 602 F.3d
at 28. Such is the case here: while the submitted reports clearly
show that gang activity in Guatemala is a serious problem, they do
not compel a conclusion that the Guatemalan government is a mere
4 We bypass the government's argument that Aguilon-Lopez has
waived the CAT issue because his CAT claim fails in any event.
See Vega-Ayala, 833 F.3d at 39.
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bystander to gang violence or that it would acquiesce or turn a
blind eye to Aguilon-Lopez's possible torture.
Aguilon-Lopez's own testimony that the police "can't do
anything about . . . gangsters" leads to the same conclusion:
though Guatemalan authorities may be mired in the arduous task of
containing gang violence, we struggle to see how the proffered
evidence supports, let alone compels, a conclusion contrary to
that of the agency. See Granada-Rubio, 814 F.3d at 40 (affirming
CAT denial even though country reports showed that the government
had not adequately dealt with complaints of torture and "cruel,
inhumane, or degrading treatment or punishment perpetrated by
public officials"). Given these deficiencies, we hold that
substantial evidence supports the BIA's rejection of his CAT claim.
IV. Conclusion
For the reasons stated above, we deny the petition for
review.
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