Carranza-Vargas v. Holder ( 2012 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 11-2263
EDWIN CARRANZA-VARGAS,
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,
Torruella and Boudin, Circuit Judges.
Joshua L. Goldstein on brief for petitioner.
Brendan P. Hogan, Office of Immigration Litigation, Stuart F.
Delery, Acting Assistant Attorney General, Civil Division, and
Cindy S. Ferrier, Assistant Director, on brief for respondent.
August 30, 2012
LYNCH, Chief Judge. Edwin Carranza-Vargas petitions for
review of a September 30, 2011, decision by the Board of
Immigration Appeals (BIA), which affirmed the decision of an
Immigration Judge (IJ) denying his application for asylum,
withholding of removal, and relief under the Convention Against
Torture (CAT). Relief was denied because Carranza-Vargas failed to
establish that attempts by gangs to extort money from him were even
partially motivated by a desire to persecute him on account of a
protected ground, and he did not qualify for CAT relief.
Carranza-Vargas bases his claim for asylum and
withholding of removal on the argument that he was subjected to
persecution on account of his membership in the particular social
group of former police and army members who fear harm by gangs. He
also argues that he is protected under the CAT because he will be
tortured by gangs upon his return to El Salvador. The agency's
determinations are supported by substantial evidence, and we deny
the petition for review.
I.
Carranza-Vargas is a native and citizen of El Salvador
who unlawfully entered the United States on or about December 29,
2006. On February 12, 2007, the Department of Homeland Security
began removal proceedings by filing a Notice to Appear with the
immigration court, charging Carranza-Vargas as an alien present in
the United States without having been admitted or paroled in
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violation of 8 U.S.C. § 1182(a)(6)(A)(i). Carranza-Vargas admitted
the allegations, conceded removability, and applied for relief in
the form of asylum, withholding of removal, and protection under
the CAT.
Carranza-Vargas's merits hearing was held before the IJ
on November 25, 2009. He testified that between 1981 and 1983 he
served in El Salvador's military; later he served in the national
police force in various capacities. As part of his duties,
Carranza-Vargas arrested gang members, who, in retaliation,
threatened him. During his time on the police force, gang members
threatened to physically attack Carranza-Vargas unless he paid them
$25 each month. Carranza-Vargas chose to pay and was not
assaulted. Gangs left him alone when he carried his service
pistol.
After leaving the police force in 1997, Carranza-Vargas
held jobs as a private security guard. Gang members continued to
routinely stop Carranza-Vargas to extract money from him and
continued to demand $25 monthly payments through 2006. Carranza-
Vargas stated that the gangs also demanded money from other
citizens who lived in the area, including almost anyone who made
money, in accordance with the income those citizens earned.
In 2003, approximately six years after leaving the police
force, and more than twenty years after leaving the military,
Carranza-Vargas was again asked to pay by gangs. Knowing that
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Carranza-Vargas was carrying rent money, the gang members waited
for him. Because he had refused to pay the gang members on an
earlier date, the gang members assaulted him. Carranza-Vargas was
severely injured and spent eighteen days in the hospital.
Three years later, in 2006, gang members attacked him
again. In this incident, Carranza-Vargas refused to give the four
gang members who confronted him any money, apparently because he
did not have the $10 demanded. The gang members beat Carranza-
Vargas and stole his bicycle and pistol. They made no reference to
his status as an ex-police officer or ex-military member.
On cross-examination, Carranza-Vargas testified that the
gangs would want to harm him if he returned to El Salvador because
"they almost killed me once[] [a]nd if I come from this country
carrying money, they'll try again."
The IJ found that Carranza-Vargas's testimony was
credible, but that Carranza-Vargas did not establish that he was
eligible for asylum because he did not suffer past persecution on
account of a protected ground. The IJ found that the threats made
against Carranza-Vargas while on the police force did not amount to
persecution. The IJ also found that the extortions and assaults of
Carranza-Vargas occurred on account of the gang members' desire to
exploit and rob generally. The IJ also found that Carranza-Vargas
did not establish a well-founded fear of future persecution because
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this claim rested on the same facts as his claim of past
persecution.
Because Carranza-Vargas did not establish eligibility for
asylum, the IJ found that Carranza-Vargas also did not meet the
higher standard required for withholding of removal. Finally, the
IJ found that the CAT claim failed because Carranza-Vargas did not
establish that he would be subjected to torture at the instigation
or with the consent or acquiescence of a public official or someone
acting in an official capacity.
Carranza-Vargas appealed the IJ's decision to the BIA,
which dismissed the appeal on September 30, 2011. The BIA reasoned
that Carranza-Vargas "failed to establish that the attempts to
extort money from him were even partially motivated by a desire to
persecute him for a ground enumerated in the Act -- much less that
such a motivation constituted or would constitute 'one central
reason' for the gang members' actions."1 The BIA rejected the CAT
claim because Carranza-Vargas did not "present[] sufficient
evidence establishing that it is more likely than not that he would
be subject to torture upon return to El Salvador at the instigation
or with the acquiescence . . . of a government official."
On October 27, 2011, Carranza-Vargas petitioned this
1
Because the BIA reached its decision on the ground that
Carranza-Vargas was not persecuted on account of his status as an
ex-police officer or ex-military member, we need not reach the
question of whether such proposed social groups are legally
cognizable.
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court for review of the BIA's decision on the grounds that the
record compels us to conclude that Carranza-Vargas's prior
membership in the national police was at least a central reason for
why gang members attacked him and that Carranza-Vargas should be
granted relief under the CAT.
II.
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). Because the
question of whether persecution is "on account" of a protected
ground is generally an issue of fact, Sompotan v. Mukasey, 533 F.3d
63, 68 (1st Cir. 2008), we review under the substantial evidence
standard, id. To reverse the agency's decision, we must "find that
the evidence not only supports th[e] conclusion [that the applicant
is eligible for relief], but compels it." INS v. Elias-Zacarias,
502 U.S. 478, 481 n.1 (1992). Where the BIA affirms the IJ but
includes its own discussion, we review both opinions. Nako v.
Holder, 611 F.3d 45, 48 (1st Cir. 2010).
To establish eligibility for asylum, an alien must
demonstrate that he has been subjected to past persecution or has
a well-founded fear of future persecution based on race, religion,
national origin, political opinion, or membership in a particular
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social group. 8 U.S.C. § 1158(b)(1); id. § 1101(a)(42). For
applications for asylum submitted after May 11, 2005, like
Carranza-Vargas's,2 one of the statutorily protected grounds must
be "at least one central reason" for the persecution. Id.
§ 1158(b)(1)(B)(i). A showing of past persecution with a
sufficient nexus to a statutorily protected ground creates a
rebuttable presumption of future persecution. Orelien v. Gonzales,
467 F.3d 67, 71 (1st Cir. 2006).
The agency's finding that Carranza-Vargas was not
persecuted on account of membership in the proposed social group of
former police officers or soldiers, but that the attacks were
economically motivated, is supported by substantial evidence.
The BIA's finding is consistent with the observation we
have made that "greed -- not social group membership -- is the
apparent trigger" for much gang violence. Arévalo-Girón v. Holder,
667 F.3d 79, 83 (1st Cir. 2012). Carranza-Vargas's own testimony
was that gangs demanded money from all citizens in accordance with
what they earned. When he paid his monthly fee, gang members did
not assault him. Indeed, Carranza-Vargas provided no evidence that
his being a member of the police force was a basis for the attacks
on him.
2
The REAL ID Act of 2005 is applicable to Carranza-Vargas
because he submitted his application after May 11, 2005, the
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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The 2003 attack occurred when gang members waited for him
because they knew he had rent money on him and Carranza-Vargas had
refused to hand over money. In the 2006 attack, Carranza-Vargas
admitted that he was beaten because he did not have the $10 that
the gang wanted. Finally, Carranza-Vargas testified that the basis
of his fear that gang members would try to kill him upon his return
to El Salvador was that the gangs would believe he was carrying
money from the United States. Thus, the agency's finding that
Carranza-Vargas is not eligible for asylum is supported by
substantial evidence.
Because withholding of removal requires satisfying a more
stringent standard than that which governs asylum, Carranza-Vargas
is necessarily ineligible for withholding of removal. See Stanciu
v. Holder, 659 F.3d 203, 208 (1st Cir. 2011).
Carranza-Vargas also argues that the agency erred in
finding him ineligible for protection under the CAT. A necessary
element for such relief is likelihood of torture at the instigation
of or with the consent or acquiescence of a public official. Elien
v. Ashcroft, 364 F.3d 392, 398 (1st Cir. 2004) (citing 8 C.F.R.
§ 208.18(a)(1)). There is no evidence that the government
instigated or acquiesced to the attacks on Carranza-Vargas. The
State Department reports of widespread gang violence in the country
do not compel a contrary conclusion. See Mendez-Barrera v. Holder,
602 F.3d 21, 28 (1st Cir. 2010). In fact, Carranza-Vargas's own
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argument, that he was persecuted by gangs on account of being a
former police officer and military member, is inconsistent with
government acquiescence.
The petition is denied.
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