Ruiz Varela v. Barr ( 2020 )

United States Court of Appeals
For the First Circuit
No. 19-1994
JOSE CECILIO RUIZ-VARELA,
Petitioner,
v.
WILLIAM P. BARR,
United States Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge,
Kayatta, Circuit Judge,
Casper, District Judge.
Randy Olen for petitioner.
Julia J. Tyler, Trial Attorney, Office of Immigration
Litigation, with whom Ethan P. Davis, Acting Assistant Attorney
General, Civil Division, and Jennifer P. Levings, Senior
Litigation Counsel, were on brief for respondent.
December 23, 2020

Of the District of Massachusetts, sitting by designation.
Casper, District Judge. Petitioner Jose Cecilio Ruiz-Varela
("Ruiz"), a native and citizen of Honduras, seeks review of a final
order of removal issued by the Board of Immigration Appeals
("BIA"), dismissing his appeal from the decision of an immigration
judge ("IJ") denying his request for withholding of removal under
Section 241(b)(3) of the Immigration and Nationality Act ("INA"),
8 U.S.C. § 1231(b)(3). Having concluded that there was substantial
evidence to support the BIA's decision to deny Ruiz's application
for withholding of removal where he failed to establish the
required nexus between his treatment by the police and his
membership in a particular social group (here, his immediate
family), the Court denies the petition for review.
I.
Ruiz initially entered the United States in 2001. Agents of
Immigration and Customs Enforcement ("ICE") encountered him here
in 2009 and because he was in the country illegally, he was placed
in removal proceedings. As a result, Ruiz accepted voluntary
departure and returned to Honduras in 2009.
Once back in his hometown in Honduras, Ruiz worked in
construction, but often worked at his father's pool hall. Although
they had other family members in the area, the only family members
to work there were Ruiz and his father. His father's
establishment, located in the front part of the residence Ruiz
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shared with his parents, was very successful and was frequented by
neighbors, friends, family and members of the National Police.
Sometime after his return, members of the National Police
made extortionate demands for money in exchange for "protection."
Neither Ruiz nor his father thought his father should pay these
demands and they were not going to pay even after the threats
continued. Even after the police at some point threatened to kill
his son, Ruiz's father refused the demands and told the officers
that he was going to report them and expose their scheme.
Sometime after this response, in late 2011, Ruiz was returning
home at night with a friend on the friend's motorcycle from a party
nearby. They came upon a roadblock guarded by military and local
police. As they proceeded through the roadblock without stopping,
Ruiz recognized some of the officers there as those who had
attempted the extortion. According to Ruiz, these officers saw
them and immediately opened fire at them, firing approximately six
shots. In response, his friend sped up on the motorcycle and the
officers then fired fifty to seventy more rounds at the two until
they fell off the motorcycle. While on the ground, officers began
to hit and kick them, pointing their weapons at them, ceasing to
do so eventually as bystanders gathered and protested. As a
result, Ruiz suffered a gunshot wound to his foot and injuries to
his ribs, chest and shoulder and was hospitalized. Although Ruiz
was initially charged, as the police alleged the two men had been
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armed and had shot at them, the charges against him were dropped.
The local government investigated the incident, and as a result
some changes were made within the police, including the removal of
many of the officers from their posts. Ruiz claimed, however,
that these developments stirred a strong reprisal from the police
against him and his father. Over the course of the next year, the
officers continued with their threats, but the pool hall remained
open, operated solely by his father during Ruiz's recuperation.
On one occasion, two officers came to his father's business and
one pointed out Ruiz to the other and said "look, he is one of the
ones I told you about." Ruiz also claimed that he was followed by
police and that officers had told the owners of a gasoline station
near the checkpoint that Ruiz and his friend had tried to rob their
business, prompting the owners to threaten to kill them.
In November 2012, approximately a year after the checkpoint
incident, Ruiz decided to leave his home country again for the
United States because of his fear of police reprisals. He entered
the United States illegally but did not come to the attention of
immigration authorities until after an arrest by the Smithfield,
Rhode Island Police in January 2019. On January 31, 2019, the
U.S. Department of Homeland Security ("DHS") filed a Notice to
Appear ("NTA") charging Ruiz with removability. In response, Ruiz
conceded removability, but sought withholding of removal under the
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Convention Against Torture and withholding of removal under INA
Section 241(b)(3).
After considering the testimony of Ruiz, the sole witness,
and the exhibits admitted, the IJ denied the petition for
withholding of removal on April 22, 2019. The IJ noted that he
had "significant concerns regarding [Ruiz's] credibility," but
given corroborative evidence including medical records reflecting
his hospitalization for a shooting, he would give Ruiz "the benefit
of the doubt" and "assume [he] was a credible witness." Even doing
so, the IJ concluded that Ruiz had failed to show the necessary
nexus between past persecution and any clear probability that his
life or freedom would be harmed in the future on a protected ground
under INA Section 241(b)(3). Although recognizing that being shot
by the police at the checkpoint would be a persecutory act, the IJ
concluded that the nexus to Ruiz's family status was missing where,
even as recounted by Ruiz, the cause of the police's conduct at
the checkpoint was not clear. The IJ noted the same deficiency as
to the later visit by two officers. The IJ recognized that family
members may constitute a particular social group for the purposes
of removal under Section 241(b)(3), but could not conclude "that
the evidence indicates that the police officers had animus against
[Ruiz] based on his biological ties." His father continued to
live in his hometown, running the same pool hall, and his mother
and siblings continued to live in the area without incident.
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Although Ruiz stressed that he was the only family member who
worked with his father in the pool hall, the IJ found that to be
an insufficient basis for claiming persecution based on family
membership. Instead, he concluded that "one central reason" Ruiz
may have been targeted was because of the extortion and demands,
but also because the police thought that Ruiz and his friend were
running the roadblock, neither of which was a protected ground.
Accordingly, the IJ concluded that Ruiz had failed to sustain his
burden of showing that he was targeted on account of family
membership, a protected ground.1
On September 5, 2019, the BIA affirmed the IJ's ruling. While
not reaching every issue in the case, the BIA agreed with the IJ
that Ruiz had not sustained his burden for withholding of removal
under INA Section 241(b)(3). In relevant part, the BIA agreed
that he had not established that his family membership was a
central reason for his claimed persecution by local police. On
this point, the BIA observed that while corrupt officers may have
attempted to extort money from him and his father, Ruiz had not
identified any evidence indicating a particular animus toward his
1The IJ made other findings rejecting Ruiz's challenge to the
service of the NTA, his claim for withholding of removal under
Section 241(b)(3) based upon political opinion, his argument that
the Honduran government was unwilling or unable to control his
persecutors, and Ruiz's petition for protection under CAT, all of
which Ruiz does not challenge in this appeal.
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family. Citing that his mother and siblings continued to live in
the same area without incident, the targeting of the two, the only
family members working at the business, suggests that they were
targeted for their wealth by the corrupt officers seeking
extortionate payments. Accordingly, the BIA affirmed the IJ's
decision denying withholding of removal.
Ruiz now brings this timely appeal of the BIA's denial of his
petition for withholding of removal under INA Section 241(b)(3).
II.
This Court reviews the BIA's legal conclusions de novo, but
applies the more deferential, substantial evidence standard to its
factual findings. Soeung v. Holder, 677 F.3d 484, 487 (1st Cir.
2012). The Court accepts the agency's factfinding if it is
"supported by reasonable, substantial, and probative evidence on
the record considered as a whole." Guzman v. INS, 327 F.3d 11, 15
(1st Cir. 2003) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481
(1992)). That is, we will not reverse unless, viewing the record
as a whole, "any reasonable adjudicator would be compelled to
conclude to the contrary." Ahmed v. Holder, 765 F.3d 96, 100 (1st
Cir. 2014) (quoting 8 U.S.C. § 1252(b)(4)(B)). As this Court has
recently noted, "judicial review typically focuses on the final
decision of the BIA." Loja-Tene v. Barr, 975 F.3d 58, 60 (1st
Cir. 2020). "But when the BIA embraces the decision of the IJ,
'merely add[ing] its gloss to the IJ's findings and conclusions,
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we treat the two decisions as one.'" Id. (quoting Murillo-Robles
v. Lynch, 839 F.3d 88, 91 (1st Cir. 2016)); see Piedrahita v.
Mukasey, 524 F.3d 142, 144 (1st Cir. 2008) (noting that when “the
BIA adopts the IJ's opinion and discusses some of the bases for
the IJ's decision, we have authority to review both the IJ's and
the BIA's opinions" (quoting Ouk v. Gonzales, 464 F.3d 108, 110
(1st Cir. 2006))). Accordingly, this Court does so here.
III.
The Court concludes that the BIA's finding that Ruiz failed
to show the requisite nexus between the persecution by the local
police and his family membership is supported by substantial
evidence. A petitioner is eligible for withholding of removal to
his home country if his "life or freedom 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). Specifically, the petitioner bears the
burden of showing that he suffered past persecution or, that in
the absence of past persecution, it is more likely than not that
he will be persecuted in the future "on account of" one of the
protected grounds. 8 C.F.R. § 1208.16(b); see Yong Gao v. Barr,
950 F.3d 147, 154 (1st Cir. 2020). One of the protected grounds
must be "at least 'one central reason' for his persecution." Tay-
Chan v. Holder, 699 F.3d 107, 111 (1st Cir. 2012) (citing 8
U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(C)). Here, Ruiz contends
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that the BIA erred in affirming the IJ's finding that he failed to
show that he faced persecution on account of his membership in a
particular social group, namely, his immediate family.
Social group membership, including membership in an immediate
family, may be grounds for withholding of removal under INA Section
241(b)(3) if the petitioner suffered or will more likely than not
suffer future persecution because of his or her membership. See
Aldana-Ramos v. Holder, 757 F.3d 9, 15 (1st Cir. 2014);
Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993). Such family
membership need not be the only reason for persecution, but it
must be a central reason for persecution, Aldana-Ramos, 757 F.3d
at 18, as the BIA recognized. Whether cast as the Ruiz-Varela
family (as the government contends is the only basis asserted by
Ruiz below) or as his father's son (which Ruiz has cast as
synonymous for the family relationship upon which he relies), Ruiz
fails to establish a nexus between the police persecution of him
and his family status. Villalta-Martinez v. Sessions, 882 F.3d
20, 24-25 (1st Cir. 2018) (concluding that the record did not
compel a contrary outcome where the BIA found insufficient evidence
that extortion was motivated by petitioner's relationship with her
child's father); Loja-Tene, 975 F.3d at 61 (noting that "a
reviewing court must uphold the agency's factbound determinations
as long as those determinations are supported by substantial
evidence in the record, viewed as a whole").
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Ruiz's mother and siblings continued to reside in the area
without incident.2 Although they shared the familial connection,
only Ruiz worked with his father in the pool hall, was often
present when the police made their (unsuccessful) demands and
shared his father's belief that protection money should not be
paid to the police. Even if the police only extorted his father,
there was still substantial evidence to support the BIA's finding
regarding lack of the requisite nexus. That the local police had
other ready, familial targets who lived as close as the residence
attached to the pool hall (i.e., Ruiz's mother) to threaten to
pressure Ruiz's father into submitting to their demands and did
not do so, supports that his status as a family member was not a
central reason for the persecution of Ruiz. Loja-Tene, 975 F.3d
at 62 (finding substantial evidence for conclusion that family
ties did not motivate persecution where persecutor made threats to
petitioner and her father, but sisters remained in the country
2
Although the record is silent about whether the local police
knew that Ruiz's father had family in the area other than Ruiz, it
is not a reasonable inference from this record that they did not.
Mediouni v. INS, 314 F.3d 24, 27 (1st Cir. 2002) (noting that BIA
findings and conclusions must be "based on inferences or
presumptions that are . . . reasonably grounded in the record,
viewed as a whole . . ." (quoting Cordero-Trejo v. INS, 40 F.3d
482, 487 (1st Cir. 1994))). The record reflects that Ruiz's mother
lived with Ruiz and his father behind the pool hall, his siblings
lived nearby, both his family and the local police frequented the
pool hall and Ruiz noted that his family members were at the
hospital, along with the police, in the wake of the roadblock
incident.
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without having been subjected to similar threats). Moreover, as
the IJ noted and the record otherwise reflects, it is not clear
that the police conduct when Ruiz and his friend went through the
nighttime checkpoint, or when an officer later pointed out Ruiz to
another officer, was because of the refusal to submit to the
officers' extortionate demands or, rather, because Ruiz had run a
roadblock. Even if Ruiz and his father believed it to be because
of his family relationship, we cannot say that the record compels
a different outcome than the one that the BIA reached here. Jianli
Chen v. Holder, 703 F.3d 17, 21 (1st Cir. 2012).
For the aforementioned reasons, the petition for review is
denied.
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