Ruiz Ruiz v. Holder , 374 F. App'x 170 ( 2010 )

09-1158-ag(L), 10-0510-ag(CON)
Ruiz Ruiz v. Holder
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT . CITATION TO A SUMMARY ORDER FILED
ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT ’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT , A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER ”). A PARTY CITING A SUMMARY ORDER MUST
SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL .
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 21 st day of April, two thousand ten.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 RALPH K. WINTER,
9 JOHN M. WALKER, JR.,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 Juan Jairo Ruiz Ruiz,
14 Petitioner,
15
16 -v.- 09-1158-ag(L)
17 10-0510-ag(CON)
18
19 Eric H. Holder, United States Attorney
20 General,
21 Respondent.
22 - - - - - - - - - - - - - - - - - - - -X
23
24 FOR PETITIONER: GLENN L. FORMICA, Formica, P.C., New
25 Haven, CT.
26
27 FOR RESPONDENT: TERRI LEÓN-BENNER, Trial Attorney,
28 (Barry J. Pettinato, Assistant
1
1 Director), Office of Immigration
2 Litigation, (Tony West, Assistant
3 Attorney General), Civil Division,
4 U.S. Department of Justice,
5 Washington, DC.
6
7 UPON DUE CONSIDERATION of these consolidated petitions
8 for review of two Board of Immigration Appeals (“BIA”)
9 decisions, it is hereby ORDERED, ADJUDGED, AND DECREED, that
10 the petition for review in docket number 09-1158-ag(L) is
11 DENIED, and Respondent’s motion for summary disposition in
12 docket number 10-0510-ag(CON) is GRANTED.
13 Juan Jairo Ruiz Ruiz, a native and citizen of Colombia,
14 seeks review of: (1) a February 24, 2009 order of the BIA
15 denying his application for asylum, withholding of removal,
16 and relief under the Convention Against Torture (“CAT”)
17 (docket number 09-1158-ag(L)); and (2) a January 15, 2010
18 order of the BIA denying his motion to reopen his removal
19 proceedings (docket number 10-0510-ag(CON)). We assume the
20 parties’ familiarity with the underlying facts and the
21 case’s procedural history.
22 I. Docket Number 09-1158-ag(L)
23 In the circumstances of this case, we review the IJ’s
24 decision as modified by the BIA decision. See Yang v. U.S.
25 Dep’t of Justice, 426 F.3d 520, 522 (2d Cir. 2005). The
26 applicable standards of review are well-established. 8
2
1 U.S.C. § 1252(b)(4)(B); Bah v. Mukasey, 529 F.3d 99, 110 (2d
2 Cir. 2008).
3 Petitioner argues that the Revolutionary Armed Forces
4 of Colombia (“FARC”) targeted him in part based on his
5 imputed political opinion and his membership in the social
6 group of “wealthy business owners in Colombia opposed to
7 FARC activity.” His family owns (or owned) a construction
8 business. The agency denied the application for relief
9 based on its finding that he did not establish a nexus
10 between the alleged harm he suffered and an imputed
11 political opinion. See 8 U.S.C. § 1101(a)(42);
12 8 C.F.R. § 1208.16(b)(1).
13 The agency reasonably found that Petitioner failed to
14 demonstrate that the FARC was motivated, even in part, by
15 his actual or imputed political opinion. Cf. Uwais v. U.S.
16 Attorney Gen., 478 F.3d 513, 517-18 (2d Cir. 2007); Zhang v.
17 Gonzales, 426 F.3d 540, 545 (2d Cir. 2005). Petitioner
18 testified that the FARC wanted him to join their ranks, but
19 he explained that the FARC was interested in him due to the
20 equipment owned by the family business. The desire of the
21 FARC to “fill their ranks in order to carry on their war
22 against the government and pursue their political goals
23 . . . does not render the forced recruitment ‘persecution on
3
1 account of . . . political opinion.’” INS v. Elias-
2 Zacarias, 502 U.S. 478, 482 (1992).
3 Petitioner also challenges the agency’s finding that he
4 failed to establish his membership in a cognizable social
5 group of “wealthy business owners in Colombia opposed to
6 FARC activity.” This challenge fails as well. In Ucelo-
7 Gomez v. Mukasey, 509 F.3d 70 (2d Cir. 2007) (per curiam),
8 we found reasonable the BIA’s precedential decision in A-M-E
9 & J-G-U-, 24 I. & N. Dec. 69 (2007): “[W]ealthy Guatemalans”
10 do not constitute a particular social group because “[t]he
11 characteristic of wealth or affluence is simply too
12 subjective, inchoate, and variable to provide the sole basis
13 for membership in a particular social group,” id. at 76.
14 Ucelo-Gomez, 509 F.3d at 72-74. Here, the added element of
15 business ownership is insufficient to differentiate
16 Petitioner’s putative social group from the “wealthy
17 Guatemalan” social group in Ucelo-Gomez. Moreover, business
18 ownership is an attribute with “no disadvantage other than
19 purported visibility to criminals,” so that “the scales are
20 tipped away from considering those people a ‘particular
21 social group.’” Id. at 73.
22 Because the agency did not err in finding that
23 Petitioner failed to demonstrate a nexus between any harm he
24 suffered or any future harm he feared and a protected
4
1 ground, we do not consider whether he established past
2 persecution or a well-founded fear of future persecution.
3 As to CAT relief, Petitioner argues that he established
4 eligibility by showing the Colombian government’s
5 acquiescence to the FARC’s actions. However, State
6 Department Country Reports included in the record indicate
7 that the Colombian government is engaged in an ongoing
8 conflict with the FARC; the government’s inability to defeat
9 the FARC outright is not evidence of willful blindness or
10 acquiescence to FARC activity. See Khouzam v. Ashcroft, 361
11 F.3d 161, 171 (2d Cir. 2004). Accordingly, the agency
12 reasonably denied Petitioner’s application for CAT relief.
13 II. Docket Number 10-0510-ag(CON)
14 Summary disposition of Petitioner’s petition for review
15 of the BIA’s denial of his motion to reopen is appropriate
16 because he presents no arguably meritorious issue for
17 consideration. See Pillay v. INS, 45 F.3d 14, 17 (2d Cir.
18 1995). Petitioner’s motion to reopen before the BIA is
19 indisputably time-barred, having been filed almost eleven
20 months after the BIA’s order dismissing his appeal. See
21 8 C.F.R. § 1003.2(c)(2) (requiring an alien to file a motion
22 to reopen “no later than 90 days after the date on which the
23 final administrative decision was rendered in the proceeding
24 sought to be reopened”). Petitioner sought reopening in
5
1 order to apply for adjustment of status based on his
2 marriage to a U.S. citizen. However, as Respondent argues,
3 this circumstance does not excuse the untimeliness of his
4 motion. See Matter of Yauri, 25 I. & N. Dec. 103, 105 (BIA
5 2009) (emphasizing that untimely motions to reopen to pursue
6 an application for adjustment of status do not fall within
7 any of the exceptions to the time limits); cf. 8 U.S.C.
8 § 1229a(c)(7)(C)(ii). Therefore, Petitioner was necessarily
9 asking the BIA to exercise its authority sua sponte. See
10 Mahmood v. Holder, 570 F.3d 466, 469 (2d Cir. 2009)
11 (“Because Mahmood’s untimely motion to reopen was not
12 excused by any regulatory exception, his motion to reopen
13 could only be considered upon exercise of the Agency’s sua
14 sponte authority.”). Petitioner’s argument to the contrary
15 notwithstanding, we lack jurisdiction to consider any
16 challenge to the BIA’s “entirely discretionary” decision not
17 to reopen his proceedings sua sponte. See Ali v. Gonzales,
18 448 F.3d 515, 518 (2d Cir. 2006) (per curiam). The Supreme
19 Court’s recent decision in Kucana v. Holder is not to the
20 contrary. See Kucana v. Holder, 130 S. Ct. 827, 839 n.18
21 (2010) (“We express no opinion on whether federal courts may
22 review the Board’s decision not to reopen removal
23 proceedings sua sponte.”). Kucana did not address the basis
24 for our holding in Ali.
6
1 For the foregoing reasons, the petition for review in
2 docket number 09-1158-ag(L) is DENIED. Respondent’s motion
3 for summary disposition in docket number 10-0510-ag(CON) is
4 GRANTED. As we have completed our review, any stay of
5 removal that the Court previously granted is VACATED, and
6 any pending motion for a stay of removal is DISMISSED as
7 moot. Any pending request for oral argument is DENIED in
8 accordance with Federal Rule of Appellate Procedure
9 34(a)(2), and Second Circuit Local Rule 34.1(b).
10
11
12 FOR THE COURT:
13 CATHERINE O’HAGAN WOLFE, CLERK
14
7