Alejandro Diaz Gutierrez v. Attorney General United States , 576 F. App'x 81 ( 2014 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 14-1727
___________
ALEJANDRO DIAZ GUTIERREZ,
Petitioner
v.
ATTORNEY GENERAL UNITED STATES OF AMERICA,
Respondent
____________________________________
On Petition for Review of an Order of the
Board of Immigration Appeals
(Agency No. A095-820-950)
Immigration Judge: Honorable Margaret R. Reichenberg
____________________________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
August 7, 2014
Before: FISHER, VANASKIE and ALDISERT, Circuit Judges
(Opinion filed: August 12, 2014)
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OPINION
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PER CURIAM
Pro se petitioner Alejandro Gutierrez petitions for review of a final order of
removal issued by the Board of Immigration Appeals (BIA). For the reasons detailed
below, we will deny the petition for review.
Gutierrez is a citizen of Mexico. He entered the United States in September 1988
(when he was 16), and overstayed his tourist visa. In December 2001, he was convicted
of simple assault in violation of N.J. Stat. Ann. § 2C:12-1(a)(1), and the Department of
Homeland Security (DHS) charged him with being removable as an alien who had been
convicted of an aggravated felony, see 8 U.S.C. § 1227(a)(2)(A)(iii), and who had
remained in the United States longer than permitted, see § 1227(a)(1)(B). Gutierrez
failed to appear for his removal hearing, and in June 2004, was ordered removed in
absentia. He was removed to Mexico on or about February 8, 2005, but apparently
immediately returned to the United States. In 2007, he was arrested, charged, and
convicted of illegal reentry, and in June 2009, he was convicted of forgery. (He testified
at his hearing in this case that he has been arrested more than 17 times.)
On October 3, 2012, DHS instituted the proceedings leading to the instant case,
issuing a notice of intent to reinstate the 2004 removal order. An asylum officer
conducted a reasonable-fear determination and, finding that Gutierrez did possess a
reasonable fear, transmitted the case to an Immigration Judge (IJ) for a withholding-only
proceeding. See 8 C.F.R. § 1208.31(e). Gutierrez, through counsel, then applied for
withholding of removal and relief under the Convention Against Torture (CAT). Before
an IJ, he testified that he feared returning to Mexico for several reasons. First, he
testified that his uncle had sexually abused him in Mexico over many years. Second, he
is gay, and stated that he had suffered a variety of mistreatment — ranging from
generalized harassment to an episode in which a police officer asked him to perform oral
sex, and when he refused, the officer punched him in the eye — due to his sexuality.
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Third, he said that after he came to the United States, a gang called the Zetas had killed
his estranged father for stealing their money, and, through friends of Gutierrez’s mother,
conveyed threats to him. Fourth, he has HIV/AIDS, and is concerned that he will not
able to receive treatment in Mexico.
The IJ denied all relief to Gutierrez, concluding that he had failed to testify
credibly, and, alternatively, that he failed to satisfy the respective burden of proofs for
withholding of removal and CAT relief. Gutierrez appealed to the BIA, which dismissed
the appeal. The BIA concluded that even assuming Gutierrez had testified credibly, the
IJ had correctly concluded that he was not entitled to relief, for reasons discussed in more
detail below. Gutierrez then filed a timely petition for review in this Court. He also filed
a motion for stay of removal. We denied that motion, and on May 27, 2014, Gutierrez
was removed to Mexico.
We have jurisdiction pursuant to 8 U.S.C. § 1252. See also Bejar v. Ashcroft, 324
F.3d 127, 132 (3d Cir. 2003) (“an alien’s removal from the United States does not divest
a federal court of appeals from considering the claims raised in a petition for review”).
Our review is of the BIA’s decision, although we also review the IJ’s decision to the
extent that the BIA adopted or deferred to the IJ’s analysis. See Zhang v. Gonzales, 405
F.3d 150, 155 (3d Cir. 2005). We must uphold the agency’s factual findings if they are
“supported by reasonable, substantial and probative evidence on the record considered as
a whole.” Kayembe v. Ashcroft, 334 F.3d 231, 234 (3d Cir. 2003). We will reverse a
finding of fact only if “any reasonable adjudicator would be compelled to conclude to the
contrary.” § 1252(b)(4)(B).
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Gutierrez first contends that the BIA erred in denying his withholding-of-removal
application. To qualify for withholding relief, an alien can show past persecution “on
account of” a protected ground, in which case a rebuttable presumption of future
persecution applies. Garcia v. Att’y Gen., 665 F.3d 496, 505 (3d Cir. 2011). If the alien
cannot show past persecution, he or she can still prevail by showing future persecution —
that is, that “there is a clear probability that the alien’s life or freedom would be
threatened upon her removal to a particular country.” Id. (quotation marks omitted).
Here, the BIA concluded that Gutierrez’s claim foundered, primarily, on his
failure to show that the harm he suffered was on account of his homosexuality (or any
other protected ground). See generally In re Toboso-Alfonso, 20 I. & N. Dec. 819, 822-
23 (BIA 1990) (recognizing that an individual can be a member of a “particular social
group” based on homosexuality). More specifically, the BIA ruled that Gutierrez had
failed to present adequate evidence linking the harm he suffered at the hands of his uncle
and the police officer to his sexual orientation.
This conclusion is supported by substantial evidence. See Valdiviezo-Galdamez
v. Att’y Gen., 502 F.3d 285, 290 (3d Cir. 2007) (applying substantial-evidence standard
to this issue). During his hearing, Gutierrez testified that he did not know why his uncle
abused him, and simply made no effort to show that his homosexuality represented “one
central reason” for his uncle’s conduct. Ndayshimiye v. Att’y Gen., 557 F.3d 124, 129
(3d Cir. 2009). Similarly, while he testified that a police officer had asked him to
perform a sex act and responded violently when Gutierrez demurred, he did not present
any evidence (beyond his conclusory allegations) connecting the officer’s behavior to his
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homosexuality. Cf. Ayala v. Att’y Gen., 605 F.3d 941, 950 (11th Cir. 2010) (granting
relief where alien “testified that the police officers assaulted him outside of a gay
nightclub and told him to shut up because he was queer and they could apply the
vagrancy laws and they could incarcerate him or plant drugs in his house and that was all
as a result of being queer” (quotation marks, alterations omitted)). The burden was on
Gutierrez to present evidence showing his attackers’ motives, see Ndayshimiye, 557 F.3d
at 131, and given that he presented no evidence beyond his bald conclusions on this topic,
“[t]here is no evidence in the record to compel a reasonable factfinder to adopt
[Gutierrez’s] allegation that he would not have been targeted had he not been
[homosexual],” Shehu v. Att’y Gen., 482 F.3d 652, 657 (3d Cir. 2007). Thus, while
Gutierrez has had some unfortunate experiences, he cannot show that the BIA erred in
concluding that these incidents could not sustain his withholding-of-removal claim.
Beyond these two events, Gutierrez testified that unidentified people would curse
at him, throw things at him, and even punch him. The BIA concluded that these incidents
did not rise to the level of persecution, and substantial evidence supports that conclusion.
This Court has upheld agency conclusions that persecution cannot be shown by minor
assaults that do not require medical care, see Jarbough v. Att’y Gen., 483 F.3d 184, 191
(3d Cir. 2007), or unfulfilled threats, see Li v. Att’y Gen., 400 F.3d 157, 164 (3d Cir.
2005), and the BIA’s ruling here is consistent with those holdings. Thus, Gutierrez
cannot show that the BIA erred in finding that he did not suffer past persecution.
Gutierrez’s future-persecution claim fares no better. To show future persecution,
an alien must establish either that (1) he would be individually singled out for
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persecution, or (2) there is a pattern or practice in the home country of persecuting
similarly situated people. Lie v. Ashcroft, 396 F.3d 530, 536 (3d Cir. 2005).
The BIA first concluded that Gutierrez had failed to show that there was a pattern
or practice of persecuting homosexuals in Mexico, and that, in fact, “[t]he country
conditions evidence reflects the Mexican government and society’s increasing acceptance
of gay communities.” This represents a reasonable assessment of the country-conditions
evidence in the record. For instance, the State Department reports state that conditions
are improving for gay and lesbian persons, and that there is a national law prohibiting
discrimination on the basis of sexual orientation. Other record evidence reveals that gay
marriage is legal in Mexico. Accordingly, substantial evidence supports the BIA’s
rejection of this theory. See Castro-Martinez v. Holder, 674 F.3d 1073, 1082 (9th Cir.
2011) (so holding in similar case).
The remainder of Gutierrez’s claims of future persecution are similarly unavailing.
The BIA correctly concluded that while Gutierrez claimed that he would be unable to
afford treatment for HIV/AIDS in Mexico, he presented no evidence in support of that
claim. Cf. Liao v. U.S. Dep’t of Justice, 293 F.3d 61, 69-70 (2d Cir. 2002) (petitioner
failed to demonstrate that fines imposed on him amounted to past economic persecution
because he introduced no evidence about his income, net worth, or other financial
circumstances at the time the fines were imposed). Indeed, as the Ninth Circuit has held
in rejecting a nearly identical claim, “[g]eneralized economic disadvantage does not rise
to the level of persecution.” Castro-Martinez, 674 F.3d at 1082; see also Ixtlilco–Morales
v. Keisler, 507 F.3d 651, 655-56 (8th Cir. 2007). Moreover, Gutierrez presented no
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evidence whatsoever that his uncle continued to pose any threat to him, or that the Zetas
drug gang had any current interest in him. The BIA fairly construed the record on these
matters, particularly in light of Gutierrez’s failure to develop these claims in any
meaningful way. Accordingly, substantial evidence supports the BIA’s denial of
Gutierrez’s withholding-of-removal claim.
The same conclusion applies to Gutierrez’s CAT claim. As the BIA ruled,
Gutierrez showed neither that he would more likely than not be tortured nor that a public
official would acquiesce in or turn a blind eye toward this putative torture. See generally
8 C.F.R. § 1208.16(c)(2). Before the BIA, the only argument Gutierrez made in support
of this claim was that the country-conditions evidence established that he would be
tortured; however, as discussed above, the evidence in the record does not support that
assertion. Cf. Tun v. INS, 445 F.3d 554, 567 (2d Cir. 2006) (holding that “torture
requires proof of something more severe than the kind of treatment that would suffice to
prove persecution”). Therefore, we discern no error in the BIA’s disposition of
Gutierrez’s CAT claim.
Accordingly, we will deny the petition for review.
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