Sabino Dealmonte-Castillo v. Jefferson Sessions, III ( 2018 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 18a0439n.06
No. 18-3032
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT FILED
Aug 24, 2018
SABINO DEALMONTE-CASTILLO, ) DEBORAH S. HUNT, Clerk
)
Petitioner, )
)
v. ) ON PETITION FOR REVIEW
) FROM THE UNITED STATES
JEFFERSON B. SESSIONS III, U.S. Attorney ) BOARD OF IMMIGRATION
General, ) APPEALS
)
Respondent. )
)
BEFORE: SILER, MOORE, and ROGERS, Circuit Judges.
ROGERS, Circuit Judge. Sabino Dealmonte-Castillo, a citizen of Mexico, petitions for
review of a decision of the Board of Immigration Appeals denying his claim for asylum,
withholding of removal, and protection under the Convention Against Torture. Dealmonte-
Castillo primarily contends that the Board erred in affirming a finding by the Immigration Judge
that his testimony to that judge was not credible. Even if were we to agree with Dealmonte-Castillo
in this respect, however, his petition faces a more fundamental deficiency. The relief that he seeks
requires him to prove both membership in a distinct social group and a fear of persecution because
of his membership in that social group. But we have repeatedly determined that Dealmonte-
Castillo’s claimed social group—Mexicans who have spent time in the United States—does not
so qualify as a distinct social group for purposes of a claim under the Immigration and Nationality
Act, and substantial evidence supports the Board’s determination that Dealmonte-Castillo was not
No. 18-3032, Dealmonte-Castillo v. Sessions
persecuted based on this status. Because Dealmonte-Castillo’s claims necessarily fail along with
his inability to make this required showing, our analysis ends at this first step.
Dealmonte-Castillo is a citizen of Mexico who first illegally entered the United States in
2003. He was discovered while in the United States because he had claimed the identity of another
person in the United States, been caught using that fake identity, and been convicted of possessing
a fake passport and a fake social security card. Dealmonte-Castillo agreed to voluntary removal
to Mexico in 2012. Dealmonte-Castillo then re-entered the United States in 2013, was
apprehended, and the removal proceeding at issue here commenced.
During proceedings before an Immigration Judge (“IJ”), Dealmonte-Castillo testified that,
during his 2013 return to Matamoros, Mexico, he had been approached by members of the Golf
Cartel, who requested that he work for them, an invitation that he declined. Dealmonte-Castillo
claimed that the gang members approached him because “he could manage dollars, had lived in
the United States,” and, the cartel thought that “he could mix in with American culture.”
Dealmonte-Castillo alleges that Mexicans who have spent time in the United States, so-called
“pochos,” represent a distinctive subset in Mexican society by virtue of their dress, diet, and accent.
Dealmonte-Castillo also contends that the Golf Cartel was aware of his status as a “pocho” and
sought to make use of him. He testified that, after his refusal to work for them, he was kidnapped
by gang members for a period of about two weeks, during which time he was threatened with harm
if he did not agree to work for the gang. Dealmonte-Castillo told the IJ that he then escaped and
immediately fled to the United States.
The IJ hearing this story declined to credit Dealmonte-Castillo’s testimony, however. The
IJ noted inconsistencies in Dealmonte-Castillo’s testimony with regard to his identity-theft
offenses, acknowledged the fact that Dealmonte-Castillo had been convicted of multiple fraud
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related offenses, and concluded that, “[g]iven respondent’s propensity for fraud . . . he has not
offered credible testimony in these proceedings.” Although recognizing that an adverse credibility
finding was dispositive of Dealmonte-Castillo’s case, the IJ additionally concluded that
Dealmonte-Castillo’s proposed social group of Mexicans who have spent time in the United States
was not socially distinctive, and the persecution Dealmonte-Castillo alleged was related to the
skills he possessed rather than to his group status.
The Board of Immigration Appeals affirmed the IJ’s denial of Dealmonte-Castillo’s claims.
The BIA first rejected Dealmonte-Castillo’s contention that the IJ had improperly relied on the
fact of his prior criminal conviction to find him not credible, determining that the IJ had also relied
on Dealmonte-Castillo’s inconsistent testimony during the hearing. The BIA further held that
Dealmonte-Castillo had not shown the sufficient nexus between his status as a Mexican returning
from the United States and the persecution he claimed to have suffered.
Dealmonte-Castillo now petitions for review of the BIA’s decision, but this petition fails.
Even if we were to reverse the IJ’s finding, upheld by the BIA, that Dealmonte-Castillo’s testimony
was not credible, he still would not be entitled to asylum or withholding of removal, because he
has not shown that he has suffered, or will suffer, harm based on his social group status.1
Both asylum and withholding of removal require an alien to prove a connection between
harm that would be suffered if he is returned to a country, and that alien’s “race, religion,
nationality, membership in a particular social group, or political opinion.” 8 U.S.C.
§ 1101(a)(42)(A); 1158(b)(1)(B)(i). Dealmonte-Castillo’s argument here is that he is a “pocho,”
1
Dealmonte-Castillo made arguments under the Convention Against Torture to the Board and the IJ, but he makes no
mention of that Convention in his brief, save for a mention in the Statement of Issues. Because only once noting a
claim in the Statement of Issues, without any developed argument, is insufficient to preserve it, see Pryor v. Holder,
436 F. App’x 471, 479 (6th Cir. 2011), any argument Dealmonte-Castillo has with respect to the Convention Against
Torture is forfeited.
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No. 18-3032, Dealmonte-Castillo v. Sessions
a Mexican who has spent time in the United States, and thus a member of a distinct social group
in Mexico. But we have repeatedly held that the social group of Mexicans returning from the
United States is not a cognizable social group under the Immigration and Nationality Act, and its
members are not entitled to relief on the basis of this identity. See Camacho-Villa v. Lynch, 661
F. App’x 354, 357 (6th Cir. 2016); Sanchez-Robles v. Lynch, 808 F.3d 688, 692 (6th Cir. 2015);
Diaz-Hernandez v. Holder, 635 F. App’x 159, 161 (6th Cir. 2015); Cano-Huerta v. Holder, 568
F. App’x 371, 373 (6th Cir. 2014). Although we ourselves have not used the term “pocho,” the
Ninth Circuit has explained that this term is synonymous with Mexicans returning from the United
States, and that a self-identified “pocho” is not entitled to withholding of removal or asylum by
nature of this identity. See Olivares-Calixto v. Sessions, 721 F. App’x 672, 673-74 (9th Cir. 2018)
(citing Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1228-29 (9th Cir. 2016) and Delgado-Ortiz v.
Holder, 600 F.3d 1148, 1150-52 (9th Cir. 2010)).
In addition, Dealmonte-Castillo has failed to demonstrate the required nexus between his
social group membership and a fear of persecution based on that membership. Both the IJ and the
BIA found that, even on Dealmonte-Castillo’s account, he had been targeted for recruitment
because of his perceived skills rather than on account of his identity as a “pocho.” This assessment
of the record is subject to review only for substantial evidence in support, see I.N.S. v. Elias-
Zacarias, 502 U.S. 478, 481 (1992), and substantial evidence did support the conclusion that
Dealmonte-Castillo was targeted only because of his perceived skills. There was no indication
that his “pocho” identity mattered except insofar as it aligned with those perceived skills.
Dealmonte-Castillo contends that he generally fears gang violence if returned to Mexico, but we
have many times rejected this argument, holding that the risk of gang violence to a Mexican
returning from the United States does not entitle that person to asylum, because a generalized fear
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of opportunistic gang members “is not a group membership recognized by the INA.” See Saucedo-
Solis v. Holder, 556 F. App’x 471, 474 (6th Cir. 2014) (collecting cases).
Because membership in a distinct social group and persecution as a result of that group
membership are necessary prerequisites for relief under the Immigration and Nationality Act,
Dealmonte-Castillo would not be entitled to asylum or withholding of removal, even if the IJ and
Board had credited his testimony as true. We therefore need not reach the issue of the credibility
of the testimony, since this is not necessary for our disposition of the petition.
The petition for review is DENIED.
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