Juan Ramirez-Munoz v. Loretta E. Lynch , 816 F.3d 1226 ( 2016 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN CARLOS RAMIREZ-MUNOZ and No. 12-70870
MARIA BEATRIZ ADRIANA FRANCIA-
ALVAREZ, Agency Nos.
Petitioners, A075-759-498
A075-759-499
v.
LORETTA E. LYNCH, Attorney OPINION
General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted January 22, 2016*
San Francisco, California
Filed March 21, 2016
Before: J. Clifford Wallace, Barry G. Silverman,
and Morgan B. Christen, Circuit Judges.
Opinion by Judge Wallace
*
At the request of the parties, we removed this case from our argument
calendar on September 28, 2015. We were advised by the parties that the
case could be calendared on November 6, 2015. The panel unanimously
concludes this case is suitable for decision without oral argument. See
Fed. R. App. P. 34(a)(2).
2 RAMIREZ-MUNOZ V. LYNCH
SUMMARY**
Immigration
The panel denied a petition for review of the Board of
Immigration Appeals’ order denying an untimely and
numerically barred motion to reopen removal proceedings in
a case in which Mexican citizens asserted a fear of
persecution based on their membership in a social group
comprised of “imputed wealthy Americans.”
The panel held that the Board did not abuse its discretion
in denying the motion because petitioners failed to establish
prima facie eligibility for asylum or withholding of removal
relief or changed country conditions to warrant an exception
to the time and number limitations on their motion.
The panel held that petitioners’ proposed social group is
not cognizable because it lacks particularity or a discrete class
of persons recognized by Mexican society as a particular
social group.
The panel concluded that petitioners failed to establish
changed country conditions in Mexico because the evidence
does not point to either actual or imputed wealthy Americans
as the targeted class of victims of increased violence.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
RAMIREZ-MUNOZ V. LYNCH 3
COUNSEL
Kari E. Hong, Law Offices of Kari E. Hong, Oakland,
California, for Petitioners.
Stuart F. Delery, Acting Assistant Attorney General, Richard
M. Evans, Assistant Director, Andrew Oliveira, Trial
Attorney, United States Department of Justice, Office of
Immigration Litigation, Washington, D.C., for Respondents.
OPINION
WALLACE, Circuit Judge:
Petitioners Juan Carlos Ramirez-Munoz and Maria
Beatriz Adriana Francia-Alvarez petition for review of the
Board of Immigration Appeals’ (Board) decision to deny the
motion to reopen their applications for asylum, withholding
of removal, and deferral of removal under the Convention
Against Torture (CAT).
I.
Petitioners are a married couple and are both natives and
citizens of Mexico. Ramirez-Munoz last entered the United
States without a visa in 1999, and Francia-Alvarez last
entered without inspection in 1990. Petitioners have two
biological United States citizen children and one “informally
adopted” United States citizen child. The Board correctly
held that an informally adopted child is not considered a
“child” under the Immigration and Nationality Act, and thus
is not proper for consideration in removal proceedings.
8 U.S.C. § 1101(b)(1).
4 RAMIREZ-MUNOZ V. LYNCH
Petitioners seek asylum, withholding of removal, and
relief under the CAT based on a claim that they are members
of a particular social group, “imputed wealthy Americans,”
and will be persecuted and tortured if removed to Mexico due
to membership in the social group. The IJ denied their
application in 2003. The Board found petitioners removable
and denied their fourth motion to reopen on March 2, 2012,
on the grounds that Petitioners’ motion was time and number-
barred because they failed to demonstrate prima facie
eligibility for asylum based on changed country conditions.
Petitioners argue that the Board did not consider their
proposed particular social group, “imputed wealthy
Americans,” as a group distinct from the proposed group
rejected in Delgado-Ortiz v. Holder, 600 F.3d 1148, 1153
(9th Cir. 2010). They contend that because they are light-
skinned, fit, and have American mannerisms or accents, their
family will be perceived as wealthy Americans in Mexico,
and thus will become targets for kidnaping or torture.
Petitioners assert that they are not actually wealthy, but the
appearance of wealth will endanger them. Petitioners also
introduced evidence of changed country conditions in
Mexico, indicating a recent increase in violence in Mexico,
in an attempt to overcome the time and number bar to their
motion to reopen.
II.
We review the Board’s denial of a motion to reopen for
abuse of discretion. Perez v. Mukasey, 516 F.3d 770, 773 (9th
Cir. 2008). A motion to reopen will not be granted unless the
respondent establishes a prima facie case of eligibility for the
underlying relief sought. See Ordonez v. INS, 345 F.3d 777,
785 (9th Cir. 2003).
RAMIREZ-MUNOZ V. LYNCH 5
Prima facie eligibility for asylum relief is met when an
alien demonstrates he is unwilling or unable to return to his
country of origin “because of persecution or a well-founded
fear of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion.”
8 U.S.C. § 1101(a)(42).
We have defined a particular social group as “one united
by a voluntary association, including a former association, or
by an innate characteristic that is so fundamental to the
identities or consciences of its members that members either
cannot or should not be required to change it.” Hernandez-
Montiel v. INS, 225 F.3d 1084, 1093 (9th Cir. 2000),
overruled on other grounds by Thomas v. Gonzales, 409 F.3d
1177, 1187 (9th Cir. 2005) (en banc). Examining the criteria
for “particularity,” we more recently held that the critical
question is whether the group “would be recognized, in the
society in question, as a discrete class of persons.”
Henriquez-Rivas v. Holder, 707 F.3d 1089, 1091 (9th Cir.
2013) (en banc), quoting Matter of S-E-G-, 24 I. & N. Dec.
579, 584 (BIA 2008).
The Board relied on our decision in Delgado-Ortiz, which
discredited the proposed social group “Mexicans returning
home from United States” as overly broad and therefore
insufficient to merit asylum protection. 600 F.3d at 1150.
Petitioners argue that the Board ignored the distinction
between Delgado-Ortiz and its own “discrete” proposed
group where the Board found that they are not “members of
a particular social group that will be targeted for violent
crime due to their long-term residence in the United States
and the acquisition of American mannerisms and accents.”
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Delgado-Ortiz did not expound on the reasons for which
Mexicans returning home from the United States might be
targets of violent crime, although the anecdotal evidence
described in that case points to the persecutors’ likely
motivation as monetary gain, where victims were robbed and
burglarized upon return to Mexico. Id. at 1151. The
distinction appears to be a matter of semantics in this case.
Perceived wealth due to American appearance was not
explicitly at issue in Delgado-Ortiz, and Petitioners now seek
to distinguish a particular social group that is a discrete subset
of Mexicans returning home from the United States: those
who have the physical appearance and mannerisms of
Americans. Yet, petitioners provide insufficient evidence to
support their claim that their alleged American appearance
will make them targets for violent crimes upon return to
Mexico any more than the populace at large. The evidence
submitted in support of changed circumstances includes both
American and Mexican victims of financial means, and the
other evidence in the form of news reports does not mention
wealth as the perpetrators’ primary motive. Rather, the
evidence shows a generalized increase in violence in Mexico,
as held by the Board.
We agree with the Board’s determination in this case that
Petitioners have not established that they are part of a
narrowly defined or cognizable particular social group, and
we hold that the proposed group of “imputed wealthy
Americans” is not a discrete class of persons recognized by
society as a particular social group. Henriquez-Rivas,
707 F.3d at 1091. Nor is the proposed group sufficiently
particular that it can be described with passable distinction
that the group would be recognized as a discrete class of
persons. Id. at 1090. Starting from Delgado-Ortiz’s holding
that “Mexicans returning home from the United States” was
RAMIREZ-MUNOZ V. LYNCH 7
overly broad, we conclude that petitioners have not supported
their proposed social group of those returning home who
appear to be American with evidence that supports a
favorable determination under the various factors we consider
in determining whether a proposed group is narrowly tailored.
As we outlined recently en banc, such factors include, among
others, social visibility – a group’s “perception by a society”
– and particularity – the ability to describe a group “in a
manner sufficiently distinct that the group would be
recognized, in the society in question, as a discrete class of
persons.” Id. at 1089–91. As to particularity, which is a key
factor in Petitioners’ argument to distinguish their proposed
group, although it is possible that the perception of the
persecutors “may matter most” in determining particularity of
a group, “[i]f a persecutor does not actually rely on specific
boundaries or definitions to identify the group, it may be
more difficult to believe that a collection of individuals is in
fact perceived as a group.” Id. at 1091.
III.
Petitioners’ evidence of changed country conditions does
not point to either actual or imputed wealthy Americans as
the targeted class of victims of increased violence. To
establish changed country conditions, petitioners must
demonstrate that “circumstances have changed sufficiently
that a petitioner who previously did not have a legitimate
claim for asylum now has a well-founded fear of future
persecution.” Malty v. Ashcroft, 381 F.3d 942, 945 (9th Cir.
2004). The evidence submitted by petitioners points to
troubling accounts of violence and kidnaping in Mexico, but
in the aggregate it does not specifically show that violent
individuals are targeting Americans or even wealthy
individuals. A Washington Post article Petitioners rely on
8 RAMIREZ-MUNOZ V. LYNCH
specifically discusses kidnappings where “well-to-do
Mexican families” are also targeted. The same article states
that Mexican gangs “prey mostly on Mexicans or other Latin
Americans” because the Federal Bureau of Investigation may
get involved if a United States citizen is kidnapped. In short,
petitioners did not meet their burden of showing that persons
appearing to be American have been, or will be, presumed
wealthy and targeted as a result. We agree with the Board
that although violent crimes appear to have increased since
the prior motion to reopen, the evidence does not constitute
changed circumstances such that any potential harm would be
attributed to a statutorily-protected ground.
IV.
A petitioner who fails to satisfy the lower standard of
proof for asylum necessarily fails to satisfy the more
stringent standard for withholding of removal. Farah v.
Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003). With regard to
the CAT claim, Petitioners must establish it is more likely
than not they would be tortured if removed to Mexico. Where
Petitioners have not shown they are any more likely to be
victims of violence and crimes than the populace as a whole
in Mexico, they have failed to carry their burden. Delgado-
Ortiz, 600 F.3d at 1152.
Because the petitioners have not shown that the Board
abused its discretion, the petition for review is DENIED.