Diaz Ruano v. Holder

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 11-1224
JOSE OVIDIO DIAZ RUANO,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.
Robert M. Warren on brief for petitioner.
Anthony P. Nicastro, Senior Litigation Counsel, Civil
Division, Department of Justice, Tony West, Assistant Attorney
General, Civil Division, and Ernesto H. Molina, Jr., Assistant
Director, on brief for respondent.
February 3, 2012
LYNCH, Chief Judge. Jose Ovidio Diaz Ruano petitions for
review of a January 31, 2011, decision by the Board of Immigration
Appeals (BIA), which affirmed the decision of an Immigration Judge
(IJ) denying his application for withholding of removal and
protection from removal under the Convention Against Torture (CAT).
Diaz Ruano is a native and citizen of Guatemala who
unlawfully entered the United States in April 1999. On June 9,
2006, the Department of Homeland Security started removal
proceedings by filing a Notice to Appear with the immigration
court, charging Diaz Ruano with removability as an alien present in
the United States without being admitted or paroled. See 8 U.S.C.
§ 1182(a)(6)(A)(i). Diaz Ruano admitted the factual allegations in
the Notice to Appear, conceded removability, and requested relief
from removal in the form of withholding of removal and protection
under the CAT. In the alternative, Diaz Ruano requested voluntary
departure.
Diaz Ruano's merits hearing was held before the IJ on
October 30, 2008. Diaz Ruano testified that in 1998 when he was
still in Guatemala, members of a gang threatened him and attempted
to beat him up. He did not know or recognize the gang members and
did not know why they threatened to beat him. He did not go to the
police because he did not believe the police would do anything to
help him. This was Diaz Ruano's only encounter with the gangs.
Neither Diaz Ruano's family nor his friends had been harassed by
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the gangs, but he testified that "[f]riends of [his] friends" had
been harassed. He also testified that his family, which is still
in Guatemala, told him that gang members had accosted the driver of
a van and asked him for money, then killed him when he refused.
Diaz Ruano testified that he feared returning to
Guatemala because the gangs would think that he would have money on
him and would ask him for it and threaten to kidnap a family member
if he did not give them the money, or they would ask him to join
them. When questioned by the IJ as to whether he feared torture if
he went back to Guatemala, Diaz Ruano stated that he did not know.
The IJ found that Diaz Ruano's testimony was credible.
The IJ also found that Diaz Ruano had not met his burden of showing
that it was more likely than not that he would be subjected to
persecution on account of his membership in any of the three
purported social groups he asserted: young men targeted for
recruitment by the criminal gangs in Guatemala; individuals opposed
to the criminal gangs in Guatemala; and persons of perceived wealth
returning from the United States.
The IJ concluded that none of the social groups asserted
by Diaz Ruano have the particular characteristics of a social group
as defined by the statutes, regulations, and case law and denied
his application for withholding of removal. The IJ also found that
Diaz Ruano had not met his burden of showing that there is a clear
probability that he would be subjected to torture by any group if
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he was returned to Guatemala, and so rejected his claim for
protection under the CAT. The IJ granted Diaz Ruano voluntary
departure.
Diaz Ruano appealed the IJ's decision, and the BIA,
finding no error, dismissed the appeal. The BIA agreed with the IJ
that the social groups Diaz Ruano identified lack the visibility
and particularity required for a recognized social group. The BIA
also explained that Diaz Ruano had not established past persecution
or a clear probability of persecution if he was returned to
Guatemala. Finally, the BIA concluded that Diaz Ruano had not
demonstrated that it was likely that he would be tortured by, or
with the acquiescence of, the Guatemalan authorities; so he was not
eligible for relief under the CAT.
On March 2, 2011, Diaz Ruano petitioned this court for
review of the BIA's decision and unsuccessfully moved to stay
removal.
We review both the BIA's and the IJ's opinions when, as
here, the BIA adopts and affirms part of the IJ's ruling and
further justifies the IJ's conclusions. Nako v. Holder, 611 F.3d
45, 48 (1st Cir. 2010).
We decide petitions for review based on the
administrative record that is the basis of the agency's findings,
8 U.S.C. § 1252(b)(4)(A), and the "the administrative findings of
fact are conclusive unless any reasonable adjudicator would be
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compelled to conclude to the contrary," id. § 1252(b)(4)(B). We
accept the agency's findings of fact "that are supported by
substantial evidence on the record as a whole." Morgan v. Holder,
634 F.3d 53, 57 (1st Cir. 2011). The agency's conclusions of law
we review de novo, "but with some deference to the agency's founded
interpretation of statutes and regulations that it administers."
McKenzie-Francisco v. Holder, 662 F.3d 584, 586 (1st Cir. 2011).
Withholding of removal protects an otherwise removable
alien from removal to a country where the alien's "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). The BIA has
described the term "particular social group" as a group of persons
sharing a common, immutable characteristic that makes the group
socially visible and sufficiently particular, In re C-A-, 23 I. &
N. Dec. 951, 959-60 (B.I.A. 2006); see also Faye v. Holder, 580
F.3d 37, 41 (1st Cir. 2009), a delineation that we have upheld as
reasonable, see Mendez-Barrera v. Holder, 602 F.3d 21, 25 (1st Cir.
2011).
Diaz Ruano bears the burden of showing that it is more
likely than not that he will suffer persecution on account of one
of the five protected grounds if removed to Guatemala. Makalo v.
Holder, 612 F.3d 93, 96 (1st Cir. 2010). A showing of past
persecution creates a rebuttable presumption that future
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persecution is likely. Viela v. Holder, 620 F.3d 25, 28 (1st Cir.
2010). In addition, under the REAL ID Act of 2005, the applicant
bears the burden of showing that one of the five protected grounds
was or will be at least one central reason for his or her
persecution.1 8 U.S.C. § 1158(b)(1)(B)(i); see also id.§ 1231(b)(3)(C).
Substantial evidence supports the agency's determination
that Diaz Ruano failed to show that it is more likely than not
that, if removed to Guatemala, he would suffer persecution on
account of his membership in a particular social group. Our
precedents foreclose Diaz Ruano's claims that he will be subjected
to persecution on account of his membership in the groups of young
males targeted by the criminal gangs in Guatemala for recruitment
or because of opposition to gangs and in the group of persons of
perceived wealth returning from the United States.
In Larios v. Holder, 608 F.3d 105 (1st Cir. 2010), we
held that the putative social group of youth resistant to gang
recruitment "is neither socially visible nor sufficiently
particular." Id. at 109. Diaz Ruano's purported social group of
"young males targeted by the criminal gangs in Guatemala" is
1
The REAL ID Act of 2005 is applicable to Diaz Ruano because
he submitted his application for withholding of removal after the
May 11, 2005, effective date of the Act. See 8 U.S.C. § 1158 note
(Effective Date of 2005 Amendment); Díaz-García v. Holder, 609 F.3d
21, 27 (1st Cir. 2010).
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similarly insufficiently particular, and it was reasonable for the
IJ and the BIA to reject it.
We have also repeatedly rejected the purported social
group of "persons of perceived wealth returning to Guatemala from
the United States." See Garcia-Callejas v. Holder, No. 11-1084,
2012 WL 178381, slip op. at 4 (1st Cir. Jan. 24, 2012) (per curiam)
("We have . . . rejected social groups based solely on perceived
wealth, even if signaling an increased vulnerability to crime.").
In López-Castro v. Holder, 577 F.3d 49 (1st Cir. 2009), we held
that the petitioner's claim "that he would be exposed to an
increased risk of future attacks by gang members in Guatemala
because he will be perceived as wealthy . . . fails to establish an
objectively reasonable basis for a fear of future persecution
premised on a statutorily protected ground." Id. at 54; see also
Sicaju-Diaz v. Holder, 663 F.3d 1, 4 (1st Cir. 2011). Diaz Ruano
has failed to meet his burden of demonstrating eligibility for
withholding of removal.
Substantial evidence also supports the agency's finding
that Diaz Ruano failed to establish that it is more likely than not
that he would be subject to torture upon his return to Guatemala
and so failed to meet his burden for relief under the CAT. See 8
C.F.R. § 1208.16(c)(2) ("The burden of proof is on the applicant
for withholding of removal [under the CAT] to establish that it is
more likely than not that he or she would be tortured if removed to
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the proposed country of removal."). During Diaz Ruano's merits
hearing, the IJ asked Diaz Ruano if he feared torture if he was
returned to Guatemala, and Diaz Ruano responded that he did not
know. As both the IJ and BIA found, Diaz Ruano did not meet his
burden for withholding of removal under the CAT.
Accordingly, we deny Diaz Ruano's petition for review.
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