Diaz Ruano v. Holder

Not for Publication in West's Federal Reporter

United States Court of Appeals
For the First Circuit

No. 10-1876

EDUARDO DE JESÚS DÍAZ RUANO,

Petitioner,

v.

ERIC H. HOLDER, JR., ATTORNEY GENERAL,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

Boudin, Selya and Howard,
Circuit Judges.

Robert M. Warren on brief for petitioner.
Tony West, Assistant Attorney General, Civil Division, John S.
Hogan, Senior Litigation Counsel, and Robbin K. Blaya, Trial
Attorney, Office of Immigration Litigation, on brief for
respondent.

April 28, 2011
 Per Curiam. Eduardo de Jesús Díaz Ruano, a Guatemalan

national, seeks judicial review of an order of the Board of

Immigration Appeals (BIA) denying his application for withholding

of removal and protection under Article III of the United Nations

Convention Against Torture (CAT). After careful consideration, we

deny the petition.

We draw the facts largely from the petitioner's testimony

before the immigration judge (IJ).

During his formative years, the petitioner lived in the

village of San Pedro Ayampuc, where he worked on his father's farm.

Over time, criminal gangs became an insidious influence in the

region. In 2003, one such gang turned its attention to the

petitioner's village.

The gang tried unsuccessfully to recruit one of the

petitioner's friends. The gang then threatened to beat the friend

if he did not join. The recalcitrant recruit responded by fleeing

the country.

The petitioner feared that the gang, members of which

frequently had seen him and his friend together, would focus on him

next. This fear became a reality; the gang confronted the

petitioner to determine the friend's whereabouts. The petitioner

would not divulge this information, and the gang threatened him

with violence. The petitioner reported this incident to the

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police. They paid him a visit but told him that there was not

enough evidence to pursue the matter.

When the gang beat a friend so severely that he required

hospitalization,1 the petitioner, who was then eighteen years of

age, decided to flee to the United States. He believed that the

gangs were ubiquitous throughout Guatemala and feared that he would

not find a safe haven elsewhere in his homeland.

The petitioner entered the United States in 2003, without

inspection. Federal authorities commenced removal proceedings

against him in 2006. He conceded removability and cross-applied

for withholding of removal and protection under the CAT. He did

not seek asylum, presumably because the one-year deadline had

passed by then. See 8 U.S.C. § 1158(a)(1), (2)(B).

After an evidentiary hearing, the IJ denied the cross-

application, holding that the petitioner was not eligible for

either withholding of removal or protection under the CAT.

The petitioner's administrative appeal came to naught.

The BIA, on de novo review, confirmed that he had not demonstrated

eligibility for either form of relief. This timely petition for

judicial review followed.

1
The record is unclear as to the details of this incident and
whom it involved.

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 The petitioner challenges both facets of the BIA's ukase.

We address his claims sequentially. We start, however, with the

standard of review.

We review the agency's factual findings through the prism

of the substantial evidence rule. INS v. Elias-Zacarias, 502 U.S.

478, 481 (1992). Viewed through that prism, we will accept those

findings unless the record as a whole would compel a reasonable

factfinder to reach a contrary conclusion. Id. Questions of law

engender de novo review, with some deference to the BIA's

interpretation of statutes and regulations that fall within its

purview. Elien v. Ashcroft, 364 F.3d 392, 396-97 (1st Cir. 2004).

The first of the petitioner's assignments of error

implicates the denial of withholding of removal. The relevant

legal framework is familiar.

An alien who seeks withholding of removal may not be

deported if, upon repatriation, his life or freedom would be

threatened on account of any one of five statutorily protected

grounds: race, religion, nationality, political opinion, or

membership in a social group. See 8 U.S.C. § 1231(b)(3)(A); 8

C.F.R. § 1208.16(b); Pulisir v. Mukasey, 524 F.3d 302, 308 (1st

Cir. 2008). The alien bears the burden of showing that there is a

"clear probability" that such persecution will transpire.2 INS v.

2
In the withholding of removal context, a "threat to life or
freedom" is functionally equivalent to "persecution" in the asylum
context, Wiratama v. Mukasey, 538 F.3d 1, 3 (1st Cir. 2008), and we

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Stevic, 467 U.S. 407, 430 (1984). This entails a showing of a

prospect of serious harm or jeopardy, not mere discomfiture,

unpleasantness, ordinary harassment, or unfair treatment. López

Pérez v. Holder, 587 F.3d 456, 461 (1st Cir. 2009); López de

Hincapie v. Gonzales, 494 F.3d 213, 217 (1st Cir. 2007). It also

entails a showing of some connection between the government and the

anticipated harm, whether by participation, acquiescence, or

condonation. See, e.g., López Pérez, 587 F.3d at 462; Raza v.

Gonzales, 484 F.3d 125, 129 (1st Cir. 2007).

We turn now from the general to the specific. The

petitioner asserts that he fears persecution because of his

membership in a social group composed of "young male[s] sought out

for information and recruitment by the criminal gang of Guatemala."

As we explain below, this definition does not describe a social

group within the taxonomy of the statute.

To begin, the BIA has determined that members of a

cognizable social group must share one or more common, immutable

characteristics that make the group sufficiently particular and

socially visible. Matter of E-A-G-, 24 I. & N. Dec. 591, 593-94

(BIA 2008); Matter of S-E-G-, 24 I. & N. Dec. 579, 582-83 (BIA

2008); see generally Matter of Acosta, 19 I. & N. Dec. 211, 232-34

(BIA 1985). We have pronounced this requirement an acceptable

use the terms interchangeably. The required degree of probability
is, however, higher for withholding of removal. Id.

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gloss on the statutory language. See Faye v. Holder, 580 F.3d 37,

41 (1st Cir. 2009); Scatambuli v. Holder, 558 F.3d 53, 59 (1st Cir.

2009); Da Silva v. Ashcroft, 394 F.3d 1, 5 (1st Cir. 2005). The

group proposed by the petitioner does not satisfy this criterion.

Phrases that are open-ended and subject to

interpretation, such as "recruitment" potential and "information"

that might be attractive to a gang, are not sufficiently particular

to describe a cognizable social group. See Ahmed v. Holder, 611

F.3d 90, 94 (1st Cir. 2010). Such loose and inherently subjective

descriptions do not "permit an accurate separation of members from

non-members." Id. Because their boundaries are neither clearly

demarcated nor self-elucidating, they do not delimit a cognizable

social group. See Mendez-Barrera v. Holder, 602 F.3d 21, 27 (1st

Cir. 2010); see generally Faye, 580 F.3d at 41-42 (noting that

terms such as "wealthy" and "affluent" are too vague to define a

social group).

Moreover, the age parameters ("young male[s]") are

similarly lacking in precision. One who is "young" in the eyes of

one observer may not be "young" in the eyes of another observer.3

In addition, the age parameters span a period of several years, and

the petitioner makes no effort to account for the gap between his

difficulties with the gang (at age eighteen) and his age at

3
For example, a twenty-five year old may be "young" in the
eyes of an octogenarian, but "old" in the eyes of a third-grade
student.

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possible repatriation (he is now in his mid-twenties). See Matter

of S-E-G-, 24 I. & N. Dec. at 583-84.

To cinch matters, the petitioner has not demonstrated

that his putative social group has the requisite social visibility.

In order to satisfy the requirements for a social group, an alien

must show that the relevant community (here, Guatemala) views the

described group as a discrete class. See Castañeda-Castillo v.

Holder, ___ F.3d ___, ___ (1st Cir. 2011) [No. 09-1847, slip op. at

20]; Santos-Lemus v. Mukasey, 542 F.3d 738, 746 (9th Cir. 2008).

A social group must be more than an empty description or string of

words; it must be a group of people publicly recognized as such in

the relevant community. See Ahmed, 611 F.3d at 94. The petitioner

has failed to make this showing with respect to "young male[s]

sought out for information and recruitment."

If more were needed — and it plainly is not — the

petitioner's claim for withholding of removal is deficient in

another respect: he has failed to tie mistreatment at the hands of

the gang to the Guatemalan government. He makes no assertion that

the government is directly responsible for the activities of the

gang. Thus, he must show governmental acquiescence: that the

government is either unwilling or unable to control the gang's

misconduct. See Jorgji v. Mukasey, 514 F.3d 53, 57 (1st Cir.

2008); Orelien v. Gonzales, 467 F.3d 67, 72 (1st Cir. 2006).

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 The only evidence bearing on this point is the

petitioner's testimony that when he notified the police of his

confrontation with the gang, their response was stymied by a

professed lack of evidence. Building on this porous foundation,

the petitioner urges us to conclude that the police acquiesced in

the gang's conduct.

We resist that exhortation. The vignette relied on by

the petitioner does not compel the conclusion that the government

was either unable or unwilling to control the gang. It is at least

as plausible to infer that the police were ready, willing, and able

to follow up, but could not do so with the scanty information that

the petitioner was able to provide. A reasonable factfinder would

not be compelled to conclude that the police condoned the gang's

mischief. The BIA's contrary conclusion is, therefore, supported

by substantial evidence. See Morgan v. Holder, 634 F.3d 53, 59

(1st Cir. 2011).

This brings us to the petitioner's second assignment of

error: the rejection of his CAT claim. To prevail on such a claim,

an alien must show that, more likely than not, he will be tortured

upon repatriation. 8 C.F.R. § 1208.16(c)(2); Romilus v. Ashcroft,

385 F.3d 1, 8 (1st Cir. 2004). For CAT purposes, "torture" is any

act that inflicts severe physical or mental pain, "when such pain

or suffering is inflicted by or at the instigation of or with the

consent or acquiescence of a public official or other person acting

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in an official capacity." 8 C.F.R. § 1208.18(a); see Chhay v.

Mukasey, 540 F.3d 1, 7 (1st Cir. 2008). Consequently, the alien

must show not only that the feared harm would amount to torture but

also that it would have a legally sufficient nexus to the

government.

We need not probe these points. In this case, the

petitioner has made no meaningful effort to satisfy the applicable

standard. While his brief makes a conclusory reference to the

insupportability of the BIA's ruling denying him CAT protection, it

is devoid of any developed argumentation regarding this claim.

Given this failing, we deem the claim abandoned.4 See Pan v.

Gonzales, 489 F.3d 80, 87 (1st Cir. 2007); Jiang v. Gonzales, 474

F.3d 25, 32 (1st Cir. 2007); see also United States v. Zannino, 895

F.2d 1, 17 (1st Cir. 1990).

We need go no further. For the reasons elucidated above,

we deny the petition for judicial review.

So Ordered.

4
We note in passing that in view of the petitioner's
inability to show either governmental involvement or acquiescence
in the gang's conduct, see text supra, it seems clear that, on this
record, he could not in any event show the requisite link between
the claimed "torture" and the Guatemalan government.

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