Ruben Torres-Ortega v. Eric Holder, Jr.

Case: 13-60035 Document: 00512423171 Page: 1 Date Filed: 10/29/2013

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
October 29, 2013
No. 13-60035
Summary Calendar Lyle W. Cayce
Clerk

RUBEN TORRES-ORTEGA, also known as Guillermo Torres-Ortega, also
known as Ruben Torres,

Petitioner

v.

ERIC H. HOLDER, JR., U. S. ATTORNEY GENERAL,

Respondent

Petition for Review of an Order of the
Board of Immigration Appeals
BIA No. A089 095 233

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
Ruben Torres-Ortega, a native and citizen of Mexico, petitions for review
of the decision of the Board of Immigration Appeals (BIA) dismissing his appeal
from the denial by the Immigration Judge (IJ) of his application for asylum,
withholding of removal, and relief under the Convention Against Torture (CAT).
The BIA concluded, relevant to the instant petition, that Torres-Ortega had
failed to show that membership in a particular social group (PSG) would be one

*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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No. 13-60035

central reason for any feared future persecution. It also concluded that
Torres-Ortega had not shown that he would more likely than not be tortured
with the consent or acquiescence of public officials if he were returned to Mexico.
The respondent has moved for summary disposition of Torres-Ortega’s petition.
Torres-Ortega’s alleged refugee status was based on his membership in
two separate but related PSGs. The first putative group is made up of
“entrepreneurs and private enterprise owners and their family members.” The
second putative group is Americanized individuals returning to Mexico from the
United States who are perceived as potentially wealthy. These two groups, he
alleged, were at increased risk of kidnapping and extortion by criminal cartels
in Mexico.
In considering whether a PSG exists, the BIA considers “(1) whether the
group’s shared characteristic gives the members the requisite social visibility to
make them readily identifiable in society and (2) whether the group can be
defined with sufficient particularity to delimit its membership.”
Orellana-Monson v. Holder, 685 F.3d 511, 519 (5th Cir. 2012) (emphasis in
original) (quotation marks and citation omitted). The BIA’s use of these criteria
is permissible, and its interpretation of “a particular social group” based on these
criteria is entitled to deference unless it is arbitrary and capricious. Id. at
520-21. In this case, the BIA concluded that the putative PSG of business
owners or wealthy people was too broad to be defined with sufficient
particularity. It concluded that the putative group of Americanized aliens
returning to Mexico was merely a subset of the individuals perceived to have
wealth in Mexico, and wealth was not an enumerated ground for asylum.
Torres-Ortega asserts that the putative PSG of business owners in Mexico
can be defined with sufficient particularity because only a limited number of
Mexicans own businesses. He provides no authority for this statement, however,
stating only that the shared experience of business ownership would be
sufficient to constitute a PSG. He also asserts that the membership of both of

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No. 13-60035

his putative PSGs would be limited and finite in a rural area like his hometown
of Guanajuato, Mexico. He does not, however, address whether such groups
would be as limited and finite in more densely populated areas of Mexico. See
Lopez-Gomez v. Ashcroft, 263 F.3d 442, 446 (5th Cir. 2001) (stating that asylum
is not warranted if an alien can safely relocate within his country); 8 C.F.R.
§ 208.13(b)(1)(i)(B), (b)(2)(ii).
We conclude that Torres-Ortega has not shown that the record compels a
conclusion contrary to that of the BIA that he was ineligible for asylum. See
Chen v. Gonzales, 470 F.3d 1131, 1134 (5th Cir. 2006). The standard for
receiving withholding of removal is higher than that for receiving asylum. Roy
v. Ashcroft, 389 F.3d 132, 138 (5th Cir. 2004). Thus, because Torres-Ortega has
not shown eligibility for asylum, “a fortiori, he is ineligible for withholding of
deportation.” Jukic v. I.N.S., 40 F.3d 747, 750 (5th Cir. 1994).
We turn now to the denial of relief under the CAT. An alien seeking relief
under the CAT must show that it is more likely than not that he would be
tortured upon return to his home country. Chen, 470 F.3d at 1139. Torture is
defined as “any act by which severe pain or suffering, whether physical or
mental, is intentionally inflicted on a person . . . by or at the instigation of or
with the consent or acquiescence of a public official or other person acting in an
official capacity.” 8 C.F.R. § 208.18(a)(1).
Torres-Ortega challenges the BIA’s determination that he had not shown
the required government acquiescence in light of record evidence that the
Mexican government was not willfully blind to the cartels’ activities. However,
he does not address the BIA’s additional findings that he had not been tortured
in the past, that Torres-Ortega was not currently being sought by anyone in
Mexico, and that general violence by criminal cartels was insufficient to show an
eligibility for relief. Torres-Ortega’s conclusional assertions that he will be
tortured if he returns to Mexico are insufficient to compel a conclusion different
from that reached by the BIA. See Chen, 470 F.3d at 1134.

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No. 13-60035

Summary disposition is not appropriate in this case, and the respondent’s
motion is thus DENIED. See United States v. Holy Land Found. for Relief &
Dev., 445 F.3d 771, 781 (5th Cir. 2006). However, because the record before us
does not compel findings different from those of the IJ or the BIA, see Chen, 470
F.3d at 1134; Zhang v. Gonzales, 432 F.3d 339, 344 (5th Cir. 2005), we
DISPENSE WITH FURTHER BRIEFING. Torres-Ortega’s petition for review
is DENIED.

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