United States Court of Appeals
For the First Circuit
No. 15-2181
OMAR IVAN ALVIZURES-GOMES,
Petitioner,
v.
LORETTA E. LYNCH,
ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER
OF THE BOARD OF IMMIGRATION APPEALS
Before
Torruella, Selya and Lynch,
Circuit Judges.
Hans J. Bremer and Bremer Law & Associates, LLC on brief for
petitioner.
Benjamin C. Mizer, Principal Deputy Assistant Attorney
General, Civil Division, United States Department of Justice,
Blair T. O'Connor, Assistant Director, Office of Immigration
Litigation, and John F. Stanton, Trial Attorney, Office of
Immigration Litigation, on brief for respondent.
July 21, 2016
SELYA, Circuit Judge. The petitioner, Omar Ivan
Alvizures-Gomes, seeks judicial review of a final order of the
Board of Immigration Appeals (BIA) denying his application for
asylum, withholding of removal, and protection under the United
Nations Convention Against Torture (CAT). Detecting no error, we
deny the petition.
The relevant facts are uncomplicated. The petitioner is
a Guatemalan national who resided there until September 5, 2011,
when he entered the United States illegally. He was soon
apprehended and placed in removal proceedings. See 8 U.S.C.
§ 1227(a)(1)(B). Conceding removability, he cross-applied for
asylum, withholding of removal, and CAT protection. In support,
he claimed both past persecution and fear of future persecution on
account of his anti-gang political opinion and his membership in
a particular social group. See id. § 1101(a)(42)(A). He further
claimed a likelihood that, if repatriated, the government would
condone his torture at the hands of gang members. See 8 C.F.R.
§ 1208.16(c).
On November 7, 2013, the petitioner testified before an
immigration judge (IJ) that his flight to the United States was
motivated by a fear of gangs in his native country after he had
resolutely rejected their recruitment efforts. He explained that
this fear developed following several in-person confrontations and
his receipt of three threatening letters. He also proffered a
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miscellany of documents, including country conditions reports,
aimed at showing what life was like in Guatemala.
At the conclusion of the hearing, the IJ assumed that
the petitioner was generally credible, but nonetheless denied him
any relief because he had not established his refugee status. The
IJ also found that the petitioner had failed to show a likelihood
that Guatemalan authorities would acquiesce in torture directed at
the petitioner.
The petitioner unsuccessfully appealed to the BIA.
Following the BIA's adverse decision, he prosecuted the instant
petition for judicial review.
Judicial oversight in immigration cases typically
focuses on the final decision of the BIA. See Cabrera v. Lynch,
805 F.3d 391, 393 (1st Cir. 2015). Such an approach is in order
where, as here, "the BIA has conducted an independent evaluation
of the record and rested its affirmance of the IJ's decision on a
self-generated rationale." Pulisir v. Mukasey, 524 F.3d 302, 307-
08 (1st Cir. 2008).
Throughout our analysis of the BIA's decision, "[c]laims
of legal error engender de novo review, with some deference to the
agency's expertise in interpreting both the statutes that govern
its operations and its own implementing regulations." Cabrera,
805 F.3d at 393. Factual findings are reviewed for compliance
with the substantial evidence standard. See López-Castro v.
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Holder, 577 F.3d 49, 52 (1st Cir. 2009). "Under this highly
deferential standard, we must accept the BIA's findings so long as
they are 'supported by reasonable, substantial, and probative
evidence on the record considered as a whole.'" Nikijuluw v.
Gonzales, 427 F.3d 115, 120 (1st Cir. 2005) (quoting INS v. Elias-
Zacarias, 502 U.S. 478, 481 (1992)). Such findings will be
disturbed only "if the record is such as to compel a reasonable
factfinder to reach a contrary determination." See Jianli Chen v.
Holder, 703 F.3d 17, 21 (1st Cir. 2012).
Against this backdrop, we turn to the petitioner's
specific claims, starting with his asylum claim. In a quest for
asylum, the devoir of persuasion rests with the asylum-seeker to
establish that he is a refugee as defined by the Immigration and
Nationality Act. See Villa-Londono v. Holder, 600 F.3d 21, 24
(1st Cir. 2010). "A refugee is a person who cannot or will not
return to her home country '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.'" Olujoke v. Gonzales, 411 F.3d 16, 21 (1st Cir. 2005)
(quoting 8 U.S.C. § 1101(a)(42)(A)).
The petitioner tries to wedge his asylum claim into this
template in two ways. To begin, he complains about both
persecution and a well-founded fear of future persecution based on
his anti-gang political opinion. Alternatively, he complains
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about both persecution and a well-founded fear of future
persecution based on his membership in a discrete social group,
namely, individuals returning to Guatemala from the United States
while leaving behind family members in the United States.
With respect to his political opinion argument, the
petitioner asserts that he was persecuted in Guatemala after he
rebuffed recruitment efforts by gang members. Building on this
foundation, he insists that his refusal to join the gangs expressed
a political opinion. The BIA disagreed, and so do we.
In the BIA's view, the decisive flaw in this reasoning
was that the petitioner failed to demonstrate a link between the
alleged persecution, on the one hand, and his political opinion,
on the other hand. This link, commonly referred to as the nexus
requirement, draws its essence from the refugee statute's "on
account of" language. The nexus requirement places the burden on
the alien to demonstrate that claimed persecution was or will be
"on account of" a statutorily protected ground, 8 U.S.C.
§ 1101(a)(42)(A); or, in other words, that the statutorily
protected ground "was or will be at least one central reason for
persecuting the [alien]," id. § 1158(b)(1)(B)(i); see Ratnasingam
v. Holder, 556 F.3d 10, 13 (1st Cir. 2009).
The BIA's determination that the petitioner's proof
lacked the necessary nexus is supported by substantial evidence in
the record. Gangs may have a nearly infinite variety of reasons
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for targeting a particular individual, including greed or an
aspiration to increase their membership. See, e.g., Beltrand-Alas
v. Holder, 689 F.3d 90, 94 (1st Cir. 2012); Mayorga-Vidal v.
Holder, 675 F.3d 9, 18-19 (1st Cir. 2012). Given the wide range
of possible motivations, "evidence of mere refusal to join a gang,
without more, does not compel a conclusion that the alleged
persecutor viewed the alien's resistance as an expression of a
political opinion." Mayorga-Vidal, 675 F.3d at 18.
In this instance, both the IJ and the BIA concluded that
the gangs' targeting of the petitioner was primarily motivated by
a desire to swell their ranks. Nothing in the record either
undermines this conclusion or compels a contrary conclusion. The
petitioner's testimony attributed no statements to gang members
about his political views, and the threats that he allegedly
received were devoid of any references to his political stance.
Given this empty record, we descry no error in the BIA's
determination that the petitioner failed to show the required nexus
between the actions taken by the gangs and any political opinion
that he might have held.1
1 In this venue, the petitioner labors to fill this void by
suggesting that he not only refused to join the gangs but also
communicated his political sentiments to the gang members by
telling them that he was taught to work for his money. These
statements, he contends, caused the gangs to target him and, thus,
created the requisite nexus. Regardless of the merit or lack of
merit of this contention — a matter on which we take no view — it
comes too late. Since the petitioner failed to advance this
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The petitioner's argument that he satisfies the nexus
requirement through his membership in a particular social group is
no more convincing. To satisfy the nexus requirement on this
basis, an alien must show, at a minimum, that he is a member of a
cognizable social group. See Carvalho-Frois v. Holder, 667 F.3d
69, 73 (1st Cir. 2012). A cognizable social group does not exist
merely because an alien can conjure up a description of it.
Instead, finding a cognizable social group requires a showing that
the group is "a group of persons sharing a common, immutable
characteristic that makes the group socially visible and
sufficiently particular." Mendez-Barrera v. Holder, 602 F.3d 21,
25 (1st Cir. 2010).
Here, the petitioner submits that he is a member of a
social group consisting of individuals returning to Guatemala from
the United States while leaving behind family members in the United
States. As such, his thesis runs, Guatemalan gangs will target
him because they will assume that he is wealthy.
In confronting this argument, we do not write on a
pristine page. We previously have rejected a substantially
identical argument: that individuals perceived as wealthy after
returning to Guatemala from the United States constitute a
contention before the BIA, we lack jurisdiction to review it. See
8 U.S.C. § 1252(d)(1); see also Ramirez-Matias v. Holder, 778 F.3d
322, 327 (1st Cir. 2015).
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cognizable social group. See Sam v. Holder, 752 F.3d 97, 100 (1st
Cir. 2014); Sicaju-Diaz v. Holder, 663 F.3d 1, 4 (1st Cir. 2011).
Such a proposed group fails to pass the applicable test because it
cannot satisfy the social visibility requirement needed for social
group status. See Rojas-Pérez v. Holder, 699 F.3d 74, 79 (1st
Cir. 2012). "For a group to be socially visible, 'it must be
generally recognized in the community as a cohesive group.'"
Carvalho-Frois, 667 F.3d at 73 (quoting Mendez-Barrera, 602 F.3d
at 26). The petitioner offers nothing to show that individuals
returning to their native land after a stay in the United States,
or wealthy individuals more generally, would be identified as a
group by their community, much less that they would be persecuted
on that account. See Rojas-Pérez, 699 F.3d at 78; Sicaju-Diaz,
663 F.3d at 4.
The petitioner attempts to blunt the force of these
precedents by formulating a slightly skewed group definition — one
that adds the fact that group members have family members who
remain in the United States. For present purposes, however, this
is a distinction without a difference: we cannot imagine how the
petitioner's proposed group ("[r]epatriated Guatemalans with
family in the U.S.") would be any more cohesive or socially visible
than the proposed groups that we consistently have rejected. For
his part, the petitioner has not attempted to address this point
but, rather, has simply turned a blind eye to it. Nor has he
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furnished even a smidgen of evidence indicating that this proposed
social group either is recognized as a cohesive group in the
community or has characteristics that enable ready differentiation
between group members and the rest of the populace. Thus, his
proposed social group does not get him anywhere. See Carvalho-
Frois, 667 F.3d at 73; Mendez-Barrera, 602 F.3d at 26.
For these reasons, then, we uphold the BIA's denial of
the petitioner's asylum claim. So, too, we uphold the BIA's denial
of the petitioner's withholding of removal claim. After all, a
claim for withholding of removal compels an alien to carry a
heavier burden of proof than does a counterpart claim for asylum.
See Mendez-Barrera, 602 F.3d at 27. Consequently, our rejection
of the petitioner's asylum claim leads inexorably to the rejection
of his withholding of removal claim. See Villa-Londono, 600 F.3d
at 24 n.1 ("[I]f a claim for asylum is rejected on the merits, a
counterpart claim for withholding of removal must necessarily
fail.").
This brings us to the petitioner's CAT claim. Such a
claim requires an alien to show that, if repatriated, he would
more likely than not be tortured "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); see
Chhay v. Mukasey, 540 F.3d 1, 7 (1st Cir. 2008). The BIA's
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determination that the petitioner did not carry this burden of
proof is unimpugnable.
The petitioner suggests that the Guatemalan government
is unwilling to provide meaningful protection to him. This
unwillingness, he says, is evidenced both by the government's
failure to assist him in his prior travails with the gangs and by
high levels of corruption and ineffectiveness throughout the
government. In his view, this collocation of events makes it more
likely than not that he will face torture, with the government's
consent or acquiescence, should he be returned to his homeland.
In an attempt to flesh out this suggestion, the
petitioner testified that he sought out the police after he
received a threatening letter from a gang. The letter was unsigned
and composed of characters cut out from magazine pages, and the
police advised him that "they couldn't do much" with such limited
information. This inertia, the petitioner says, is a telling
indication that the government would not lift a finger to stop his
torture at the hands of gang members.
The BIA brushed aside this surmise, concluding that the
mere fact that the police, with nothing to go on, were unable to
solve a particular case did not demonstrate their likely consent
or acquiescence to torture. The BIA's reasoning stands on solid
footing: several courts have held that such a conclusion is fully
supportable. See, e.g., Garcia-Milian v. Holder, 755 F.3d 1026,
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1034 (9th Cir. 2014) (concluding that "[e]vidence that the police
were aware of a particular crime, but failed to bring the
perpetrators to justice, is not in itself sufficient to establish
acquiescence in the crime"); Tamara-Gomez v. Gonzales, 447 F.3d
343, 351 (5th Cir. 2006) (finding "failure to apprehend the persons
threatening the alien" insufficient to ground CAT claims); Reyes-
Sanchez v. U.S. Att'y Gen., 369 F.3d 1239, 1243 (11th Cir. 2004)
("That the police did not catch the culprits does not mean that
they acquiesced in the harm."). We join this chorus.
Nor can the petitioner dig himself out of this hole by
his reliance on country conditions reports, which he says
demonstrate the overall corruption and ineffectiveness of the
Guatemalan authorities. These reports do not relieve him of the
obligation to point to specific evidence indicating that he,
personally, faces a risk of torture because of these alleged
shortcomings. Such specificity is a necessary element of a CAT
claim. See Mendez-Barrera, 602 F.3d at 28 (upholding rejection of
CAT claim "because the petitioner failed to proffer any
particularized facts relating to her specific claim that she would
face a likelihood of government-sanctioned torture"); see also
Amouri v. Holder, 572 F.3d 29, 35 (1st Cir. 2009) (extolling
virtues of "particularized evidence"). Inasmuch as the proof
adduced by the petitioner falls well short of this standard, we
conclude that there is substantial evidence to support the BIA's
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dismissal of his CAT claim. See Seng v. Holder, 584 F.3d 13, 20
(1st Cir. 2009).
We need go no further. For the reasons elucidated above,
we deny the petition for judicial review.
So Ordered.
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