NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 14 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AXEL OMAR MONTES DE OCA- No. 16-70870
BOLANOS,
Agency No. A206-464-032
Petitioner,
v. MEMORANDUM*
MATTHEW G. WHITAKER, Acting
Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted December 18, 2018**
San Francisco, California
Before: GILMAN,*** PAEZ, and OWENS, Circuit Judges.
Petitioner Axel Omar Montes De Oca-Bolanos (Montes), a native and
citizen of Guatemala, alleges that he would be persecuted and tortured by the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Mara-18 gang if he is removed to Guatemala. An immigration judge (IJ) denied
Montes’s application for asylum, withholding of removal, and protection under the
Convention Against Torture (CAT). The Board of Immigration Appeals (BIA)
affirmed.
On appeal, Montes argues that the BIA erred in concluding that (1) “current
and former bus drivers” is not a “particular social group” eligible for asylum and
withholding of removal, and (2) he does not qualify for protection under the CAT.
For the reasons set forth below, we DENY Montes’s petition for review.
I. Montes’s asylum claim
Montes is ineligible for asylum because he has not established persecution
on account of a protected ground. See 8 U.S.C. § 1101(a)(42)(A). If an applicant
requests asylum based on “membership in a particular social group,” he or she
must establish that the group is “(1) composed of members who share a common
immutable characteristic, (2) defined with particularity, and (3) socially distinct
within the society in question.” Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir.
2016) (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 277, 237 (BIA 2014)).
Montes is ineligible for asylum because “current and former bus drivers” is not a
cognizable particular social group.
This court has repeatedly declined to recognize one’s employment as a
particular social group because a person’s job is generally not an immutable or
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fundamental characteristic. See, e.g., Ochoa v. Gonzales, 406 F.3d 1166, 1170-71
(9th Cir. 2005) (stating that a group of “business owners” did not share an “innate
characteristic”), abrogated on other grounds by Henriquez-Rivas v. Holder, 707
F.3d 1081 (9th Cir. 2013) (en banc). Being a bus driver is not an immutable
characteristic, nor is it fundamental to Montes’s identity or conscience.
See Donchev v. Mukasey, 553 F.3d 1206, 1216 (9th Cir. 2009) (stating that a
“common immutable characteristic” is an attribute a person “cannot change, or
should not be required to change because it is fundamental to their individual
identities or consciences” (quoting Matter of Acosta, 19 I & N. Dec. 211, 233 (BIA
1985)).
Montes contends, however, that his status as a former bus driver is an
immutable characteristic that can form the basis of a particular social group. He
argues that “even if [he] decides to change professions, he will always remain a
former bus driver who failed to pay his extortion demand.” We are not persuaded.
According to the record, gangs make extortion demands by calling the bus stations
or by boarding buses and attacking drivers. There is no evidence that gangs target
former bus drivers, nor any evidence that Montes would be perceived as a former
bus driver by Guatemalan society or by the gangs.
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II. Montes’s withholding-of-removal claim
Montes next seeks withholding of removal. But because Montes has not
established eligibility for asylum, he necessarily has not fulfilled the higher
evidentiary burden of proof required for withholding of removal. See
Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir. 2000).
III. Montes’s CAT claim
Montes finally seeks CAT protection. To qualify for protection under the
CAT, an applicant must show that he or she will more than likely be tortured “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. § 1208.18(a)(1).
“Acquiescence of a public official requires that the public official, prior to the
activity constituting torture, have awareness of such activity and thereafter breach
his or her legal responsibility to intervene to prevent such activity.” Id. at
§ 1208.18(a)(7). “[G]eneral ineffectiveness on the government’s part to
investigate and prevent crime will not suffice to show acquiescence.”
Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016).
The record does not compel the conclusion that Montes would more than
likely be tortured with the consent or acquiescence any Guatemalan official. In
fact, Montes submitted evidence with photographs showing the Guatemalan police
arresting suspected gang members. The record also shows that the Guatemalan
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government uses legislative action, reforms, and other programs to combat gang
activity and violence. The BIA therefore did not err in denying Montes protection
under the CAT.
IV. Conclusion
For all of the reasons set forth above, we DENY Montes’s petition for
review.
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