NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-4339
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MINNOR ELIGIO PICON-ARAGON,
Petitioner
v.
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent
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PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Agency No. A094-930-247
Immigration Judge: Honorable Margaret R. Reichenberg
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Submitted Under Third Circuit LAR 34.1(a)
September 13, 2011
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Before: RENDELL, JORDAN and BARRY, Circuit Judges
(Opinion Filed: September 15, 2011 )
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OPINION
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BARRY, Circuit Judge
Minnor Eligio Picon-Aragon, a native of Guatemala, challenges the denial by the
Board of Immigration Appeals (BIA) of his motion to reopen and remand his asylum
proceedings.1 At issue is whether he failed to demonstrate past, or a well-founded fear of
future, persecution on account of membership in a particular social group – to wit, being a
particularly vulnerable target of Guatemalan gangs, or “maras,” because of his age,
wealth, and where he lived. We will deny his petition for review.
I. Background
Picon-Aragon, now in his early twenties, entered the United States without
inspection in April 2007, having fled Guatemala because of problems that he attributed to
the maras. Specifically, in San Geronimo in 2006, he was robbed after leaving a bank,
and the home that he shared with his aunt was burglarized. In early 2007, while returning
to his own apartment in Guatemala City, gang members assaulted him and told him that
because they controlled the neighborhood, he would have to pay them to live there.
Picon-Aragon believed that the Guatemala City assailants were gang members, based on
slogans that they shouted, hand signs that they flashed, and particular tattoos that they
1
Picon-Aragon‟s counseled brief asserts that he petitions for review of a March 2009
BIA decision affirming the Immigration Judge‟s (IJ) denial of his asylum application.
The government asserts that because, subsequent to that decision, he filed a motion to
reopen and remand his proceedings, the instant petition in fact seeks review of the BIA‟s
October 2009 denial of that motion. See Administrative Record (AR) at 3, 6-11.
Jurisdiction in this case turns on whether the instant petition is construed as appropriately
seeking review of the BIA‟s March 2009 dismissal, on the merits, of Picon-Aragon‟s
appeal of the IJ‟s order of removal, see 8 C.F.R. § 1003.1(b), or as challenging the BIA‟s
denial of his subsequent motion to reopen and remand his proceedings, id. § 1003.2(c).
Given that his putative petition for review of the BIA‟s March 2009 decision appears only
in the Appendix submitted by his counsel, not in this Court‟s case management /
electronic case filing system, and that counsel has not filed a Reply Brief challenging the
government‟s assertion that no such direct petition for review was filed, we will treat the
instant petition as challenging only the BIA‟s denial of his motion to reopen and remand.
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sported. He knew nothing about the identities of the San Geronimo assailants.
On these facts, in October 2007 Picon-Aragon filed an application for asylum on
the premise that he is vulnerable to harm if returned to Guatemala due to his membership
in the “particular social group” of young, wealthy men in their late teens or early twenties
who are targeted by the maras for extortion. The IJ denied his petition for asylum,
withholding of removal, and protection under the United Nations Convention Against
Torture in May 2008, and the BIA dismissed his subsequent appeal in March 2009. Most
pertinent to the instant petition, both the IJ and the BIA concluded, among other things,
that Picon-Aragon‟s asserted basis for relief was non-cognizable because the particular
social group that he has identified as the basis for his persecution is overly broad and does
not turn on an immutable characteristic.
II. Discussion
This Court exercises jurisdiction over all final orders of removal pursuant to 8
U.S.C. § 1252(a). We apply a standard of review that “is highly deferential: we review
the denial of a motion to reopen for abuse of discretion[, such that d]iscretionary
decisions of the Board will not be disturbed unless they are found to be arbitrary,
irrational, or contrary to law.” Guo v. Ashcroft, 386 F.3d 556, 562 (3d Cir. 2004) (internal
quotation marks and citations omitted). “As a general rule, motions to reopen are granted
only under compelling circumstances.” Id. at 561.
The instant petition principally argues that the IJ and the BIA applied the wrong
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evidentiary standard in evaluating Picon-Aragon‟s claims, and that the BIA applied the
wrong legal standard vis-à-vis the necessary predicate for asylum of proving membership
in a particular social group that is cause for persecution, contending: (1) that Guatemala‟s
government acts in concert with the maras; and/or (2) that it is incapable of protecting, or
is unwilling to protect, citizens against them; and/or (3) that the maras “function as [a]
societal framework” and “a political force to be reckoned with,” such as to constitute, not
a mere “criminal element,” but a “criminal sovereignty.” Petitioner‟s Br. at 9. These are
essentially the same arguments that Picon-Aragon made to the IJ, as well as to the BIA –
a point that the BIA noted when it denied his motion to reopen and remand, together with
the fact he did not allege any additional, new facts, as he was required to do. See AR at 3
(citing 8 C.F.R. § 1003.2(b)(1) & (c)(1) (providing that motions for reconsideration must
identify specific errors of fact or law in the challenged decision and be supported by
pertinent authority, and that motions to reopen must present material evidence that was
unavailable and that could not have been discovered or presented at the former hearing)).
Picon-Aragon‟s instant petition is, likewise, without merit. The BIA properly
concluded that his motion to reopen and remand did not advert to previously unavailable
evidence, identify errors of fact or law other than in conclusory terms, or cite pertinent
authority. See id. Indeed, his brief before this Court does not even address the BIA‟s
denial of that motion, much less challenge that denial as an abuse of discretion. As such,
he effectively has waived any basis for relief here – the availability of relief here itself
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being dubious, at best.2 See United States v. Hoffecker, 530 F.3d 137, 162 (3d Cir. 2008)
(arguments in an opening brief that do not cite appropriate authority or relevant parts of
the record thereby fail to properly raise an appellate issue, thus constituting waiver).
III. Conclusion
For these reasons, and because the remainder of Picon-Aragon‟s arguments are
without merit, we will deny the petition for review.
2
Even if we construed the instant petition as properly challenging the BIA‟s dismissal
of Picon-Aragon‟s appeal of the IJ‟s decision on the merits, it still would fail. Picon-
Aragon appears to have been the victim of randomized (albeit deplorable) street thug
robbery. He has not shown, however, that he is “„unable or unwilling‟ to return to
[Guatemala] „because of persecution or a well-founded fear of persecution on account of
… membership in a particular social group,‟” Vente v. Gonzales, 415 F.3d 296, 300 (3d
Cir. 2005) (quoting 8 U.S.C. § 1101(a)(42)(A)), which the BIA has defined as meaning a
group “defined by a common, immutable characteristic that the group members „either
cannot change, or should not be required to change because it is fundamental to their
individual identities or consciences.‟” Valdiviezo-Galdamez v. Att’y Gen., 502 F.3d 285,
291 (3d Cir. 2007) (quoting Fatin v. INS, 12 F.3d 1233, 1240 (3d Cir. 1993)). Here, it
was proper to conclude that Picon-Aragon‟s claimed basis for relief is too broad and
malleable – i.e., that he is targeted for extortion by local maras because he is a young,
wealthy man. Neither youth, wealth, nor place of residence are immutable characteristics.
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