Alvizures-Gomes v. Lynch

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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