Filed: Feb. 07, 2012
Latest Update: Feb. 22, 2020
Summary: petition for review.relevant portions of the immigration judge's decision.-5-, the group Ruano Diaz proposed to the immigration judge and the BIA individuals opposed to the criminal gangs in Guatemala.the immigration laws. 663 F.3d at 4;perceived as wealthy or as someone opposed to gang violence.
Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 11-1125
ANA DELIA RUANO DIAZ,
Petitioner,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Lynch, Chief Judge,
Boudin and Lipez, Circuit Judges.
Robert M. Warren on brief for petitioner.
Katherine A. Smith, Trial Attorney, Office of Immigration
Litigation, United States Department of Justice, with whom Tony
West, Assistant Attorney General, and Derek C. Julius, Senior
Litigation Counsel, Office of Immigration Litigation, were on brief
for respondent.
February 7, 2012
LYNCH, Chief Judge. Ana Delia Ruano Diaz, a Guatemalan
national, seeks review of the Board of Immigration Appeals (BIA)
decision denying her application for withholding of removal and
protection under the Convention Against Torture (CAT). We deny her
petition for review.
Ruano Diaz illegally entered the United States in 2004.
Two years later, the Department of Homeland Security instigated
removal proceedings against her under Section 212(a)(6)(A)(i) of
the Immigration and Nationality Act, 8 U.S.C. § 1229a(a)(2); id.
§ 1182(a)(6)(A)(i), for being "present in the United States without
being admitted or paroled,"
id. On October 30, 2008, the
immigration judge denied Ruano Diaz's application for asylum,
withholding of removal, and protection under the CAT, but found she
was eligible for voluntary departure. The BIA affirmed this
decision on September 2, 2010, and remanded for voluntary departure
proceedings. On January 4, 2011, the immigration judge granted
Ruano Diaz voluntary departure.
On February 3, 2011, Ruano Diaz petitioned this court for
a stay of her deportation, which was denied on March 15, 2011. She
then filed a petition for review of the BIA's decision denying her
claims for withholding of removal and protection under the CAT.
Ruano Diaz was born in Guatemala in 1979. At her
immigration hearing, Ruano Diaz testified that although neither she
nor her family encountered any problems while living in Guatemala,
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she heard about criminal gangs intimidating and attacking civilians
without reprimand from the government. Ruano Diaz testified that
she left Guatemala and came to the United States out of a fear of
gang-related violence. Were she and her young daughter, who was
born after Ruano Diaz's entry into the United States, to return to
Guatemala, she testified, they might suffer kidnaping or harm from
the continued rampages of criminal gangs.
The immigration judge denied Ruano Diaz's claim for
withholding of removal,1 finding that she had not demonstrated
under 8 C.F.R. § 208.16(b) that it was "more likely than not" that
she would -- as she claimed -- suffer persecution in Guatemala on
account of her membership in a discrete, recognizable social group.
The judge found that none of the three social groups to which Ruano
Diaz asserted she belonged -- "young women in Guatemala,"2 persons
returning "from the United States who would be perceived as
wealthy," and individuals "opposed to the criminal gangs in
Guatemala" -- qualified as particularized, legally cognizable
social groups for purposes of withholding of removal. In addition,
the judge denied Ruano Diaz's claim for relief under the CAT,
1
The immigration judge also denied Ruano Diaz's claim for
asylum because she failed to file within one year of entering the
United States. See 8 U.S.C. § 1158(a)(2)(B). The BIA noted that
Ruano Diaz did not appeal this denial, and she has not addressed
the denial any further in this Court. Therefore, we deem her
asylum claim waived.
2
Ruano Diaz does not pursue this broad group on appeal.
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finding that she had not demonstrated that it was more likely than
not that she would face government-sanctioned torture if she
returned to Guatemala.
The BIA affirmed the immigration judge's denial of
withholding of removal and relief under the CAT, and affirmed the
lack of a particular social group finding. It additionally found
that Ruano Diaz had not shown she was persecuted in the past and
had not met the "more likely than not" standard for withholding of
removal.
Where, as here, the BIA has written separately while
nonetheless deferring to and affirming the decision of the
immigration judge, we review both the BIA's decision and the
relevant portions of the immigration judge's decision. Kartasheva
v. Holder, 582 F.3d 96, 105 (1st Cir. 2009). We review any
findings of fact made by the BIA and immigration judge under the
highly deferential "substantial evidence" standard. Olujoke v.
Gonzales,
411 F.3d 16, 21 (1st Cir. 2005). We reverse a decision
only if the record would "compel a reasonable factfinder to reach
a contrary determination." Chhay v. Mukasey,
540 F.3d 1, 5 (1st
Cir. 2008); see also 8 U.S.C. § 1252(b)(4)(B). We review any legal
determinations de novo, subject to appropriate principles of
administrative deference. Naeem v. Gonzales,
469 F.3d 33, 36 (1st
Cir. 2006); see also Chevron, U.S.A., Inc. v. Natural Res. Def.
Council, Inc.,
467 U.S. 837, 844 (1984).
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To be eligible for withholding of removal, Ruano Diaz
must show that it is "'more likely than not' that [s]he will be
persecuted on account of a protected ground" if she returns to
Guatemala. Vilela v. Holder, 620 F.3d 25, 28 (1st Cir. 2010)
(quoting Makalo v. Holder,
612 F.3d 93, 96 (1st Cir. 2010)); see
also 8 C.F.R. § 1208.16(b)(2). The five statutorily protected
grounds are race, religion, nationality, political opinion, and
membership in a particular social group. See 8 C.F.R.
§ 1208.16(b).
The BIA has delineated the term "particular social group"
as a group of persons sharing a common, immutable characteristic
that makes the group socially visible and sufficiently particular.
Faye v. Holder, 580 F.3d 37, 41 (1st Cir. 2009); In re C-A-, 23 I.
& N. Dec. 951, 959-60 (B.I.A. 2006). We have upheld this
delineation of the term's scope as reasonable. See Mendez-Barrera
v. Holder,
602 F.3d 21, 25-26 (1st Cir. 2010).
Substantial evidence supports the agency's determination
that Ruano Diaz failed to show that were she to return to
Guatemala, it is more likely than not she would suffer persecution
on account of her membership in a particular social group.
In her petition, Ruano Diaz proposes only two social
groups -- "persons of perceived wealth returning [to Guatemala]
from the United States" and "young females targeted by the criminal
gangs" in Guatemala. We interpret the latter to be equivalent to
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the group Ruano Diaz proposed to the immigration judge and the BIA
-- individuals "opposed to the criminal gangs in Guatemala." Our
cases have already rejected Ruano Diaz's proposed groups. See,
e.g., Garcia-Callejas v. Holder, No. 11-1084, 2012 WL 178381, at
*1-2 (1st Cir. Jan. 24, 2012) (per curiam) (to be published in
F.3d).
In Socop v. Holder, 407 F. App'x 495 (1st Cir. 2011), we
held that "gang opposition," including a group of individuals "who
expressly oppose the practices and values of [a particular] gang,"
does not constitute a particularized social group protected under
the immigration laws.
Id. at 498. We have also rejected attempts
to recognize a particular social group comprised of individuals
perceived to be wealthy, who are returning to Guatemala after
living in the United States. See Sicaju-Diaz v. Holder,
663 F.3d
1, 4 (1st Cir. 2011); Larios v. Holder,
608 F.3d 105, 109 (1st Cir.
2010). In Sicaju-Diaz, we said that "nothing indicates that in
Guatemala individuals perceived to be wealthy are persecuted
because they belong to a social class or
group." 663 F.3d at 4;
see also Lopez-Castro v. Holder,
577 F.3d 49, 54 (1st Cir. 2009)
(holding that petitioner's argument that "he would be exposed to an
increased risk of future attacks by gang members in Guatemala
because he will be perceived as wealthy . . . fails to establish an
objectively reasonable basis for a fear of future persecution
premised on a statutorily protected ground"). As a result, Ruano
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Diaz has failed to meet her burden of demonstrating eligibility for
withholding of removal.
The BIA also supportably found that Ruano Diaz failed to
meet her burden for relief under the CAT, since she has not
established that it is more likely than not that she would be
subject to torture upon her return to Guatemala. See 8 C.F.R.
§ 1208.16(c)(2). Ruano Diaz submitted essentially the same
evidence of fear of criminal gang violence on account of being
perceived as wealthy or as someone opposed to gang violence. As
the immigration judge and BIA found, this evidence did not surmount
the hurdle for establishing eligibility under the CAT or the
immigration statutes.
Accordingly, the petition for review is denied.
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