Ramirez Perez v. Barr , 934 F.3d 47 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 18-2114
PEDRO ANTONIO RAMÍREZ-PÉREZ,
Petitioner,
v.
WILLIAM P. BARR,
ATTORNEY GENERAL OF THE UNITED STATES,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Howard, Chief Judge,
Torruella and Selya, Circuit Judges.
Rachel L. Rado and The Law Office of Rachel L. Rado, LLC on
brief for petitioner.
Juria L. Jones, Trial Attorney, U.S. Department of Justice,
Civil Division, Office of Immigration Litigation, Joseph H. Hunt,
Assistant Attorney General, Civil Division, and Jessica E. Burns,
Senior Litigation Counsel, Office of Immigration Litigation, on
brief for respondent.
August 13, 2019
TORRUELLA, Circuit Judge. Pedro Antonio Ramírez-Pérez
("Ramírez") seeks review of a Board of Immigration Appeals ("BIA")
order affirming the Immigration Judge's ("IJ") denial of his
applications for asylum, withholding of removal, and protection
under the Convention Against Torture ("CAT"). We deny Ramírez's
petition for review.
I.
The following facts are derived from Ramírez's
immigration court testimony, which the IJ found credible.
Ramírez was born in Guatemala on June 29, 1994. There,
he worked at a rice factory and through this job earned a higher
wage than many in his community. In 2014, Ramírez began an eight-
month relationship with a woman named Delmy Rodríguez. Ramírez
ended this relationship after learning that Delmy was also
romantically involved with a member of the Barrio 18 gang. Ramírez
left Guatemala and entered the United States in May 2015, fearing
for his life after three encounters with presumed Barrio 18 gang
members in the preceding months. According to Ramírez, the gang
members decided to assail him after "[t]hey realized [he] was
making a lot of money where [he] was working."
Ramírez's first encounter with gang members occurred
early in February 2015, when four armed and masked gang members
approached him and demanded his money. The second incident came
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just a week later as Ramírez was returning home from work. This
time, two men confronted Ramírez and again demanded his money. A
physical altercation took place during this second encounter, but
according to Ramírez his assailants did not "hurt [him] roughly."
The third and final incident occurred around April or May 2015.
Gang members again approached Ramírez and told him that they would
make him disappear if he did not disappear on his own. The
assailants also told Ramírez not to get involved with their women
-- a remark Ramírez interpreted as a reference to his relationship
with Delmy. Ramírez did not report any of these incidents to the
police.
Ramírez entered the United States without inspection on
May 17, 2015 and applied for asylum the following month. He
appeared before an IJ on October 11, 2017. Ramírez testified that
he feared returning to Guatemala because gang members would pursue
him to do harm since he "had previously dated a girl, Delmy . . .,
who at the same time started dating a member of the [Barrio 18]
gang." Despite finding his testimony to be credible, the IJ denied
Ramírez's application for asylum, withholding of removal, and
protection under the CAT. The IJ found that Ramírez's three
encounters with gang members did not amount to persecution and
that he did not belong to a cognizable "particular social group"
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for purposes of refugee status. Ramírez then appealed to the BIA,
which dismissed his appeal on October 9, 2018.
II.
"When, as here, the BIA adopts and affirms . . . the
IJ's ruling and further justifies the IJ's conclusions, we review
both the BIA's and IJ'S opinions." Nako v. Holder, 611 F.3d 45,
48 (1st Cir. 2010). We review any legal conclusions de novo,
"with appropriate deference to the agency's interpretation of the
underlying statute in accordance with administrative law
principles." Rivas-Durán v. Barr, 927 F.3d 26, 30 (1st Cir. 2019)
(quoting Vásquez v. Holder, 635 F.3d 563, 565 (1st Cir. 2011)).
"By contrast, we review factual findings under the deferential
'substantial evidence standard,' meaning that we will not disturb
such findings if they are 'supported by reasonable, substantial,
and probative evidence on the record considered as a whole.'" Id.
(quoting Aguilar-Escoto v. Sessions, 874 F.3d 334, 336-37 (1st
Cir. 2017)).
A.
To obtain asylum, an applicant must establish that he
qualifies as a refugee under section 101(a)(42)(A) of the
Immigration and Nationality Act ("INA"). 8 U.S.C. § 1101, 1158.
A refugee is someone who is "unable or unwilling" to return to his
country of origin "because of persecution or a well-founded fear
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of persecution on account of race, religion, nationality,
membership in a particular social group, or political opinion."
8 U.S.C. § 1101(a)(42)(A) (emphasis added). The question of
whether a proposed classification qualifies as a "particular
social group" for asylum purposes is a question of law. 8 C.F.R.
§ 1003.1(d)(3)(ii); see also Cantarero v. Holder, 734 F.3d 82, 84
(1st Cir. 2013). Because Ramírez's "membership in a particular
social group is an indispensable element of [his] claim[], our
analysis begins and ends with it." Rivas-Durán, 927 F.3d at 30.
B.
The centerpiece of Ramírez's argument is that he is
entitled to asylum because of his belonging to a "particular social
group" made up by "males who have had romantic involvement with
the partners of drug dealers." This proposed social group is
somewhat different from the one that Ramírez presented to the
agency, which was "people who have been romantically involved with
the partners of cartel leaders and have been targeted for
assassination on that basis, and who cannot depend on the
Guatemalan police for help." And it differs from the asserted
social group that was the focus of much of the briefing, as well
as of the agency's rulings: "individuals who were romantically
involved with a gang member's partner."
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To be cognizable for purposes of asylum, a social group
must be: "(1) composed of members who share a common immutable
characteristic, (2) defined with particularity, and (3) socially
distinct within the society in question." Rivas-Durán, 927 F.3d
at 30-31 (quoting Vega-Ayala v. Lynch, 833 F.3d 34, 39 (1st Cir.
2016)). "An immutable characteristic is one that 'members of the
group either cannot change, or should not be required to change
because it is fundamental to their individual identities or
consciences.'" Vega-Ayala, 833 F.3d at 39 (quoting Mayorga-Vidal
v. Holder, 675 F.3d 9, 14 (1st Cir. 2012)). The particularity
requirement, in turn, is met if the group is "'discrete and ha[s]
definable boundaries -- it must not be amorphous, overbroad,
diffuse or subjective.'" Paiz-Morales v. Lynch, 795 F.3d 238, 244
(1st Cir. 2015) (citing Matter of M-E-V-G-, 26 I. & N. Dec. 227,
239 (BIA 2014)). "Finally, social distinction refers to 'whether
those with a common immutable characteristic are set apart, or
distinct, from other persons within the society in some significant
way.'" Rivas-Durán, 927 F.3d at 31 (quoting Matter of M-E-V-G-,
26 I. & N. at 238). To meet this requirement, Ramírez's proposed
group must be perceived as such within Guatemalan society. See
Pérez-Rabanales v. Sessions, 881 F.3d 61, 66 (1st Cir. 2018).
Ramírez asserts that his proposed protected group of men
who have been romantically involved with the partners of drug
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dealers "has all the elements of a cognizable social group"
entitled to asylum protection, namely, "immutability of a past
experience, social visibility, and sufficient particularity."
Ramírez explains that his belonging in the group is immutable
because "he cannot undo the fact that he was ever" in a romantic
relationship with Delmy, who was also involved with drug dealers.
But Ramírez fails to discuss how his proposed group fulfills the
"social visibility" and "particularity" requirements to be
cognizable for asylum.
Despite Ramírez's unhelpful briefing on this issue,
"[w]e can pass over the [immutability] and [social distinction]
requirements, because even if the petitioner could show that he
shared an immutable characteristic with a socially distinct group,
he failed to define the purported group with the requisite
particularity." Paiz-Morales, 795 F.3d at 244. Almost each
component of Ramírez's suggested classification lacks
particularity. The group's definition sets no guidelines on what
extent of physical and/or emotional contact rises to the level of
"romantic involvement." It also tells us nothing about what sort
of relationship makes someone the "partner" of a "cartel leader"
or of a "gang member." Its reference to "cartel leaders" is
similarly indefinite. 1 Thus, Ramírez's proposed group lacks
1 Our analysis here focuses on "cartel leaders" because, in his
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definable boundaries and "is by definition too amorphous and
overbroad to be particular." Id.
The BIA accordingly did not err in concluding -- like
the IJ had done before -- that Ramírez is ineligible for asylum
because he lacks membership in a cognizable "particular social
group." Our resolution of this issue also disposes of Ramírez's
withholding of removal claim. See id. at 245 ("A petitioner who
cannot clear the lower hurdle for asylum will necessarily fail to
meet the higher bar for withholding of removal.").
C.
Our final task is to consider whether substantial
evidence in the record supports the BIA's finding that Ramírez is
not entitled to protection under the CAT. We find that it does.
To be granted deferral of removal under the CAT, the
burden is on the petitioner "to establish that it is more likely
than not that . . . he would be tortured if removed to the proposed
country of removal." 8 C.F.R. § 208.16(c)(2) (8 C.F.R. § 1208.16
(c)(2)). Torture is "any act by which severe pain or suffering
. . . is intentionally inflicted on a person . . . at the
proceedings before the agency, Ramírez only included "cartel
leaders" -- and not "drug dealers" -- within his proposed
particular social group. See Granada-Rubio v. Lynch, 814 F.3d 35,
39 (1st Cir. 2016) ("To the extent the social group proposed [on
judicial review] was not proposed to the BIA, it is unexhausted.").
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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) & (3) (8 C.F.R. §§ 1208.18 (a)(1) & (3)). For
there to be government acquiescence, the "public official, prior
to the activity constituting torture, [must] have awareness of
such activity and thereafter breach his or her legal responsibility
to intervene to prevent such activity." 8 C.F.R. § 208.18 (a)(7)
(8 C.F.R. § 1208.18 (a)(7)).
In assessing whether it is more likely than not that a
petitioner would be tortured in the proposed country of removal,
"all evidence relevant to the possibility of future torture shall
be considered, including . . .: (1) [e]vidence of past torture
inflicted upon the applicant; (2) [e]vidence that the applicant
could relocate to a part of the country of removal where he is not
likely to be tortured; (3) [e]vidence of gross, flagrant or mass
violations of human rights within the country of removal, where
applicable; and (4) [o]ther relevant information regarding
conditions in the country of removal." 8 C.F.R. § 208.16 (c)(3)
(8 C.F.R. § 1208.16(c)(3)).
Ramírez argues that "it is more likely than not that he
would be tortured if he were removed to Guatemala." Without much
explanation, he avers that the "record demonstrates . . . Barrio
18 [gang members] would target [him] for torture, and that . . .
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the Guatemalan government acquiesces to torture." This is so, he
alleges, because "both gang members and [the] Guatemalan
government are involved in torture," and "criminal gangs have
infiltrated law enforcement, government, and the judiciary."
It was Ramírez's burden to establish that there is a
clear probability he will be tortured upon his repatriation to
Guatemala by the active participation or willful blindness of
Guatemalan government authorities. See Gurung v. Lynch, 618 F.
App'x 690, 696 (1st Cir. 2015). Ramírez failed to satisfy this
burden. His three encounters with the gang members -- during
which, as he testified before the IJ, he experienced no significant
physical harm -- did not amount to torture. See 8 C.F.R. §§ 208.18
(a)(1) & (3) (8 C.F.R. §§ 1208.18 (a)(1) & (3)) (defining torture
as an act of "severe pain or suffering"). Moreover, Ramírez did
not report any of these three encounters to the police, and the
record is otherwise devoid of evidence explaining with reasonable
certainty how he would experience future torture at the hands or
with the acquiescence of government officials. Ramírez's reliance
on State Department and other country reports discussing the
brutality and pervasiveness of gang violence in Guatemala does not
allow him to surmount this hurdle. See Amouri v. Holder, 572 F.3d
29, 35 (1st Cir. 2009) (noting that, although such reports are
helpful to assess CAT claims, they "do not necessarily override
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petitioner-specific facts"). As a result, the evidence before us
about the likelihood that Ramírez will be tortured upon his return
to Guatemala is insufficient.
III.
Given the foregoing, we deny Ramírez's petition for
judicial review.
Denied.
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