Diaz Ruano v. Holder , 420 F. App'x 19 ( 2011 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 10-1876
EDUARDO DE JESÚS DÍAZ RUANO,
Petitioner,
v.
ERIC H. HOLDER, JR., ATTORNEY GENERAL,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF
THE BOARD OF IMMIGRATION APPEALS
Before
Boudin, Selya and Howard,
Circuit Judges.
Robert M. Warren on brief for petitioner.
Tony West, Assistant Attorney General, Civil Division, John S.
Hogan, Senior Litigation Counsel, and Robbin K. Blaya, Trial
Attorney, Office of Immigration Litigation, on brief for
respondent.
April 28, 2011
Per Curiam. Eduardo de Jesús Díaz Ruano, a Guatemalan
national, seeks judicial review of an order of the Board of
Immigration Appeals (BIA) denying his application for withholding
of removal and protection under Article III of the United Nations
Convention Against Torture (CAT). After careful consideration, we
deny the petition.
We draw the facts largely from the petitioner's testimony
before the immigration judge (IJ).
During his formative years, the petitioner lived in the
village of San Pedro Ayampuc, where he worked on his father's farm.
Over time, criminal gangs became an insidious influence in the
region. In 2003, one such gang turned its attention to the
petitioner's village.
The gang tried unsuccessfully to recruit one of the
petitioner's friends. The gang then threatened to beat the friend
if he did not join. The recalcitrant recruit responded by fleeing
the country.
The petitioner feared that the gang, members of which
frequently had seen him and his friend together, would focus on him
next. This fear became a reality; the gang confronted the
petitioner to determine the friend's whereabouts. The petitioner
would not divulge this information, and the gang threatened him
with violence. The petitioner reported this incident to the
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police. They paid him a visit but told him that there was not
enough evidence to pursue the matter.
When the gang beat a friend so severely that he required
hospitalization,1 the petitioner, who was then eighteen years of
age, decided to flee to the United States. He believed that the
gangs were ubiquitous throughout Guatemala and feared that he would
not find a safe haven elsewhere in his homeland.
The petitioner entered the United States in 2003, without
inspection. Federal authorities commenced removal proceedings
against him in 2006. He conceded removability and cross-applied
for withholding of removal and protection under the CAT. He did
not seek asylum, presumably because the one-year deadline had
passed by then. See 8 U.S.C. § 1158(a)(1), (2)(B).
After an evidentiary hearing, the IJ denied the cross-
application, holding that the petitioner was not eligible for
either withholding of removal or protection under the CAT.
The petitioner's administrative appeal came to naught.
The BIA, on de novo review, confirmed that he had not demonstrated
eligibility for either form of relief. This timely petition for
judicial review followed.
1
The record is unclear as to the details of this incident and
whom it involved.
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The petitioner challenges both facets of the BIA's ukase.
We address his claims sequentially. We start, however, with the
standard of review.
We review the agency's factual findings through the prism
of the substantial evidence rule. INS v. Elias-Zacarias, 502 U.S.
478, 481 (1992). Viewed through that prism, we will accept those
findings unless the record as a whole would compel a reasonable
factfinder to reach a contrary conclusion. Id. Questions of law
engender de novo review, with some deference to the BIA's
interpretation of statutes and regulations that fall within its
purview. Elien v. Ashcroft, 364 F.3d 392, 396-97 (1st Cir. 2004).
The first of the petitioner's assignments of error
implicates the denial of withholding of removal. The relevant
legal framework is familiar.
An alien who seeks withholding of removal may not be
deported if, upon repatriation, his life or freedom would be
threatened on account of any one of five statutorily protected
grounds: race, religion, nationality, political opinion, or
membership in a social group. See 8 U.S.C. § 1231(b)(3)(A); 8
C.F.R. § 1208.16(b); Pulisir v. Mukasey, 524 F.3d 302, 308 (1st
Cir. 2008). The alien bears the burden of showing that there is a
"clear probability" that such persecution will transpire.2 INS v.
2
In the withholding of removal context, a "threat to life or
freedom" is functionally equivalent to "persecution" in the asylum
context, Wiratama v. Mukasey, 538 F.3d 1, 3 (1st Cir. 2008), and we
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Stevic, 467 U.S. 407, 430 (1984). This entails a showing of a
prospect of serious harm or jeopardy, not mere discomfiture,
unpleasantness, ordinary harassment, or unfair treatment. López
Pérez v. Holder, 587 F.3d 456, 461 (1st Cir. 2009); López de
Hincapie v. Gonzales, 494 F.3d 213, 217 (1st Cir. 2007). It also
entails a showing of some connection between the government and the
anticipated harm, whether by participation, acquiescence, or
condonation. See, e.g., López Pérez, 587 F.3d at 462; Raza v.
Gonzales, 484 F.3d 125, 129 (1st Cir. 2007).
We turn now from the general to the specific. The
petitioner asserts that he fears persecution because of his
membership in a social group composed of "young male[s] sought out
for information and recruitment by the criminal gang of Guatemala."
As we explain below, this definition does not describe a social
group within the taxonomy of the statute.
To begin, the BIA has determined that members of a
cognizable social group must share one or more common, immutable
characteristics that make the group sufficiently particular and
socially visible. Matter of E-A-G-, 24 I. & N. Dec. 591, 593-94
(BIA 2008); Matter of S-E-G-, 24 I. & N. Dec. 579, 582-83 (BIA
2008); see generally Matter of Acosta, 19 I. & N. Dec. 211, 232-34
(BIA 1985). We have pronounced this requirement an acceptable
use the terms interchangeably. The required degree of probability
is, however, higher for withholding of removal. Id.
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gloss on the statutory language. See Faye v. Holder, 580 F.3d 37,
41 (1st Cir. 2009); Scatambuli v. Holder, 558 F.3d 53, 59 (1st Cir.
2009); Da Silva v. Ashcroft, 394 F.3d 1, 5 (1st Cir. 2005). The
group proposed by the petitioner does not satisfy this criterion.
Phrases that are open-ended and subject to
interpretation, such as "recruitment" potential and "information"
that might be attractive to a gang, are not sufficiently particular
to describe a cognizable social group. See Ahmed v. Holder, 611
F.3d 90, 94 (1st Cir. 2010). Such loose and inherently subjective
descriptions do not "permit an accurate separation of members from
non-members." Id. Because their boundaries are neither clearly
demarcated nor self-elucidating, they do not delimit a cognizable
social group. See Mendez-Barrera v. Holder, 602 F.3d 21, 27 (1st
Cir. 2010); see generally Faye, 580 F.3d at 41-42 (noting that
terms such as "wealthy" and "affluent" are too vague to define a
social group).
Moreover, the age parameters ("young male[s]") are
similarly lacking in precision. One who is "young" in the eyes of
one observer may not be "young" in the eyes of another observer.3
In addition, the age parameters span a period of several years, and
the petitioner makes no effort to account for the gap between his
difficulties with the gang (at age eighteen) and his age at
3
For example, a twenty-five year old may be "young" in the
eyes of an octogenarian, but "old" in the eyes of a third-grade
student.
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possible repatriation (he is now in his mid-twenties). See Matter
of S-E-G-, 24 I. & N. Dec. at 583-84.
To cinch matters, the petitioner has not demonstrated
that his putative social group has the requisite social visibility.
In order to satisfy the requirements for a social group, an alien
must show that the relevant community (here, Guatemala) views the
described group as a discrete class. See Castañeda-Castillo v.
Holder, ___ F.3d ___, ___ (1st Cir. 2011) [No. 09-1847, slip op. at
20]; Santos-Lemus v. Mukasey, 542 F.3d 738, 746 (9th Cir. 2008).
A social group must be more than an empty description or string of
words; it must be a group of people publicly recognized as such in
the relevant community. See Ahmed, 611 F.3d at 94. The petitioner
has failed to make this showing with respect to "young male[s]
sought out for information and recruitment."
If more were needed — and it plainly is not — the
petitioner's claim for withholding of removal is deficient in
another respect: he has failed to tie mistreatment at the hands of
the gang to the Guatemalan government. He makes no assertion that
the government is directly responsible for the activities of the
gang. Thus, he must show governmental acquiescence: that the
government is either unwilling or unable to control the gang's
misconduct. See Jorgji v. Mukasey, 514 F.3d 53, 57 (1st Cir.
2008); Orelien v. Gonzales, 467 F.3d 67, 72 (1st Cir. 2006).
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The only evidence bearing on this point is the
petitioner's testimony that when he notified the police of his
confrontation with the gang, their response was stymied by a
professed lack of evidence. Building on this porous foundation,
the petitioner urges us to conclude that the police acquiesced in
the gang's conduct.
We resist that exhortation. The vignette relied on by
the petitioner does not compel the conclusion that the government
was either unable or unwilling to control the gang. It is at least
as plausible to infer that the police were ready, willing, and able
to follow up, but could not do so with the scanty information that
the petitioner was able to provide. A reasonable factfinder would
not be compelled to conclude that the police condoned the gang's
mischief. The BIA's contrary conclusion is, therefore, supported
by substantial evidence. See Morgan v. Holder, 634 F.3d 53, 59
(1st Cir. 2011).
This brings us to the petitioner's second assignment of
error: the rejection of his CAT claim. To prevail on such a claim,
an alien must show that, more likely than not, he will be tortured
upon repatriation. 8 C.F.R. § 1208.16(c)(2); Romilus v. Ashcroft,
385 F.3d 1, 8 (1st Cir. 2004). For CAT purposes, "torture" is any
act that inflicts severe physical or mental pain, "when such pain
or suffering is inflicted by or at the instigation of or with the
consent or acquiescence of a public official or other person acting
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in an official capacity." 8 C.F.R. § 1208.18(a); see Chhay v.
Mukasey, 540 F.3d 1, 7 (1st Cir. 2008). Consequently, the alien
must show not only that the feared harm would amount to torture but
also that it would have a legally sufficient nexus to the
government.
We need not probe these points. In this case, the
petitioner has made no meaningful effort to satisfy the applicable
standard. While his brief makes a conclusory reference to the
insupportability of the BIA's ruling denying him CAT protection, it
is devoid of any developed argumentation regarding this claim.
Given this failing, we deem the claim abandoned.4 See Pan v.
Gonzales, 489 F.3d 80, 87 (1st Cir. 2007); Jiang v. Gonzales, 474
F.3d 25, 32 (1st Cir. 2007); see also United States v. Zannino, 895
F.2d 1, 17 (1st Cir. 1990).
We need go no further. For the reasons elucidated above,
we deny the petition for judicial review.
So Ordered.
4
We note in passing that in view of the petitioner's
inability to show either governmental involvement or acquiescence
in the gang's conduct, see text supra, it seems clear that, on this
record, he could not in any event show the requisite link between
the claimed "torture" and the Guatemalan government.
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