Vargas v. Holder, Jr. , 482 F. App'x 597 ( 2012 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 11-1680
ROMELIA AMERICA VARGAS and WALTER ANTONIO VARGAS,
Petitioners,
v.
ERIC H. HOLDER, JR., Attorney General,
Respondent.
PETITION FOR REVIEW OF AN ORDER OF THE
BOARD OF IMMIGRATION APPEALS
Before
Stahl, Lipez, and Howard, Circuit Judges.
Stephen M. Born and Mills & Born on brief for petitioners.
Anthony J. Messuri, Trial Attorney, United States Department
of Justice, Civil Division, Office of Immigration Litigation, Tony
West, Assistant Attorney General, Civil Division, and Leslie McKay,
Assistant Director, Office of Immigration Litigation, on brief for
respondent.
June 7, 2012
STAHL, Circuit Judge. Petitioners Romelia America Vargas
and her husband, Walter Antonio Vargas, seek our review of an order
of the Board of Immigration Appeals (BIA) affirming the denial of
their applications for asylum and withholding of removal. As the
Immigration Judge (IJ) in this case noted, the Vargases “have
presented an extraordinarily compelling case of suffering.”
Unfortunately, however, what the Vargases experienced in their
native country of Guatemala does not make them eligible for asylum
or withholding of removal in the United States.
In order to qualify for asylum, an applicant must
demonstrate that he has experienced past persecution or has a
well-founded fear of future persecution on account of his race,
religion, nationality, membership in a particular social group, or
political opinion. See 8 U.S.C. § 1101(a)(42)(A). The standard
for withholding of removal is even higher; the applicant must show
that it is more likely than not that he would be subject to
persecution on account of an enumerated ground if he were
repatriated. See id. § 1231(b)(3); Mayorga-Vidal v. Holder, 675
F.3d 9, 13 (1st Cir. 2012). The Vargases applied for asylum and
withholding of removal, claiming that they were persecuted, and
face future persecution, at the hands of Guatemalan gang members,
on account of their perceived political opposition to gangs and
their membership in a social group comprised of businesspeople from
a well-known business family.
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We summarize only briefly the evidence that the Vargases
presented to the immigration court. Mr. Vargas’s family was in the
trucking business in Guatemala for many years. His father, the
owner of the family company, received threats and extortion demands
from gang members beginning in 1993 and made regular payments to
those gang members until 2003, when his company went out of
business. The Vargases themselves began being targeted by gang
members in January 2004, when they opened a furniture store in
Guatemala City. The gang members demanded payments from the
Vargases in person, in writing, and by phone, and made explicit
threats against them and their young daughter. The gang members
also touched Ms. Vargas inappropriately with a knife on more than
one occasion and told her that they would cut her daughter into
pieces if she and her husband did not pay them.
In April 2004, the Vargases closed the furniture store,
because they could not afford to keep paying off the gang members
or to put their family in continued danger. But the gang members
kept targeting them. Armed men chased Ms. Vargas in her car, and
the Vargases received more threatening phone calls and notes. At
the end of 2004, the Vargases moved to another part of Guatemala in
search of refuge, but drug dealers there tried to coerce Mr. Vargas
into carrying drugs for them into the United States. In 2005,
believing they were not safe in Guatemala, the Vargases came to
this country.
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The IJ found the Vargases credible but, somewhat
reluctantly, denied their applications for asylum. She concluded
that those applications were untimely (an issue that the BIA did
not address and that we need not reach on appeal) and that the
Vargases had not demonstrated past persecution or a well-founded
fear of future persecution on account of a statutorily-protected
ground. The BIA affirmed, providing its own analysis; we therefore
focus our review on the BIA’s decision. Vásquez v. Holder, 635
F.3d 563, 565 (1st Cir. 2011).
An applicant for asylum or withholding of removal “must
produce convincing evidence” that he was persecuted (or has a well-
founded fear of future persecution) “on account of” a statutorily-
protected ground. Amouri v. Holder, 572 F.3d 29, 33 (1st Cir.
2009). The BIA found that the Vargases had failed to satisfy that
“nexus requirement” with regard to both their political opinion and
social group claims. We review the BIA’s conclusion under the
“substantial evidence” standard, id. at 34, giving deference to the
agency’s findings as long as they are supported by the record as a
whole, or, in other words, “unless the record compels a contrary
conclusion,” id. at 33.
We begin with the Vargases’ political opinion claim.
They argue that, while they never expressed a particular political
opinion to the gang members who threatened them, those gang members
imputed to the Vargases “the political opinion of opposition to
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their criminal lifestyle.” A claim of persecution can certainly be
based on an imputed political opinion, see Vásquez v. INS, 177 F.3d
62, 65 (1st Cir. 1999), but the Vargases have not pointed to any
evidence on the record, much less any “convincing evidence,” that
the gang members harmed them because they imputed a particular
political opinion to the Vargases, Amouri, 572 F.3d at 33. See
also Mayorga-Vidal, 675 F.3d at 18 (rejecting political opinion
claim where the petitioner did not point to evidence that the gang
members who targeted him “understood that his mere refusal to join
their ranks was an expression of an anti-gang, pro-establishment
political opinion”); Socop v. Holder, 407 F. App’x 495, 499 (1st
Cir. 2011) (agreeing with the BIA that the petitioner’s “refusal to
join a gang, without more, did not qualify as the expression of a
political opinion”). Indeed, during their removal hearing, the
Vargases testified that the gang members’ calls and visits were
aimed at extracting money from them. We have repeatedly held that
such extortion, without more, does not constitute political
persecution. See, e.g., Perez-Valenzuela v. Holder, 363 F. App’x
759, 760 (1st Cir. 2010) (rejecting withholding of removal claim
where petitioner described gangs “as driven by money”); López-
Castro v. Holder, 577 F.3d 49, 54 (1st Cir. 2009) (“A country-wide
risk of victimization through economic terrorism is not the
functional equivalent of a statutorily protected ground . . . .”);
Lopez de Hincapie v. Gonzales, 494 F.3d 213, 219 (1st Cir. 2007)
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(rejecting asylum and withholding of removal claims where evidence
suggested that petitioner was targeted “because of greed, not
because of her political opinion”); Quevedo v. Ashcroft, 336 F.3d
39, 44 (1st Cir. 2003) (“This Circuit has rejected the contention
that pervasive non-political criminality in Guatemala constitutes
a basis for asylum.”).
Substantial evidence also supports the BIA’s conclusion
that the Vargases failed to prove that they were targeted on
account of a cognizable social group. The Vargases claim that the
gang members threatened them because they were businesspeople from
a well-known business family, not because of their wealth (or
perceived wealth), but they have not supported that bare allegation
with any “convincing evidence of a causal connection” between the
harm they experienced and their family membership. Amouri, 572
F.3d at 33. Indeed, the evidence suggests that the gang members
were motivated by a desire to obtain money from the Vargases, and
“[w]e have . . . rejected social groups based solely on perceived
wealth, even if signaling an increased vulnerability to crime.”
Garcia-Callejas v. Holder, 666 F.3d 828, 830 (1st Cir. 2012); see
also Diaz v. Holder, 459 F. App’x 4, 6 (1st Cir. 2012) (rejecting
social group comprised of “persons of perceived wealth returning to
Guatemala from the United States”); Sicaju-Diaz v. Holder, 663 F.3d
1, 4 (1st Cir. 2011) (“[N]othing indicates that in Guatemala
individuals perceived to be wealthy are persecuted because they
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belong to a social class or group.”); Perez-Valenzuela, 363 F.
App’x at 760 (rejecting social group of “Guatemalan men perceived
by gang members to have disposable money available”); Lopez de
Hincapie, 494 F.3d at 219 (rejecting social group claim where the
evidence suggested that the petitioner was targeted “because of
greed,” not because of her family membership).1
We, like the IJ, have sympathy for the Vargases, but
their failure to demonstrate that they were persecuted “on account
of” a statutorily-protected ground dooms both their asylum and
withholding of removal applications. Lopez de Hincapie, 494 F.3d
at 220 (noting that the nexus requirement is common to the tests
for both asylum and withholding of removal). What the Vargases
experienced in Guatemala appears to have been the kind of “economic
terrorism,” López-Castro, 577 F.3d at 54, and “pervasive
non-political criminality,” Quevedo, 336 F.3d at 44, that we have
repeatedly held do not constitute grounds for asylum or withholding
of removal. We therefore deny the petition for review.
1
Because the Vargases’ claims fail for other reasons, we need
not address the BIA’s additional findings that: (1) the Vargases’
proposed social group lacks particularity and social visibility;
and (2) the Vargases did not prove that the Guatemalan government
was unwilling or unable to protect them. See, e.g., Mayorga-Vidal,
675 F.3d at 14 (stating that a legally cognizable social group must
share a “common, immutable characteristic that makes the group
socially visible . . . and sufficiently particular”); Jorgji v.
Mukasey, 514 F.3d 53, 57 (1st Cir. 2008) (explaining that if the
government is not directly responsible for persecution, “there must
be some showing that the persecution is due to the government’s
unwillingness or inability to control the conduct of private
actors”).
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