Pedro Arias De Alvarez v. William Barr ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 11 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PEDRO ARIAS DE ALVAREZ, AKA No. 15-73257
Pedro Alberto Arias,
Agency No. A077-089-025
Petitioner,
v.
MEMORANDUM*
WILLIAM P. BARR, Attorney General,
Respondent.
On Petition for Review of an Order of the
Board of Immigration Appeals
Submitted February 13, 2020**
Pasadena, California
Before: SCHROEDER, BYBEE, and COLLINS, Circuit Judges.
Pedro Arias De Alvarez (“Arias”) petitions for review of the decision of the
Board of Immigration Appeals (“BIA”), which upheld the order of the Immigration
Judge (“IJ”) directing his removal to Guatemala. Arias had moved to terminate his
removal proceedings on the ground that he had acquired derivative U.S. citizenship
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision without
oral argument. See FED. R. APP. P. 34(a)(2)(C).
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upon his mother’s naturalization in 1999, but the IJ rejected this argument. The IJ
also denied Arias’s request for protection under the United Nations Convention
Against Torture (“Torture Convention”). We have jurisdiction under § 242 of the
Immigration and Nationality Act (“INA”), 8 U.S.C. § 1252, and we deny the
petition.
1. In reviewing whether Arias acquired U.S. citizenship, we apply the
version of the derivative citizenship statute in force when Arias turned eighteen in
January 2000. See United States v. Casasola, 670 F.3d 1023, 1026 (9th Cir. 2012).
Under the then-existing terms of § 321 of the INA, Arias would acquire derivative
citizenship by virtue of his mother’s naturalization if he either [1] was “residing in
the United States pursuant to a lawful admission for permanent residence at the
time of the naturalization of [his mother], or [2] thereafter beg[an] to reside
permanently in the United States while under the age of eighteen years.” 8 U.S.C.
§ 1432(a)(5) (1999 ed.) (repealed effective February 2001). Because Arias did not
become a legal permanent resident until June 2001, he was not residing in the U.S.
“pursuant to a lawful admission for permanent residence” at the time of his
mother’s naturalization in 1999. Id. (emphasis added). Arias nonetheless argues
that, because he has been living continuously in the U.S. since 1990, he is covered
by the second clause of § 321(a)(5), which did not expressly refer to a “lawful
admission” and required only that he begin “to reside permanently” in the U.S.
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while under age 18. We rejected this precise argument in Romero-Ruiz v.
Mukasey, 538 F.3d 1057 (9th Cir. 2008), holding that under this clause of § 321(a)
“a petitioner must not only establish permanent residence, but also demonstrate
that he was residing in some lawful status.” Id. at 1062.1 Because Arias did not
acquire such lawful status until 2001, when he was 19 years old, he did not begin
to reside permanently in the U.S. “while under the age of eighteen years.”
8 U.S.C. § 1432(a)(5) (1999 ed.). The BIA therefore properly affirmed the IJ’s
denial of Arias’s motion to terminate his removal proceedings.
2. Arias also challenges the denial of his request for deferral of removal
under the Torture Convention. To establish his eligibility for such relief, Arias had
to show that he “is more likely than not to be tortured” if removed to Guatemala.
8 C.F.R. § 1208.17(a). Arias argues that that his non-gang-related tattoos and his
criminal record would cause the Guatemalan police to wrongly assume that he was
a gang member and that, for similar reasons, he would become a target of
Guatemalan gangs or anti-gang vigilantes. The BIA properly upheld the IJ’s
conclusion that Arias had failed to show that deferral was warranted on this theory.
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Arias urges us to follow Nwozuzu v. Holder, 726 F.3d 323 (2d Cir. 2013), in
which the Second Circuit rejected our decision in Romero-Ruiz on the ground that
we had given insufficient attention to the legislative history of § 321. Id. at 328
n.5. We are bound by Romero-Ruiz. See Miller v. Gammie, 335 F.3d 889, 899
(9th Cir. 2003) (en banc).
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The BIA agreed that the documentary evidence submitted by Arias to the IJ
indicated that there was mistreatment of persons with “gang-style tattoos,” but the
BIA noted that Arias did not have any such tattoos. Although there are some
statements in the documentary evidence that might have supported a competing
inference that any unfamiliar tattoo might be perceived as gang-related, the record
does not compel that inference. See Andrade v. Lynch, 798 F.3d 1242, 1245 (9th
Cir. 2015). The BIA likewise properly rejected Arias’s contention that his criminal
record would lead the Guatemalan police to assume that he was a gang member
and to torture him. The BIA acknowledged that Arias’s evidence on this score
supported an inference that the police might sometimes detain or harass returning
deportees based on speculation and profiling. But reviewing the record evidence
as a whole, the BIA concluded that the IJ did not clearly err in finding no clear
probability that Arias would “be tortured upon return to Guatemala.” We cannot
say that the evidence compelled a contrary conclusion to that of the agency.
Andrade, 798 F.3d at 1245.
PETITION DENIED.
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