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Batres Agustin v. Whitaker

United States Court of Appeals, First Circuit

January 25, 2019



          Lidia M. Sanchez, on brief for petitioner.

          Walter Bocchini, Trial Attorney, Joseph H. Hunt, Assistant Attorney General, and Linda S. Wernery, Assistant Director, Office of Immigration Litigation, U.S. Department of Justice, on brief for respondent.

          Before Torruella, Kayatta, and Barron, Circuit Judges.


         Jose Gilberto Batres Agustin ("Batres Agustin") is a Guatemalan national. He petitions for review of the Board of Immigration Appeals' ("BIA") order, which upheld the Immigration Judge's ("IJ") denial of his application for both withholding of removal under 8 U.S.C. § 1231(b)(3) and protection under the Convention Against Torture ("CAT") under 8 C.F.R. § 208.16(c)(4). We deny the petition.


         Batres Agustin entered the United States illegally in December of 1989. During his nearly thirty years in the United States, Batres Agustin was convicted three times of driving under the influence. After his most recent arrest in 2015 for driving under the influence, he was taken into custody by the Department of Homeland Security ("DHS"), and, on December 2, 2015, DHS initiated removal proceedings against him before an IJ in Boston, Massachusetts.

         Prior to those proceedings, Batres Agustin filed an I-589 Application for Asylum and Withholding of Removal under § 241(b)(3) of the Immigration and Nationality Act ("INA"). He indicated in this application that he anticipated "mistreatment at the hands of the [gangs] and criminal elements in Guatemala" were he to return to his home country and that his brother and daughter had experienced gang violence in Guatemala in the past when they refused to comply with the gangs' extortionist demands. He further indicated that he sought withholding of removal based on "membership in a particular social group" and that he was not afraid of being subjected to torture if he returned to Guatemala.

         Batres Agustin's removal hearing was held on July 26, 2017. In seeking asylum and withholding of removal, he testified that he feared extortion and violence from local gangs were he to return to his home country. He also testified that his family had experienced gang violence there in the past and noted that he was particularly apprehensive, as someone returning from the United States, because "the [gangs] ask for money as soon as they know that you're coming back from [the United States]." When pressed by his attorney as to his precise fears regarding his return, Batres Agustin stated that he was "accustomed" to life in the United States and, for that reason, was afraid of "start[ing] over" in Guatemala.

         At the hearing's conclusion, the IJ ruled that the asylum application was untimely and that Batres Agustin had failed to establish a well-founded fear of persecution upon his return to Guatemala based on one of the five protected grounds enumerated in 8 U.S.C. § 1231(b)(3)(A) and thus was not entitled to withholding of removal. Additionally, the IJ ruled that Batres Agustin was not entitled to protection under the CAT because he made no claim that he would be tortured by anyone if he returned to Guatemala.[1]On August 24, 2017, Batres Agustin appealed the IJ's decision to the BIA. In affirming the IJ's ruling on April 20, 2018, the BIA found that Batres Agustin's application for asylum was untimely because it was filed well after the one-year deadline. The BIA also rejected his application for withholding of removal because he had failed to "demonstrate past persecution or that any feared harm would be on account of a protected ground." In so finding, the BIA determined that the petitioner "did not demonstrate a pattern or practice of persecution of a group of similarly situated people" due to any protected ground. Finally, the BIA rejected Batres Agustin's CAT claim because he had failed to "testify regarding any past torture or fear of future torture." Batres Agustin timely petitioned for review of the BIA's ruling on May 18, 2018.


         Where, as here, the BIA issues its own opinion without adopting the IJ's rationale, we review the BIA's decision. See Touch v. Holder, 568 F.3d 32, 37-38 (1st Cir. 2009). Our review of the BIA's denial of claims for withholding of removal and for CAT protection is for "substantial evidence." Id. at 38 (quoting Rashad v. Mukasey, 554 F.3d 1, 4 (1st Cir. 2009)). "Under this standard, we do not disturb [factual] findings if they are 'supported by reasonable, substantial, and probative evidence on the record considered as a whole.'" Id. (quoting Segran v. Mukasey, 511 F.3d 1, 5 (1st Cir. 2007)). "We reverse only if 'any reasonable adjudicator would be compelled to conclude to the contrary.'" Id. (quoting Tobon-Marin v. Mukasey, 512 F.3d 28, 30 (1st Cir. 2008)). We review purely legal questions, however, de novo. Segran, 511 F.3d at 5.[2]

         To establish eligibility for withholding of removal, a petitioner must show "a clear probability of persecution," Ang v. Gonzales, 430 F.3d 50, 58 (1st Cir. 2005), based on "race, religion, nationality, membership in a particular social group, or political opinion," 8 U.S.C. ยง 1231(b)(3)(A). The BIA concluded, however, that Batres Agustin had not shown past persecution or that "any feared harm would be on account of a protected ground." In so concluding, the BIA found that his general fear of civil unrest in Guatemala did not suffice to show a probable fear of persecution and that, to the extent that the particular social group to which he claimed to belong was "wealthy individuals returning from a lengthy stay in the United States," that class of persons did not constitute a protected social group under 8 U.S.C. ...

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