PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION
M. Sanchez, on brief for petitioner.
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
Torruella, Kayatta, and Barron, Circuit Judges.
BARRON, CIRCUIT JUDGE.
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.
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.
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.
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.
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.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
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.
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. § 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