10-2292-ag

Diaz v. Holder

BIA

Vomacka, IJ

A097 526 056

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER

FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF

APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER

IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY

ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 21st 4 day of July, two thousand eleven.

5

6 PRESENT:

7 JON O. NEWMAN,

8 RICHARD C. WESLEY,

9 PETER W. HALL,

10 Circuit Judges.

11 _____________________________________

12

13 RICARDO ALONSO FLORES DIAZ,

14 Petitioner, 

15

16 v. 10-2292-ag

17 NAC 

18 ERIC H. HOLDER, JR., UNITED STATES 

19 ATTORNEY GENERAL, 

20 Respondent.

21 _______________________________________

22

23 FOR PETITIONER: Andrew P. Johnson, New York, New

24 York.

25

26 FOR RESPONDENT: Tony West, Assistant Attorney

27 General; Ernesto H. Molina, Jr.,

28 Assistant Director; Andrew N.

29 O’Malley, Trial Attorney, Office of
2

1 Immigration Litigation, United

2 States Department of Justice,

3 Washington, D.C.

4

5 UPON DUE CONSIDERATION of this petition for review of a

6 Board of Immigration Appeals (“BIA”) decision, it is hereby

7 ORDERED, ADJUDGED, AND DECREED, that the petition for review

8 is DENIED.

9 Ricardo Alonso Flores Diaz, a native and citizen of El

10 Salvador, seeks review of a May 20, 2010, order of the BIA,

11 affirming the May 16, 2008, decision of Immigration Judge

12 (“IJ”) Alan A. Vomacka, which denied his motion to suppress

13 evidence and his application for asylum, withholding of

14 removal, and relief under the Convention Against Torture

15 (“CAT”). In re Flores Diaz, No. A097 526 056 (B.I.A. May

16 20, 2010), aff’g No. A097 526 056 (Immig. Ct. N.Y. City May

17 16, 2008). We assume the parties’ familiarity with the

18 underlying facts and procedural history in this case. 

19 Under the circumstances of this case, we have reviewed

20 the decision of the IJ as supplemented by the BIA. See Yan

21 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The

22 applicable standards of review are well-established. See 

23 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d

24 510, 513 (2d Cir. 2009).
3

1 I. Suppression

2 Flores Diaz argues that because immigration officers

3 entered his residence without a warrant and without his

4 consent, the evidence they obtained should have been

5 excluded from his proceedings. As stated in Flores Diaz’s

6 declaration, immigration officers knocked on his door and

7 window in the early morning, he opened the door, they

8 ordered him to walk inside the house and they followed him

9 into the house. The immigration officers asked Flores Diaz

10 for his identification documents and his passport, which he

11 provided to the officers. Flores Diaz also stated that

12 “[t]he houseowner’s boyfriend later informed me that after

13 immigration officials entered the house they showed him an

14 order of deportation for someone who never lived at that

15 address.” 

16 Although it appears that the immigration officers

17 violated Flores Diaz’s Fourth Amendment rights in entering

18 the house without a warrant, see Payton v. New York, 445

19 U.S. 573, 590 (1980); United States v. Sanchez, 635 F.2d 47,

20 58-59 (2d Cir. 1980), the Supreme Court has held that the

21 rule that ordinarily excludes evidence obtained from a

22 constitutionally invalid search does not apply in removal
4

1 proceedings, see INS v. Lopez-Mendoza, 468 U.S. 1032, 1038 

2 (1984). Moreover, although the Supreme Court concluded that

3 suppression might be warranted in removal proceedings if

4 “egregious violations” of the Fourth Amendment were present,

5 id. at 1050-51, we find these facts insufficient to

6 constitute an “egregious” constitutional violation. As

7 there is no reason to doubt the veracity of the evidence in

8 question, and Flores Diaz does not suggest that his arrest

9 was motivated by race or any other “grossly improper

10 consideration,” he was entitled to suppression only if:

11 (1) he was arrested “for no reason at all”; and (2) the

12 seizure was “sufficiently severe.” See Almeida-Amaral v.

13 Gonzales, 461 F.3d 231, 235 (2d Cir. 2006). Because the

14 agency reasonably determined that the immigration officers’

15 actions were not “for no reason at all,” but because they

16 had reason to believe that an individual with an outstanding

17 deportation order resided at Flores Diaz’s place of

18 residence, the agency did not err in denying the motion to

19 suppress. See id. 

20 Additionally, the BIA did not err in finding that even

21 if Flores Diaz’s arrest was an egregious violation of his

22 Fourth Amendment rights such that the evidence should have
5

1 been excluded, his subsequent asylum application and

2 supporting testimony provided sufficient evidence of his

3 alienage not directly derived from his arrest. See Katris

4 v. I.N.S., 562 F.2d 866, 869 (1977) (per curiam). 

5 II. Asylum, Withholding of Removal, and CAT

6 A. Asylum and CAT Relief 

7 Flores Diaz challenges neither the agency’s dispositive

8 finding that his asylum application was time-barred under 

9 8 U.S.C. § 1158(a)(2)(B) nor the agency’s denial of CAT

10 relief. Accordingly, we decline to address these findings.

11 B. Withholding of Removal

12 Flores Diaz argues that he was beaten in El Salvador

13 by gang members on account of his membership in the

14 particular social group of “merchants having readily

15 available money.” The agency did not err in finding that

16 Flores Diaz failed to demonstrate a nexus to a protected

17 ground, however, as we have held that affluence alone is

18 insufficient to create a particular social group within the

19 statutory meaning of persecution. See Ucelo-Gomez v.

20 Mukasey, 509 F.3d 70, 72-74 (2d Cir. 2007) (per curiam);

21 Matter of A-M-E, 24 I. & N. Dec. 69, 76 (B.I.A. 2007). The

22 additional element Flores Diaz proposes here, that he was a

23 merchant and was thus perceived to have readily available
6

1 funds, is insufficient to differentiate his putative social

2 group from the “wealthy Guatemalan” social group discussed

3 in Ucelo-Gomez. Cf. Ucelo-Gomez, 509 F.3d at 73 (noting

4 that “it would be impractical for IJs to distinguish between

5 petitioners who are targeted . . . because of their class

6 status or merely because that’s where the money is”). More

7 importantly, Flores Diaz points to no evidence that he was

8 targeted on account of his business ownership as distinct

9 from the perception that he had money. In addition, the

10 evidence in the record of gang-related violence in El

11 Salvador does not lend support to his withholding claim. 

12 See Melgar de Torres v. Reno, 191 F.3d 307, 314 (2d Cir.

13 1999). Accordingly, the agency did not err in concluding

14 that Flores Diaz failed to demonstrate past persecution or a

15 likelihood of persecution on account of a protected ground. 

16 See Ucelo-Gomez, 509 F.3d at 74. 

17 For the foregoing reasons, the petition for review is

18 DENIED. As we have completed our review, any stay of

19 removal that the Court previously granted in this petition

20 is VACATED, and any pending motion for a stay of removal in

21 this petition is DISMISSED as moot. Any pending request for

22 oral argument in this petition is DENIED in accordance with
7

1 Federal Rule of Appellate Procedure 34(a)(2), and Second

2 Circuit Local Rule 34.1(b).

3 FOR THE COURT: 

4 Catherine O’Hagan Wolfe, Clerk

5

6