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. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Daniel Patrick Moynihan** 2 **United States Courthouse, 500 Pearl Street, in the City of** 3 **New York, on the 21 st** **day of July, two thousand eleven.** 4 5 **PRESENT:** 6 **JON O. NEWMAN,** 7 **RICHARD C. WESLEY,** 8 **PETER W. HALL,** 9 Circuit Judges**.** 10

**_____________________________________** 11 12 **RICARDO ALONSO FLORES DIAZ,** 13 Petitioner**,** 14 15 **v. 10-2292-ag** 16 **NAC** 17 **ERIC H. HOLDER, JR., UNITED STATES** 18 **ATTORNEY GENERAL,** 19 Respondent**.** 20

**_______________________________________** 21 22 **FOR PETITIONER: Andrew P. Johnson, New York, New** 23 **York.** 24 25 **FOR RESPONDENT: Tony West, Assistant Attorney** 26 **General; Ernesto H. Molina, Jr.,** 27 **Assistant Director; Andrew N.** 28 **O’Malley, Trial Attorney, Office of** 292 **Immigration Litigation, United** 1 **States Department of Justice,** 2 **Washington, D.C.** 3 4 UPON DUE CONSIDERATION of this petition for review of a 5 Board of Immigration Appeals (“BIA”) decision, it is hereby 6 ORDERED, ADJUDGED, AND DECREED, that the petition for review 7 is DENIED. 8 Ricardo Alonso Flores Diaz, a native and citizen of El 9 Salvador, seeks review of a May 20, 2010, order of the BIA, 10 affirming the May 16, 2008, decision of Immigration Judge 11 (“IJ”) Alan A. Vomacka, which denied his motion to suppress 12 evidence and his application for asylum, withholding of 13 removal, and relief under the Convention Against Torture 14 (“CAT”). In re Flores Diaz, No. A097 526 056 (B.I.A. May 15 20, 2010), aff’gNo. A097 526 056 (Immig. Ct. N.Y. City May 16 16, 2008). We assume the parties’ familiarity with the 17 underlying facts and procedural history in this case. 18 Under the circumstances of this case, we have reviewed 19 the decision of the IJ as supplemented by the BIA. See Yan 20 Chen v. Gonzales, 417 F.3d 268, 271 (2d Cir. 2005). The 21 applicable standards of review are well-established. See 22 8 U.S.C. § 1252(b)(4)(B); Yanqin Weng v. Holder, 562 F.3d 23 510, 513 (2d Cir. 2009). 243 **I. Suppression** 1 Flores Diaz argues that because immigration officers 2 entered his residence without a warrant and without his 3 consent, the evidence they obtained should have been 4 excluded from his proceedings. As stated in Flores Diaz’s 5 declaration, immigration officers knocked on his door and 6 window in the early morning, he opened the door, they 7 ordered him to walk inside the house and they followed him 8 into the house. The immigration officers asked Flores Diaz 9 for his identification documents and his passport, which he 10 provided to the officers. Flores Diaz also stated that 11 “[t]he houseowner’s boyfriend later informed me that after 12 immigration officials entered the house they showed him an 13 order of deportation for someone who never lived at that 14 address.” 15 Although it appears that the immigration officers 16 violated Flores Diaz’s Fourth Amendment rights in entering 17 the house without a warrant, see Payton v. New York, 445 18 U.S. 573, 590 (1980); United States v. Sanchez , 635 F.2d 47, 19 58-59 (2d Cir. 1980), the Supreme Court has held that the 20 rule that ordinarily excludes evidence obtained from a 21 constitutionally invalid search does not apply in removal 224 proceedings, see INS v. Lopez-Mendoza , 468 U.S. 1032, 1038 1 (1984). Moreover, although the Supreme Court concluded that 2 suppression might be warranted in removal proceedings if 3 “egregious violations” of the Fourth Amendment were present, 4 id. at 1050-51, we find these facts insufficient to 5 constitute an “egregious” constitutional violation. As 6 there is no reason to doubt the veracity of the evidence in 7 question, and Flores Diaz does not suggest that his arrest 8 was motivated by race or any other “grossly improper 9 consideration,” he was entitled to suppression only if: 10 (1) he was arrested “for noreason at all”; and (2) the 11 seizure was “sufficiently severe.” See Almeida-Amaral v. 12 Gonzales, 461 F.3d 231, 235 (2d Cir. 2006). Because the 13 agency reasonably determined that the immigration officers’ 14 actions were not “for no reason at all,” but because they 15 had reason to believe that an individual with an outstanding 16 deportation order resided at Flores Diaz’s place of 17 residence, the agency did not err in denying the motion to 18
suppress. See id

. 19 Additionally, the BIA did not err in finding that even 20 if Flores Diaz’s arrest was an egregious violation of his 21 Fourth Amendment rights such that the evidence should have 225 been excluded, his subsequent asylum application and 1 supporting testimony provided sufficient evidence of his 2 alienage not directly derived from his arrest. See Katris 3
v. I.N.S. , 562 F.2d 866, 869 (1977) (per curiam). 4 **II. Asylum, Withholding of Removal, and CAT** 5 A. Asylum and CAT Relief 6 Flores Diaz challenges neither the agency’s dispositive 7 finding that his asylum application was time-barred under 8 8 U.S.C. § 1158(a)(2)(B) nor the agency’s denial of CAT 9 relief. Accordingly, we decline to address these findings. 10 B. Withholding of Removal 11 Flores Diaz argues that he was beaten in El Salvador 12 by gang members on account of his membership in the 13 particular social group of “merchants having readily 14 available money.” The agency did not err in finding that 15 Flores Diaz failed to demonstrate a nexus to a protected 16 ground, however, as we have held that affluence alone is 17 insufficient to create a particular social group within the 18 statutory meaning of persecution. See Ucelo-Gomez v. 19 Mukasey, 509 F.3d 70, 72-74 (2d Cir. 2007) (per curiam); 20 Matter of A-M-E, 24 I. & N. Dec. 69, 76 (B.I.A. 2007). The 21 additional element Flores Diaz proposes here, that he was a 22 merchant and was thus perceived to have readily available 236 funds, is insufficient to differentiate his putative social 1 group from the “wealthy Guatemalan” social group discussed 2 in Ucelo-Gomez

. Cf. Ucelo-Gomez, 509 F.3d at 73 (noting 3 that “it would be impractical for IJs to distinguish between 4 petitioners who are targeted . . . because of their class 5 status or merely because that’s where the money is”). More 6 importantly, Flores Diaz points to no evidence that he was 7 targeted on account of his business ownership as distinct 8 from the perception that he had money. In addition, the 9 evidence in the record of gang-related violence in El 10 Salvador does not lend support to his withholding claim. 11 See Melgar de Torres v. Reno , 191 F.3d 307, 314 (2d Cir. 12 1999). Accordingly, the agency did not err in concluding 13 that Flores Diaz failed to demonstrate past persecution or a 14 likelihood of persecution on account of a protected ground. 15 See Ucelo-Gomez, 509 F.3d at 74. 16 For the foregoing reasons, the petition for review is 17 DENIED. As we have completed our review, any stay of 18 removal that the Court previously granted in this petition 19 is VACATED, and any pending motion for a stay of removal in 20 this petition is DISMISSED as moot. Any pending request for 21 oral argument in this petition is DENIED in accordance with 227 Federal Rule of Appellate Procedure 34(a)(2), and Second 1 Circuit Local Rule 34.1(b). 2
FOR THE COURT: 3 Catherine O’Hagan Wolfe, Clerk 4 5 6