Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 11-1125

ANA DELIA RUANO DIAZ,

Petitioner,

v.

ERIC H. HOLDER, JR., Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF

THE BOARD OF IMMIGRATION APPEALS

Before

Lynch, Chief Judge,

Boudin and Lipez, Circuit Judges.

Robert M. Warren on brief for petitioner.

Katherine A. Smith, Trial Attorney, Office of Immigration

Litigation, United States Department of Justice, with whom Tony

West, Assistant Attorney General, and Derek C. Julius, Senior

Litigation Counsel, Office of Immigration Litigation, were on brief

for respondent.

February 7, 2012
LYNCH, Chief Judge. Ana Delia Ruano Diaz, a Guatemalan

national, seeks review of the Board of Immigration Appeals (BIA)

decision denying her application for withholding of removal and

protection under the Convention Against Torture (CAT). We deny her

petition for review.

Ruano Diaz illegally entered the United States in 2004. 

Two years later, the Department of Homeland Security instigated

removal proceedings against her under Section 212(a)(6)(A)(i) of

the Immigration and Nationality Act, 8 U.S.C. § 1229a(a)(2); id.

§ 1182(a)(6)(A)(i), for being "present in the United States without

being admitted or paroled," id. On October 30, 2008, the

immigration judge denied Ruano Diaz's application for asylum,

withholding of removal, and protection under the CAT, but found she

was eligible for voluntary departure. The BIA affirmed this

decision on September 2, 2010, and remanded for voluntary departure

proceedings. On January 4, 2011, the immigration judge granted

Ruano Diaz voluntary departure. 

On February 3, 2011, Ruano Diaz petitioned this court for

a stay of her deportation, which was denied on March 15, 2011. She

then filed a petition for review of the BIA's decision denying her

claims for withholding of removal and protection under the CAT.

Ruano Diaz was born in Guatemala in 1979. At her

immigration hearing, Ruano Diaz testified that although neither she

nor her family encountered any problems while living in Guatemala,

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she heard about criminal gangs intimidating and attacking civilians

without reprimand from the government. Ruano Diaz testified that

she left Guatemala and came to the United States out of a fear of

gang-related violence. Were she and her young daughter, who was

born after Ruano Diaz's entry into the United States, to return to

Guatemala, she testified, they might suffer kidnaping or harm from

the continued rampages of criminal gangs. 

The immigration judge denied Ruano Diaz's claim for

withholding of removal, finding that she had not demonstrated 1

under 8 C.F.R. § 208.16(b) that it was "more likely than not" that

she would -- as she claimed -- suffer persecution in Guatemala on

account of her membership in a discrete, recognizable social group. 

The judge found that none of the three social groups to which Ruano

Diaz asserted she belonged -- "young women in Guatemala," persons 2

returning "from the United States who would be perceived as

wealthy," and individuals "opposed to the criminal gangs in

Guatemala" -- qualified as particularized, legally cognizable

social groups for purposes of withholding of removal. In addition,

the judge denied Ruano Diaz's claim for relief under the CAT,

The immigration judge also denied Ruano Diaz's claim for 1

asylum because she failed to file within one year of entering the

United States. See 8 U.S.C. § 1158(a)(2)(B). The BIA noted that

Ruano Diaz did not appeal this denial, and she has not addressed

the denial any further in this Court. Therefore, we deem her

asylum claim waived. 

Ruano Diaz does not pursue this broad group on appeal. 2

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finding that she had not demonstrated that it was more likely than

not that she would face government-sanctioned torture if she

returned to Guatemala.

The BIA affirmed the immigration judge's denial of

withholding of removal and relief under the CAT, and affirmed the

lack of a particular social group finding. It additionally found

that Ruano Diaz had not shown she was persecuted in the past and

had not met the "more likely than not" standard for withholding of

removal.

Where, as here, the BIA has written separately while

nonetheless deferring to and affirming the decision of the

immigration judge, we review both the BIA's decision and the

relevant portions of the immigration judge's decision. Kartasheva

v. Holder, 582 F.3d 96, 105 (1st Cir. 2009). We review any

findings of fact made by the BIA and immigration judge under the

highly deferential "substantial evidence" standard. Olujoke v.

Gonzales, 411 F.3d 16, 21 (1st Cir. 2005). We reverse a decision

only if the record would "compel a reasonable factfinder to reach

a contrary determination." Chhay v. Mukasey, 540 F.3d 1, 5 (1st

Cir. 2008); see also 8 U.S.C. § 1252(b)(4)(B). We review any legal

determinations de novo, subject to appropriate principles of

administrative deference. Naeem v. Gonzales, 469 F.3d 33, 36 (1st

Cir. 2006); see also Chevron, U.S.A., Inc. v. Natural Res. Def.

Council, Inc., 467 U.S. 837, 844 (1984).

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To be eligible for withholding of removal, Ruano Diaz

must show that it is "'more likely than not' that [s]he will be

persecuted on account of a protected ground" if she returns to

Guatemala. Vilela v. Holder, 620 F.3d 25, 28 (1st Cir. 2010)

(quoting Makalo v. Holder, 612 F.3d 93, 96 (1st Cir. 2010)); see

also 8 C.F.R. § 1208.16(b)(2). The five statutorily protected

grounds are race, religion, nationality, political opinion, and

membership in a particular social group. See 8 C.F.R.

§ 1208.16(b).

The BIA has delineated the term "particular social group"

as a group of persons sharing a common, immutable characteristic

that makes the group socially visible and sufficiently particular. 

Faye v. Holder, 580 F.3d 37, 41 (1st Cir. 2009); In re C-A-, 23 I.

& N. Dec. 951, 959-60 (B.I.A. 2006). We have upheld this

delineation of the term's scope as reasonable. See Mendez-Barrera

v. Holder, 602 F.3d 21, 25-26 (1st Cir. 2010).

Substantial evidence supports the agency's determination

that Ruano Diaz failed to show that were she to return to

Guatemala, it is more likely than not she would suffer persecution

on account of her membership in a particular social group. 

In her petition, Ruano Diaz proposes only two social

groups -- "persons of perceived wealth returning [to Guatemala]

from the United States" and "young females targeted by the criminal

gangs" in Guatemala. We interpret the latter to be equivalent to

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the group Ruano Diaz proposed to the immigration judge and the BIA

-- individuals "opposed to the criminal gangs in Guatemala." Our

cases have already rejected Ruano Diaz's proposed groups. See,

e.g., Garcia-Callejas v. Holder, No. 11-1084, 2012 WL 178381, at

*1-2 (1st Cir. Jan. 24, 2012) (per curiam) (to be published in

F.3d). 

In Socop v. Holder, 407 F. App'x 495 (1st Cir. 2011), we

held that "gang opposition," including a group of individuals "who

expressly oppose the practices and values of [a particular] gang,"

does not constitute a particularized social group protected under

the immigration laws. Id. at 498. We have also rejected attempts

to recognize a particular social group comprised of individuals

perceived to be wealthy, who are returning to Guatemala after

living in the United States. See Sicaju-Diaz v. Holder, 663 F.3d

1, 4 (1st Cir. 2011); Larios v. Holder, 608 F.3d 105, 109 (1st Cir.

2010). In Sicaju-Diaz, we said that "nothing indicates that in

Guatemala individuals perceived to be wealthy are persecuted

because they belong to a social class or group." 663 F.3d at 4;

see also Lopez-Castro v. Holder, 577 F.3d 49, 54 (1st Cir. 2009)

(holding that petitioner's argument that "he would be exposed to an

increased risk of future attacks by gang members in Guatemala

because he will be perceived as wealthy . . . fails to establish an

objectively reasonable basis for a fear of future persecution

premised on a statutorily protected ground"). As a result, Ruano

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Diaz has failed to meet her burden of demonstrating eligibility for

withholding of removal. 

The BIA also supportably found that Ruano Diaz failed to

meet her burden for relief under the CAT, since she has not

established that it is more likely than not that she would be

subject to torture upon her return to Guatemala. See 8 C.F.R.

§ 1208.16(c)(2). Ruano Diaz submitted essentially the same

evidence of fear of criminal gang violence on account of being

perceived as wealthy or as someone opposed to gang violence. As

the immigration judge and BIA found, this evidence did not surmount

the hurdle for establishing eligibility under the CAT or the

immigration statutes.

Accordingly, the petition for review is denied. 

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