United States Court of Appeals

For the First Circuit

No. 11-1419

JOSE MAURICIO BELTRAND-ALAS,

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,

Howard and Thompson, Circuit Judges.

Randy Olen on brief for petitioner.

Daniel E. Goldman, Senior Litigation Counsel, Office of

Immigration Litigation, Civil Division, Department of Justice, Tony

West, Assistant Attorney General, Civil Division, Ada E. Bosque,

Senior Litigation Counsel, Office of Immigration Litigation, and

Andrew B. Insegna, Trial Attorney, on brief for respondent.

August 17, 2012
LYNCH, Chief Judge. Jose Mauricio Beltrand-Alas

petitions for review of a March 22, 2011, decision by the Board of

Immigration Appeals (BIA), which affirmed the decision of an

Immigration Judge (IJ) denying his application for withholding of

removal. We deny the petition for review.

I.

Beltrand-Alas is a native and citizen of El Salvador. He

unlawfully entered the United States in December 2003. On April

25, 2006, the Department of Homeland Security began removal

proceedings by filing a Notice to Appear with the immigration

court, charging Beltrand-Alas with removability as an alien present

in the United States without being admitted or paroled, and for

being present in the United States without a valid immigrant visa. 

See 8 U.S.C. § 1182(a)(6)(A)(I); id. § 1182(a)(7)(A)(i)(I). 

Beltrand-Alas admitted the factual allegations, conceded

removability, and requested relief in the form of political asylum

and withholding of removal. In the alternative, Beltrand-Alas

requested voluntary departure.

 The IJ held Beltrand-Alas's merits hearing on September

16, 2009. Beltrand-Alas testified that he was born in

Chalatenango, El Salvador. He further testified that his brother,

Salvador, belonged to a gang and that an individual named Ulysses

made attempts to get Salvador to join his gang. Beltrand-Alas

advised Salvador against joining Ulysses's gang, prompting Ulysses,

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at gun point, to threaten to kill Beltrand-Alas. That same year,

Beltrand-Alas's brother Salvador was murdered by unknown persons. 

The family left their home, and Beltrand-Alas's sister believed

someone from Ulysses's group was following her. Beltrand-Alas left

El Salvador approximately one year after his brother's death.

Beltrand-Alas testified that he fears returning to El

Salvador because he believes that other members of Ulysses's gang

will seek retribution against him. His nephew was murdered in

2008, and Beltrand-Alas testified that he believed Ulysses's gang

was responsible. 

The IJ found that Beltrand-Alas's testimony was credible,

but that the application for political asylum was untimely. 

Beltrand-Alas's explanations for the untimely application were

inadequate to qualify for an exception to the one-year filing

deadline.

The IJ also found that Beltrand-Alas was not a victim of

past persecution and further found that Beltrand-Alas had not met

his burden of showing persecution, a well-founded fear of

persecution, or a clear probability of persecution on account of a

statutorily protected ground. Additionally, the IJ found that

Beltrand-Alas did not establish himself to be a member of a

particular social group and that Beltrand-Alas's fear of harm was

not centrally based upon an actual or implied protected ground. 

Although Beltrand-Alas did not raise a claim for protection under

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the Convention Against Torture (CAT), the IJ found that BeltrandAlas failed to establish that it would be more likely than not that

he would be tortured upon returning to El Salvador, and that the

torture would be inflicted by or at the instigation of or with the

consent or acquiescence of a public official or someone acting in

an official capacity. The IJ granted Beltrand-Alas voluntary

departure.

Beltrand-Alas appealed only the IJ's denial of

withholding of removal, and the BIA, finding no error, dismissed

the appeal. The BIA agreed with the IJ that Beltrand-Alas did not

show a nexus between any alleged harm and a protected ground. The

BIA explained that opposition to gangs does not generally create

the basis for a particular social group, and that even if the

proposed social group existed, Beltrand-Alas was targeted because

of a personal dispute with a gang member, not on account of a

protected ground. The BIA rejected Beltrand-Alas's argument that

his open and public opposition to gangs made his proposed social

group "socially visible," explaining that social visibility is not

about a readily perceivable trait, but whether society-at-large

conceptualizes individuals with that trait -- whether readily

perceivable or not -- as a concrete, identifiable group. Finally,

the BIA concluded that Beltrand-Alas was not a member in the

particular social group of "returning expatriates from the United

States" because he had submitted no evidence that such a group

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exists in El Salvador or that people returning from the United

States are targeted.

On April 15, 2011, Beltrand-Alas petitioned this court

for review of the BIA's decision.

II.

Where the BIA agrees with and affirms the IJ's result,

while adding additional justifications, as here, we review both the

BIA's and IJ's opinions. Nako v. Holder, 611 F.3d 45, 48 (1st Cir.

2010); Settenda v. Ashcroft, 377 F.3d 89, 92-93 (1st Cir. 2004). 

We decide petitions for review based on the

administrative record that is the basis of the agency's findings,

8 U.S.C. § 1252(b)(4)(A), and "the administrative findings of fact

are conclusive unless any reasonable adjudicator would be compelled

to conclude to the contrary," id. § 1252(b)(4)(B). We accept

agency findings of fact "that are supported by substantial evidence

on the record as a whole." Morgan v. Holder, 634 F.3d 53, 57 (1st

Cir. 2011)(citing INS v. Elias-Zacarias, 502 U.S. 478, 481 (1992)). 

We review the agency's conclusions of law de novo. Mendez-Barrera

v. Holder, 602 F.3d 21, 24 (1st Cir. 2010). We give "some

deference to the agency's founded interpretation of statutes and

regulations that it administers." McKenzie-Francisco v. Holder,

662 F.3d 584, 586 (1st Cir. 2011). 

Withholding of removal protects an otherwise removable

alien from removal to a country where "the alien's life or freedom

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would be threatened in that country because of the alien's race,

religion, nationality, membership in a particular social group, or

political opinion." 8 U.S.C. § 1231(b)(3)(A). The BIA has

described the term "particular social group" as a group of persons

sharing a common, immutable characteristic that makes the group

socially visible and sufficiently particular, In re C-A-, 23

I. & N. Dec. 951, 955-57 (BIA 2006); see also Faye v. Holder, 580

F.3d 37, 41 (1st Cir. 2009), a delineation that we have upheld as

reasonable, see Mendez-Barrera, 602 F.3d at 25-26.

Beltrand-Alas bears the burden of showing it is more

likely than not that he will suffer persecution on account of one

of the five protected grounds if removed to El Salvador. Makalo v.

Holder, 612 F.3d 93, 96 (1st Cir. 2010). A showing of past

persecution in the proposed country of removal on account of one of

the five statutory grounds creates a rebuttable presumption that

persecution is likely. 8 C.F.R. § 1208.16(b)(1)(i); Viela v.

Holder, 620 F.3d 25, 28 (1st Cir. 2010). Furthermore, under the

REAL ID Act of 2005, Beltrand-Alas bears the burden of showing that

one of the five protected grounds was or will be at least "one

central reason" for his persecution. 8 U.S.C. § 1158(b)(1)(B)(i); 1

see also id. § 1231(b)(3)(C).

The REAL ID Act of 2005 is applicable to Beltrand-Alas 1

because he submitted his application for withholding of removal

after the May 11, 2005, effective date of the Act. See 8 U.S.C.

§ 1158 note (Effective Date of 2005 Amendment); Díaz-García v.

Holder, 609 F. 3d 21, 27 (1st Cir. 2010).

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Substantial evidence supports the agency's determination

that Beltrand-Alas failed to show that it is more likely than not

that, if removed to El Salvador, he would suffer persecution on

account of his membership in a particular social group or on

account of political opinion. Our precedents foreclose BeltrandAlas's claim that he will be subjected to persecution on account of

his membership in the group of persons who oppose gangs or in the

group of persons of perceived wealth. Furthermore, Beltrand-Alas

failed to meet the burden of producing evidence that he was or will

be targeted on account of a political opinion.

 In Garcia-Callejas v. Holder, 666 F.3d 828 (1st Cir.

2012), this court noted that it has decided a number of cases that

have rejected the argument that people who oppose gang membership

or recruitment are members of a particular social group. Id. at

830. In Mendez-Barrera, we held that young El Salvadoran women who

resist gang recruitment are not a legally recognized social group

because the proposed group lacks social visibility and is not

sufficiently particular. 602 F.3d at 26-27. Like in MendezBarrera, Beltrand-Alas has not pinpointed any group characteristic

that renders the members of the proposed group socially visible. 

Id. at 26. We have also rejected the argument that those who

expressly oppose gangs are sufficiently visible. In MendezBarrera, we stated, "[t]he relevant inquiry is whether the social

group is visible in the society, not whether the alien herself is

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visible to the alleged persecutors." Id. at 27. Thus, the

argument fails.

Beltrand-Alas argues that in light of Judulang v. Holder,

132 S. Ct. 476 (2011), the BIA's use of "social visibility" in the

social group analysis is an arbitrary and capricious interpretation

of the statute. However, Judulang is inapposite to this case as it

involved a different statutory provision and did not involve an

agency's interpretation of any statutory language. See id. at 484

n.7. By contrast, this court has held that the social visibility

criterion is reasonable because "it represents an elaboration of

how th[e] requirement operates," Mendez-Barrera, 602 F.3d at 26,

and is an interpretation of an ambiguous statutory term, id. at 25-

26 (citing Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc.,

467 U.S. 837, 842-43 (1984)). Judulang does not alter that

analysis. 

We have also noted that we have rejected proposed social

groups "based solely on perceived wealth, even if signaling an

increased vulnerability to crime," Garcia-Callejas, 666 F.3d at

830, regardless of why one is perceived as wealthy, see Sicaju-Diaz

v. Holder, 663 F.3d 1, 3-4 (1st Cir. 2011). Beltrand-Alas's

argument that he would likely be subject to persecution because he

may be deemed wealthy because of his status as a returning

expatriate from the United States fails. "In a poorly policed

country, rich and poor are all prey to criminals who care nothing

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more than taking [property] for themselves." Id. at 4. BeltrandAlas's own testimony that the police did not protect anyone from

gangs provides substantial support for the BIA's finding that this

proposed social group is not a cognizable one. Nor did any

testimony establish any evidence that expatriates are targeted in

El Salvador.

Substantial evidence supports the finding that BeltrandAlas was not targeted on account of a political opinion. In

Arévalo-Girón v. Holder, 667 F.3d 79 (1st Cir. 2012), we observed

that greed was the motivating force for gangs. Id. at 83. Gangs,

like guerillas and common criminals, are "apt to resort to violent

means to accomplish their goals, and it is the alien's burden to

give the adjudicator some basis for differentiation in a given

case." Lopez de Hincapie v. Gonzales, 494 F.3d 213, 219 (1st Cir.

2007). Beltrand-Alas's testimony that Ulysses threatened him

because he advised his brother against joining the gang and that

Ulysses was trying to make more money as a member of the gang

confirms such reasoning. 

Because there was no error in the BIA's determination

discussed above, it is unnecessary to review Beltrand-Alas's claim

that the agency erred in determining that he did not suffer past

persecution. The failure to demonstrate a nexus between the

alleged harm and a protected ground is fatal to the claim.

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Accordingly, we deny Beltrand-Alas's petition for review. 

 

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