Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 11-2263

EDWIN CARRANZA-VARGAS,

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,

Torruella and Boudin, Circuit Judges.

Joshua L. Goldstein on brief for petitioner.

Brendan P. Hogan, Office of Immigration Litigation, Stuart F.

Delery, Acting Assistant Attorney General, Civil Division, and

Cindy S. Ferrier, Assistant Director, on brief for respondent.

August 30, 2012
LYNCH, Chief Judge. Edwin Carranza-Vargas petitions for

review of a September 30, 2011, decision by the Board of

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

Immigration Judge (IJ) denying his application for asylum,

withholding of removal, and relief under the Convention Against

Torture (CAT). Relief was denied because Carranza-Vargas failed to

establish that attempts by gangs to extort money from him were even

partially motivated by a desire to persecute him on account of a

protected ground, and he did not qualify for CAT relief.

Carranza-Vargas bases his claim for asylum and

withholding of removal on the argument that he was subjected to

persecution on account of his membership in the particular social

group of former police and army members who fear harm by gangs. He

also argues that he is protected under the CAT because he will be

tortured by gangs upon his return to El Salvador. The agency's

determinations are supported by substantial evidence, and we deny

the petition for review.

I.

Carranza-Vargas is a native and citizen of El Salvador

who unlawfully entered the United States on or about December 29,

2006. On February 12, 2007, the Department of Homeland Security

began removal proceedings by filing a Notice to Appear with the

immigration court, charging Carranza-Vargas as an alien present in

the United States without having been admitted or paroled in

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violation of 8 U.S.C. § 1182(a)(6)(A)(i). Carranza-Vargas admitted

the allegations, conceded removability, and applied for relief in

the form of asylum, withholding of removal, and protection under

the CAT.

Carranza-Vargas's merits hearing was held before the IJ

on November 25, 2009. He testified that between 1981 and 1983 he

served in El Salvador's military; later he served in the national

police force in various capacities. As part of his duties,

Carranza-Vargas arrested gang members, who, in retaliation,

threatened him. During his time on the police force, gang members

threatened to physically attack Carranza-Vargas unless he paid them

$25 each month. Carranza-Vargas chose to pay and was not

assaulted. Gangs left him alone when he carried his service

pistol. 

After leaving the police force in 1997, Carranza-Vargas

held jobs as a private security guard. Gang members continued to

routinely stop Carranza-Vargas to extract money from him and

continued to demand $25 monthly payments through 2006. CarranzaVargas stated that the gangs also demanded money from other

citizens who lived in the area, including almost anyone who made

money, in accordance with the income those citizens earned.

In 2003, approximately six years after leaving the police

force, and more than twenty years after leaving the military,

Carranza-Vargas was again asked to pay by gangs. Knowing that

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Carranza-Vargas was carrying rent money, the gang members waited

for him. Because he had refused to pay the gang members on an

earlier date, the gang members assaulted him. Carranza-Vargas was

severely injured and spent eighteen days in the hospital. 

Three years later, in 2006, gang members attacked him

again. In this incident, Carranza-Vargas refused to give the four

gang members who confronted him any money, apparently because he

did not have the $10 demanded. The gang members beat CarranzaVargas and stole his bicycle and pistol. They made no reference to

his status as an ex-police officer or ex-military member.

On cross-examination, Carranza-Vargas testified that the

gangs would want to harm him if he returned to El Salvador because

"they almost killed me once[] [a]nd if I come from this country

carrying money, they'll try again." 

The IJ found that Carranza-Vargas's testimony was

credible, but that Carranza-Vargas did not establish that he was

eligible for asylum because he did not suffer past persecution on

account of a protected ground. The IJ found that the threats made

against Carranza-Vargas while on the police force did not amount to

persecution. The IJ also found that the extortions and assaults of

Carranza-Vargas occurred on account of the gang members' desire to

exploit and rob generally. The IJ also found that Carranza-Vargas

did not establish a well-founded fear of future persecution because

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this claim rested on the same facts as his claim of past

persecution.

Because Carranza-Vargas did not establish eligibility for

asylum, the IJ found that Carranza-Vargas also did not meet the

higher standard required for withholding of removal. Finally, the

IJ found that the CAT claim failed because Carranza-Vargas did not

establish that he would be subjected to torture at the instigation

or with the consent or acquiescence of a public official or someone

acting in an official capacity.

Carranza-Vargas appealed the IJ's decision to the BIA,

which dismissed the appeal on September 30, 2011. The BIA reasoned

that Carranza-Vargas "failed to establish that the attempts to

extort money from him were even partially motivated by a desire to

persecute him for a ground enumerated in the Act -- much less that

such a motivation constituted or would constitute 'one central

reason' for the gang members' actions." The BIA rejected the CAT 1

claim because Carranza-Vargas did not "present[] sufficient

evidence establishing that it is more likely than not that he would

be subject to torture upon return to El Salvador at the instigation

or with the acquiescence . . . of a government official." 

On October 27, 2011, Carranza-Vargas petitioned this

Because the BIA reached its decision on the ground that 1

Carranza-Vargas was not persecuted on account of his status as an

ex-police officer or ex-military member, we need not reach the

question of whether such proposed social groups are legally

cognizable.

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court for review of the BIA's decision on the grounds that the

record compels us to conclude that Carranza-Vargas's prior

membership in the national police was at least a central reason for

why gang members attacked him and that Carranza-Vargas should be

granted relief under the CAT. 

II.

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). Because the

question of whether persecution is "on account" of a protected

ground is generally an issue of fact, Sompotan v. Mukasey, 533 F.3d

63, 68 (1st Cir. 2008), we review under the substantial evidence

standard, id. To reverse the agency's decision, we must "find that

the evidence not only supports th[e] conclusion [that the applicant

is eligible for relief], but compels it." INS v. Elias-Zacarias,

502 U.S. 478, 481 n.1 (1992). Where the BIA affirms the IJ but

includes its own discussion, we review both opinions. Nako v.

Holder, 611 F.3d 45, 48 (1st Cir. 2010).

To establish eligibility for asylum, an alien must

demonstrate that he has been subjected to past persecution or has

a well-founded fear of future persecution based on race, religion,

national origin, political opinion, or membership in a particular

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social group. 8 U.S.C. § 1158(b)(1); id. § 1101(a)(42). For

applications for asylum submitted after May 11, 2005, like

Carranza-Vargas's, one of the statutorily protected grounds must 2

be "at least one central reason" for the persecution. Id.

§ 1158(b)(1)(B)(i). A showing of past persecution with a

sufficient nexus to a statutorily protected ground creates a

rebuttable presumption of future persecution. Orelien v. Gonzales,

467 F.3d 67, 71 (1st Cir. 2006).

The agency's finding that Carranza-Vargas was not

persecuted on account of membership in the proposed social group of

former police officers or soldiers, but that the attacks were

economically motivated, is supported by substantial evidence.

The BIA's finding is consistent with the observation we

have made that "greed -- not social group membership -- is the

apparent trigger" for much gang violence. Arévalo-Girón v. Holder,

667 F.3d 79, 83 (1st Cir. 2012). Carranza-Vargas's own testimony

was that gangs demanded money from all citizens in accordance with

what they earned. When he paid his monthly fee, gang members did

not assault him. Indeed, Carranza-Vargas provided no evidence that

his being a member of the police force was a basis for the attacks

on him. 

The REAL ID Act of 2005 is applicable to Carranza-Vargas 2

because he submitted his application after May 11, 2005, the

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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The 2003 attack occurred when gang members waited for him

because they knew he had rent money on him and Carranza-Vargas had

refused to hand over money. In the 2006 attack, Carranza-Vargas

admitted that he was beaten because he did not have the $10 that

the gang wanted. Finally, Carranza-Vargas testified that the basis

of his fear that gang members would try to kill him upon his return

to El Salvador was that the gangs would believe he was carrying

money from the United States. Thus, the agency's finding that

Carranza-Vargas is not eligible for asylum is supported by

substantial evidence. 

Because withholding of removal requires satisfying a more

stringent standard than that which governs asylum, Carranza-Vargas

is necessarily ineligible for withholding of removal. See Stanciu

v. Holder, 659 F.3d 203, 208 (1st Cir. 2011).

Carranza-Vargas also argues that the agency erred in

finding him ineligible for protection under the CAT. A necessary

element for such relief is likelihood of torture at the instigation

of or with the consent or acquiescence of a public official. Elien

v. Ashcroft, 364 F.3d 392, 398 (1st Cir. 2004) (citing 8 C.F.R.

§ 208.18(a)(1)). There is no evidence that the government

instigated or acquiesced to the attacks on Carranza-Vargas. The

State Department reports of widespread gang violence in the country

do not compel a contrary conclusion. See Mendez-Barrera v. Holder,

602 F.3d 21, 28 (1st Cir. 2010). In fact, Carranza-Vargas's own

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argument, that he was persecuted by gangs on account of being a

former police officer and military member, is inconsistent with

government acquiescence.

The petition is denied.

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