Axel Montes De Oca-Bolanos v. Matthew Whitaker

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 14, 2019
• Docket: 16-70870
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 14 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

AXEL OMAR MONTES DE OCA- No. 16-70870 BOLANOS, Agency No. A206-464-032 Petitioner,

v. MEMORANDUM*

MATTHEW G. WHITAKER, Acting Attorney General,

Respondent.

On Petition for Review of an Order of the Board of Immigration Appeals

Submitted December 18, 2018** San Francisco, California

Before: GILMAN,*** PAEZ, and OWENS, Circuit Judges.

Petitioner Axel Omar Montes De Oca-Bolanos (Montes), a native and

citizen of Guatemala, alleges that he would be persecuted and tortured by the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. Mara-18 gang if he is removed to Guatemala. An immigration judge (IJ) denied

Montes’s application for asylum, withholding of removal, and protection under the

Convention Against Torture (CAT). The Board of Immigration Appeals (BIA)

affirmed.

On appeal, Montes argues that the BIA erred in concluding that (1) “current

and former bus drivers” is not a “particular social group” eligible for asylum and

withholding of removal, and (2) he does not qualify for protection under the CAT.

For the reasons set forth below, we DENY Montes’s petition for review.

I. Montes’s asylum claim

Montes is ineligible for asylum because he has not established persecution

on account of a protected ground. See 8 U.S.C. § 1101(a)(42)(A). If an applicant

requests asylum based on “membership in a particular social group,” he or she

must establish that the group is “(1) composed of members who share a common

immutable characteristic, (2) defined with particularity, and (3) socially distinct

within the society in question.” Reyes v. Lynch, 842 F.3d 1125, 1131 (9th Cir.

2016) (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 277, 237 (BIA 2014)).

Montes is ineligible for asylum because “current and former bus drivers” is not a

cognizable particular social group.

This court has repeatedly declined to recognize one’s employment as a

particular social group because a person’s job is generally not an immutable or

2 fundamental characteristic. See, e.g., Ochoa v. Gonzales, 406 F.3d 1166, 1170-71

(9th Cir. 2005) (stating that a group of “business owners” did not share an “innate

characteristic”), abrogated on other grounds by Henriquez-Rivas v. Holder, 707

F.3d 1081 (9th Cir. 2013) (en banc). Being a bus driver is not an immutable

characteristic, nor is it fundamental to Montes’s identity or conscience.

See Donchev v. Mukasey, 553 F.3d 1206, 1216 (9th Cir. 2009) (stating that a

“common immutable characteristic” is an attribute a person “cannot change, or

should not be required to change because it is fundamental to their individual

identities or consciences” (quoting Matter of Acosta, 19 I & N. Dec. 211, 233 (BIA

1985)).

Montes contends, however, that his status as a former bus driver is an

immutable characteristic that can form the basis of a particular social group. He

argues that “even if [he] decides to change professions, he will always remain a

former bus driver who failed to pay his extortion demand.” We are not persuaded.

According to the record, gangs make extortion demands by calling the bus stations

or by boarding buses and attacking drivers. There is no evidence that gangs target

former bus drivers, nor any evidence that Montes would be perceived as a former

bus driver by Guatemalan society or by the gangs.

3 II. Montes’s withholding-of-removal claim

Montes next seeks withholding of removal. But because Montes has not

established eligibility for asylum, he necessarily has not fulfilled the higher

evidentiary burden of proof required for withholding of removal. See

Pedro-Mateo v. INS, 224 F.3d 1147, 1150 (9th Cir. 2000).

III. Montes’s CAT claim

Montes finally seeks CAT protection. To qualify for protection under the

CAT, an applicant must show that he or she will more than likely be tortured “by

or at the instigation of or with the consent or acquiescence of a public official or

other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1).

“Acquiescence of a public official requires that the public official, prior to the

activity constituting torture, have awareness of such activity and thereafter breach

his or her legal responsibility to intervene to prevent such activity.” Id. at

§ 1208.18(a)(7). “[G]eneral ineffectiveness on the government’s part to

investigate and prevent crime will not suffice to show acquiescence.”

Andrade-Garcia v. Lynch, 828 F.3d 829, 836 (9th Cir. 2016).

The record does not compel the conclusion that Montes would more than

likely be tortured with the consent or acquiescence any Guatemalan official. In

fact, Montes submitted evidence with photographs showing the Guatemalan police

arresting suspected gang members. The record also shows that the Guatemalan

4 government uses legislative action, reforms, and other programs to combat gang

activity and violence. The BIA therefore did not err in denying Montes protection

under the CAT.

IV. Conclusion

For all of the reasons set forth above, we DENY Montes’s petition for

review.