Carranza-Vargas v. Holder

492 F. App'x 133
Court of Appeals for the First Circuit·Decided August 30, 2012·No. 11-2263·Unpublished

Opinion

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 violation of 8 U.S.C. § 1182(a)(6)(A)(i). Carranza-Vargas admitted the allegations, conceded remova-bility, 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. Carranza-Vargas stated that the gangs also demanded money from other citizens who lived in the area, including almost anyone who made money, in accor *135 dance 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 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 Carranza-Vargas 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 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.” 1 The BIA rejected the CAT 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 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.

*136 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, 112 S.Ct. 812, 117 L.Ed.2d 38 (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).

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