Erik Olivares-Calixto v. Jefferson Sessions

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 16 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ERIK OLIVARES-CALIXTO, No. 16-71664

Petitioner, Agency No. A087-522-423

v. MEMORANDUM* JEFFERSON B. SESSIONS III, Attorney General,

Respondent.

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

Argued and Submitted November 7, 2017 Portland, Oregon

Before: FERNANDEZ, W. FLETCHER, and MELLOY,** Circuit Judges.

Erik Olivares-Calixto, a native and citizen of Mexico, petitions for review of

an immigration judge’s (IJ) decision that affirmed an asylum officer’s (AO)

negative reasonable fear determination. Olivares-Calixto expressed a fear of

returning to Mexico during proceedings to reinstate a prior order of removal. He

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Michael J. Melloy, United States Circuit Judge for the U.S. Court of Appeals for the Eighth Circuit, sitting by designation. alleged a fear of persecution as a member of “a particular social group,” 8 U.S.C.

§ 1231(b)(3)(A), based on his gang tattoos and former gang membership, culturally

American upbringing, and status as a “pocho” (a returning, seemingly non-native

Mexican). He also alleged a fear of torture. We deny the petition.

We review factual findings underlying an IJ’s negative reasonable fear

determination for substantial evidence. Andrade-Garcia v. Lynch, 828 F.3d 829,

833 (9th Cir. 2016). Here, we repeat the facts known to the parties only as

necessary to explain our decision. We review questions of law de novo. Arteaga

v. Mukasey, 511 F.3d 940, 944 (9th Cir. 2007). “Whether a group constitutes a

‘particular social group’ is a question of law.” Pirir-Boc v. Holder, 750 F.3d 1077,

1081 (9th Cir. 2014).

I

To qualify for withholding of removal, Olivares-Calixto must show his “life

or freedom would be threatened” in Mexico on account of his “race, religion,

nationality, membership in a particular social group, or political opinion.” 8

U.S.C. § 1231(b)(3)(A). Olivares-Calixto claims to be a member of the particular

social group: “Americanized, male, tattooed, recent gang apostates.”

Our court has made clear that Americanized individuals do not constitute a

particular social group. See Ramirez-Munoz v. Lynch, 816 F.3d 1226, 1228–29

(9th Cir. 2016) (holding that neither “actual or imputed wealthy Americans” nor

2 “those who are light-skinned, fit, and have American mannerisms or accents”

constitutes a particular social group); Delgado-Ortiz v. Holder, 600 F.3d 1148,

1150–52 (9th Cir. 2010) (per curiam) (holding that “Mexicans returning home

from the United States who are targeted as victims of violent crime” are not a

particular social group). We also have held, generally, that former gang members

or persons with gang tattoos do not qualify as a cognizable social group. See

Arteaga, 511 F.3d at 945–46 (holding that a “[t]attooed gang member” does not

qualify as a member of a particular social group for purposes of withholding of

removal, and “the category of non-associated or disaffiliated persons . . . is far too

unspecific and amorphous to be called a social group, whether that person is

tattooed or not”). While the Ninth Circuit has not yet discussed the term “pocho,”

we sufficiently addressed the underlying concept in Delgado-Ortiz and Ramirez-

Munoz.

Finally, while Olivares-Calixto adds together elements of his identity in an

attempt to create a narrowly defined social group, the sum of these parts, regardless

of their narrowness, does not qualify as a “particular social group.” See Arteaga

511 F.3d at 942 (noting the court should not be “misled by expansive and abstract

definitions of the term ‘social group’ to the extent that the application of such a

definition fails to comport with the manifest legislative purpose of the law and its

language”). As Olivares-Calixto failed to demonstrate membership in a statutorily

3 protected group, the IJ correctly determined Olivares-Calixto is ineligible for

withholding of removal, and, therefore, could not establish a reasonable fear for

withholding purposes.

II

To qualify for protection under the Convention Against Torture, Olivares-

Calixto must demonstrate “that it is more likely than not that he . . . would be

tortured if removed to the proposed country of removal.” Andrade v. Lynch, 798

F.3d 1242, 1245 (9th Cir. 2015) (per curiam) (quoting 8 C.F.R. § 208.16(c)(2)).

“Torture is an extreme form of cruel and inhuman treatment and does not include

lesser forms of cruel, inhuman or degrading treatment or punishment that do not

amount to torture.” 8 C.F.R. § 208.18(a)(2). Given the facts, Olivares-Calixto’s

past experiences in Mexico do not rise to the level of torture, and his claims of

future torture are speculative. Without facts supporting the existence of torture or

future risk of torture, we conclude substantial evidence supports the IJ’s finding

that Olivares-Calixto did not demonstrate a reasonable fear of torture.

III

Olivares-Calixto also raises a due process issue, arguing the AO and IJ did

not adequately analyze the arguments and expert evidence. While the IJ could

have provided additional detail in his order, further analysis was not necessary to

meet the requirements of due process. Due process is a flexible concept applied

4 situationally. See Mathews v. Eldridge, 424 U.S. 319, 334–35 (1976). Here, the

process afforded Olivares-Calixto, an alien with a reinstated order of removal, is

viewed in light of the more substantial process already received in the initial

removal proceeding. See Alvarenga-Villalobos v. Ashcroft, 271 F.3d 1169, 1174

(9th Cir. 2001).

Olivares-Calixto was represented by counsel during the AO interview and

two hearings before the IJ. In the first hearing, the IJ gave counsel for Olivares-

Calixto an option to either postpone the second hearing to accommodate in-person

expert testimony or submit written affidavits. Counsel opted to submit affidavits.

In the second hearing, the IJ noted he had considered Olivares-Calixto’s brief,

documentary evidence, and two expert reports. The IJ’s verbal and written orders

cite factually analogous and legally on-point Ninth Circuit precedent and reflect an

application of the facts and arguments found in the record. Finally, as the IJ’s

review of the AO’s initial negative reasonable fear determination is de novo, 8

C.F.R. § 1003.42(d), and the IJ addressed both of the expert opinions on the

record, an argument as to a possible AO inconsistency is ultimately insignificant.

For these reasons, Olivares-Calixto was afforded a fair hearing that comports with

the requirements of due process.

This petition is DENIED.