Jose Vargas-Argeta v. Attorney General United States

• Court: Court of Appeals for the Third Circuit
• Decided: April 3, 2019
• Docket: 17-1866
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT ___________

No. 17-1866

___________

JOSE VLADIMIR VARGAS-ARGETA, Petitioner

v.

THE ATTORNEY GENERAL OF THE UNITED STATES OF AMERICA, Respondent

_______________________

On Petition for Review of a Decision of the Board of Immigration Appeals BIA No. A208-985-374 (U.S. Immigration Judge: Honorable Kuyomars Q. Golparvar) ______________

Argued: November 08, 2018

Before: AMBRO, SCIRICA, and RENDELL, Circuit Judges.

(Filed: April 3, 2019)

Amanda B. Elbogen [ARGUED] Kirkland & Ellis 333 South Hope Street 29th Floor Los Angeles, CA 90071

Michael Glick Kirkland & Ellis 1301 Pennsylvania Avenue, N.W. Washington, DC 20004 Counsel for Petitioner

Jonathan A. Robbins [ARGUED] Joanna L. Watson United States Department of Justice Office of Immigration Litigation P.O. Box 878 Ben Franklin Station Washington, DC 20044 Counsel for Respondent

________________

OPINION* ________________

SCIRICA, Circuit Judge

Jose Vladimir Vargas-Argeta, a native and citizen of El Salvador, entered the

United States unlawfully in 2016. When the Department of Homeland Security initiated

removal proceedings, Vargas-Argeta conceded removability and applied for asylum,

withholding of removal, and protection under the Convention Against Torture. Following

a hearing, an Immigration Judge denied all relief, and the Board of Immigration Appeals

dismissed Vargas-Argeta’s appeal. Vargas-Argeta now petitions for review of that order.

Because the Board did not legally err and substantial evidence supports its decision, we

will deny the petition for review.

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent.

2 I.

At his removal hearing before the Immigration Judge (IJ), Vargas-Argeta testified

in support of his applications for relief. Beginning in 2009, he worked for his father’s

carpentry business in El Salvador. But in 2013, gang activity grew rampant in their town,

and gang members began demanding that area businesses pay extortion fees. Vargas-

Argeta and his father paid the gang $100 per week. Sometime in 2015 or 2016, the gang

demanded more money, but Vargas-Argeta’s father could not pay more than $100. As a

result, the gang threatened Vargas-Argeta’s life and assaulted him on five occasions.

Vargas-Argeta did not report these assaults because he believed the police were corrupt

and would not assist, and the gang told him not to contact the police. Ultimately, he left

his town to live with his sister in San Salvador. He was not harmed or mistreated while he

lived with his sister, but he testified the gang came looking for him. Because he believed

the gang would find and harm him, he fled to the United States. Although the carpentry

business closed after he left El Salvador, Vargas-Argeta testified the gang would still kill

him for the past failure to pay.

The IJ found Vargas-Argeta testified credibly, but denied all relief. As to the

asylum claim, the IJ held Vargas-Argeta had not been persecuted on account of any

protected ground. The IJ stated that “[f]ear . . . based upon generalized criminal activity

and civil disorder is insufficient to be granted asylum.” App. 34. Relying on precedent of

the Board of Immigration Appeals (Board or BIA) that rejected proposed social groups

composed of victims of targeted gang violence, the IJ determined that Vargas-Argeta’s

“resistance to the gangs or being unable to pay any kind of extortion fee” is not a

3 protected category for purposes of asylum. Id. The asylum claim also failed because

Vargas-Argeta had not shown a well-founded fear of future persecution—he could

relocate to another part of El Salvador, and the closure of the carpentry business made it

unlikely he would be targeted or harmed.

Noting that the burden for withholding of removal is higher than that for claims of

asylum, the IJ also denied Vargas-Argeta’s withholding of removal application. Turning

to the Convention Against Torture (CAT) claim, the IJ determined “the evidence seems

to suggest that [Vargas-Argeta] would not be tortured” upon return to El Salvador

because of the closure of the carpentry business. App. 37. Moreover, he never reported

anything to the police, so the IJ could not find the police were aware of or involved in

what happened to him and his family. The IJ also noted the country reports showed that

high-ranking officials were working to curb corruption in El Salvador. In light of these

findings, the IJ determined there was no willful blindness or acquiescence on the part of

government officials, and denied Vargas-Argeta’s CAT claim.

Vargas-Argeta appealed, and the BIA dismissed his appeal in a single-member

decision. The Board agreed with the IJ that he was a victim of criminal activity and was

not persecuted on account of his membership in a particular social group (PSG).

Although Vargas-Argeta’s appeal specified that his proposed PSG was “young men in El

Salvador who have refused to pay extortion to a gang,” the Board rejected this

formulation. Accordingly, it held Vargas-Argeta had not shown eligibility for asylum or

withholding of removal. As to the CAT claim, the Board acknowledged Vargas-Argeta’s

arguments related to corruption and impunity in El Salvador but held Vargas-Argeta did

4 not show he more likely than not would face torture by or with the acquiescence of a

public official.

Vargas-Argeta filed a timely petition for review to this Court.1

II.

The BIA had jurisdiction under 8 C.F.R. §§ 1003.1(b)(3) and 1240.15. We have

jurisdiction to hear this appeal from the BIA under 8 U.S.C. § 1252(a)(1).

We generally review the BIA’s legal determinations de novo and its finding of

facts under the “substantial evidence” standard. Valdiviezo-Galdamez v. Att’y Gen., 663

F.3d 582, 590 (3d Cir. 2011). Under that standard, we can only reverse the BIA’s

decision if “any reasonable adjudicator would be compelled to conclude to the contrary.”

8 U.S.C. § 1252(b)(4)(B). “Because the BIA did not summarily affirm the IJ’s order but

instead issued a separate opinion, we review the BIA’s disposition and look to the IJ’s

ruling only insofar as the BIA deferred to it.” Roye v. Att’y Gen., 693 F.3d 333, 339 (3d

Cir. 2012).

III.

Vargas-Argeta contends the Board erred in denying him relief. With respect to his

asylum and withholding of removal claims, he primarily challenges the Board’s rejection

of his proposed PSG, arguing that rejection was wrong and not adequately explained. As

to his CAT claim, Vargas-Argeta also raises both substantive and procedural error,

1 We thank pro bono counsel for their excellent representation of Vargas-Argeta.

5 contending the Board erred in denying his claim and failed to properly consider the

evidence.

A.

To be eligible for asylum relief, a petitioner must establish that he is a refugee, 8

U.S.C. § 1158(b)(1), which is defined as a person who has suffered persecution or has a

well-founded fear of persecution “on account of race, religion, nationality, membership in

a particular social group, or political opinion,” id. § 1101(a)(42)(A). Here, Vargas-Argeta

claims he fears persecution because of his membership in a proposed PSG he defines as

“young men in El Salvador who have refused to pay MS-13 gang extortion fees.” Pet’r’s

Br. at 23. Under BIA precedent to which we have afforded Chevron deference, Vargas-

Argeta must make a three-part showing to prove the existence of a recognized PSG.

S.E.R.L. v. Att’y Gen., 894 F.3d 535, 540 (3d Cir. 2018). He must “establish that the

group [at issue] is (1) composed of members who share a common immutable

characteristic, (2) defined with particularity, and (3) socially distinct within the society in

question.” Id. (quoting Matter of M-E-V-G-, 26 I. & N. Dec. 227, 237 (BIA 2014))

(alteration in S.E.R.L.).

In denying Vargas-Argeta’s proposed PSG of “young men in El Salvador who

have refused to pay extortion to a gang,” App. 25 (internal quotation marks omitted), the

Board relied on its precedential decisions in Matter of W-G-R-, 26 I. & N. Dec. 208 (BIA

2014), and M-E-V-G-, 26 I. & N. Dec. 227. In those cases, the BIA rejected proposed

PSGs consisting of victims of gang-related criminal activity in part because they did not

meet the third requirement—they were not “socially distinct, that is, recognized in the

6 society in question as a discrete class of persons.” M-E-V-G-, 26 I. & N. Dec. at 249; see

also W-G-R-, 26 I. & N. Dec. at 210. In M-E-V-G-, the Board rejected a PSG of

Honduran youth who refused to join gangs. 26 I. & N. Dec. at 228. It explained that in

countries with prevalent gang violence, “the residents all generally suffer from the gang’s

criminal efforts to sustain its enterprise in the area.” Id. at 251. The Board concluded that

groups composed of individuals affected by such criminal efforts are thus not sufficiently

discrete absent evidence they are perceived by society as a distinct group. Id. at 251.

Similarly, in W-G-R- the Board rejected a PSG of former gang members that had

renounced their gang membership. 26 I. & N. Dec. at 221. Because the petitioner had put

forth no evidence showing that group was “perceived, considered, or recognized in [the

country’s] society as a distinct group,” the PSG was not recognized. Id. at 222.

Noting these decisions established that “those targeted for extortion by gangs or

criminals are not per se members of a cognizable [PSG],” the Board determined Vargas-

Argeta, “[o]n this record, . . . has not shown otherwise.” App. 25. Rather, he “was a

victim of criminal activity, and there is no evidence that the gang members . . . pursued

him because of his . . . membership in a particular social group.” Id. Because Vargas-

Argeta had not shown membership in such a PSG, the Board held he had not established

eligibility for asylum. Moreover, as a petitioner seeking withholding of removal must

satisfy a higher standard than that of asylum—i.e., “that it is more likely than not . . . that

[the petitioner] would suffer persecution upon returning home,” Valdiviezo-Galdamez,

663 F.3d at 591—the Board also determined Vargas-Argeta was not eligible for

7 withholding of removal. Cf. id. (“[A]n alien who fails to qualify for asylum is necessarily

ineligible for withholding of removal.”).

We find the Board’s decision meets the substantial evidence standard. As we have

recognized, the “social distinction” requirement “works to narrow the universe of

‘particular social groups’ to those whose members are seen to be ‘distinct’ or ‘other,’ like

the distinctiveness inherent in the other enumerated grounds of race, religion, nationality,

and political opinion.” S.E.R.L., 894 F.3d at 553 (quoting M-E-V-G-, 26 I. & N. Dec. at

244). To show such distinction, it is “well within the bounds of reasonableness” for the

Board to “requir[e] evidence that the society in question recognizes a proposed group as

distinct.” Id. at 551. Vargas-Argeta has pointed to no evidence showing Salvadoran

society perceives young men who refuse to pay extortion to gangs as a socially distinct

group. Because he has failed to meet the social distinction requirement, he has not shown

his PSG is legally recognized.2

We also reject Vargas-Argeta’s related claims of procedural error. Although he

contends the Board did not adequately explain its decision to reject his PSG, we find it

provided sufficient analysis to enable our review. Cf. Filja v. Gonzales, 447 F.3d 241,

256 (3d Cir. 2006) (noting the Board need only “announce its decision in terms sufficient

to enable a reviewing court to perceive that it has heard and thought”) (internal quotation

marks and citation omitted). The Board’s discussion of Vargas-Argeta’s testimony and its

citations to M-E-V-G- and W-G-R- show that it understood his claims and—as in those

2 Because we find Vargas-Argeta has not shown membership in a recognized PSG, we will not address his other arguments related to the Board’s dismissal of his asylum claim.

8 cited precedential decisions—rejected them for his failure to show evidence of social

distinction. Accordingly, we will not disturb the Board’s dismissal of Vargas-Argeta’s

appeal.

B.

Vargas-Argeta’s CAT claim also fails. For relief under the CAT, a petitioner must

establish that, if he or she is removed, it is “more likely than not that he or she would be

tortured,” 8 C.F.R. § 208.16(c)(2), “with the consent or acquiescence of a public official

or other person acting in an official capacity,” id. § 208.18(a)(1). We have held that

acquiescence means government officials participate in or “turn a blind eye” to torture.

Silva-Rengifo v. Att’y Gen., 473 F.3d 58, 70 (3d Cir. 2007). Here, the Board reviewed the

IJ’s findings and agreed with his determination that Vargas-Argeta had not shown a

likelihood of torture with the consent or acquiescence of a government official. App. 26.

Vargas-Argeta suggests the Board applied the wrong legal standard, considering

only whether he had been tortured by government officials and failing to assess whether

he was tortured with official consent or acquiescence. Pet’r’s Br. at 31. We disagree. The

record shows the Board properly considered whether “any public official in El Salvador

seeks to torture him or would consent or acquiesce in his torture,” and referred both to the

correct regulation and our precedent interpreting that regulation. App. 26. Vargas-Argeta

also asserts the Board reached the wrong conclusion, contending “the record shows

widespread government acquiescence to the rampant gang violence and extortion in El

Salvador.” Pet’r’s Br. at 32–33. The Board acknowledged this evidence, noting Vargas-

Argeta’s argument on appeal “that there is widespread corruption and a high level of

9 impunity in El Salvador.” App. 26. But in light of other record evidence, including

evidence that Vargas-Argeta never reported any of the gang’s activities to the police and

evidence showing high-level efforts to curtail corruption, the Board did not find it more

likely than not that Vargas-Argeta would be tortured with government acquiescence.

Under the substantial evidence standard, we cannot conclude the record compels a

contrary conclusion.

Finally, Vargas-Argeta argues the Board erred procedurally. He contends it failed

to examine all the evidence relevant to the possibility of future torture, noting it did not

discuss Vargas-Argeta’s testimony about the gang’s threats or his allegation the gang

followed him to San Salvador. Pet’r’s Br. at 30. But because the Board’s decision turned

on the absence of official consent or acquiescence, evidence about gang members

threatening and intimidating Vargas-Argeta was less probative and did not require in-

depth discussion. We are accordingly satisfied the Board’s review was proper.

IV.

For the foregoing reasons, we will deny the petition for review.