Ruiz Varela v. Barr

984 F.3d 122

• Court: Court of Appeals for the First Circuit
• Decided: December 23, 2020
• Docket: 19-1994P
• Status: Published

Opinion

United States Court of Appeals For the First Circuit

No. 19-1994

JOSE CECILIO RUIZ-VARELA,

Petitioner,

v.

WILLIAM P. BARR, United States Attorney General,

Respondent.

PETITION FOR REVIEW OF AN ORDER OF THE BOARD OF IMMIGRATION APPEALS

Before

Howard, Chief Judge, Kayatta, Circuit Judge, Casper, District Judge.

Randy Olen for petitioner. Julia J. Tyler, Trial Attorney, Office of Immigration Litigation, with whom Ethan P. Davis, Acting Assistant Attorney General, Civil Division, and Jennifer P. Levings, Senior Litigation Counsel, were on brief for respondent.

December 23, 2020

 Of the District of Massachusetts, sitting by designation. Casper, District Judge. Petitioner Jose Cecilio Ruiz-Varela

("Ruiz"), a native and citizen of Honduras, seeks review of a final

order of removal issued by the Board of Immigration Appeals

("BIA"), dismissing his appeal from the decision of an immigration

judge ("IJ") denying his request for withholding of removal under

Section 241(b)(3) of the Immigration and Nationality Act ("INA"),

8 U.S.C. § 1231(b)(3). Having concluded that there was substantial

evidence to support the BIA's decision to deny Ruiz's application

for withholding of removal where he failed to establish the

required nexus between his treatment by the police and his

membership in a particular social group (here, his immediate

family), the Court denies the petition for review.

I.

Ruiz initially entered the United States in 2001. Agents of

Immigration and Customs Enforcement ("ICE") encountered him here

in 2009 and because he was in the country illegally, he was placed

in removal proceedings. As a result, Ruiz accepted voluntary

departure and returned to Honduras in 2009.

Once back in his hometown in Honduras, Ruiz worked in

construction, but often worked at his father's pool hall. Although

they had other family members in the area, the only family members

to work there were Ruiz and his father. His father's

establishment, located in the front part of the residence Ruiz

- 2 - shared with his parents, was very successful and was frequented by

neighbors, friends, family and members of the National Police.

Sometime after his return, members of the National Police

made extortionate demands for money in exchange for "protection."

Neither Ruiz nor his father thought his father should pay these

demands and they were not going to pay even after the threats

continued. Even after the police at some point threatened to kill

his son, Ruiz's father refused the demands and told the officers

that he was going to report them and expose their scheme.

Sometime after this response, in late 2011, Ruiz was returning

home at night with a friend on the friend's motorcycle from a party

nearby. They came upon a roadblock guarded by military and local

police. As they proceeded through the roadblock without stopping,

Ruiz recognized some of the officers there as those who had

attempted the extortion. According to Ruiz, these officers saw

them and immediately opened fire at them, firing approximately six

shots. In response, his friend sped up on the motorcycle and the

officers then fired fifty to seventy more rounds at the two until

they fell off the motorcycle. While on the ground, officers began

to hit and kick them, pointing their weapons at them, ceasing to

do so eventually as bystanders gathered and protested. As a

result, Ruiz suffered a gunshot wound to his foot and injuries to

his ribs, chest and shoulder and was hospitalized. Although Ruiz

was initially charged, as the police alleged the two men had been

- 3 - armed and had shot at them, the charges against him were dropped.

The local government investigated the incident, and as a result

some changes were made within the police, including the removal of

many of the officers from their posts. Ruiz claimed, however,

that these developments stirred a strong reprisal from the police

against him and his father. Over the course of the next year, the

officers continued with their threats, but the pool hall remained

open, operated solely by his father during Ruiz's recuperation.

On one occasion, two officers came to his father's business and

one pointed out Ruiz to the other and said "look, he is one of the

ones I told you about." Ruiz also claimed that he was followed by

police and that officers had told the owners of a gasoline station

near the checkpoint that Ruiz and his friend had tried to rob their

business, prompting the owners to threaten to kill them.

In November 2012, approximately a year after the checkpoint

incident, Ruiz decided to leave his home country again for the

United States because of his fear of police reprisals. He entered

the United States illegally but did not come to the attention of

immigration authorities until after an arrest by the Smithfield,

Rhode Island Police in January 2019. On January 31, 2019, the

U.S. Department of Homeland Security ("DHS") filed a Notice to

Appear ("NTA") charging Ruiz with removability. In response, Ruiz

conceded removability, but sought withholding of removal under the

- 4 - Convention Against Torture and withholding of removal under INA

Section 241(b)(3).

After considering the testimony of Ruiz, the sole witness,

and the exhibits admitted, the IJ denied the petition for

withholding of removal on April 22, 2019. The IJ noted that he

had "significant concerns regarding [Ruiz's] credibility," but

given corroborative evidence including medical records reflecting

his hospitalization for a shooting, he would give Ruiz "the benefit

of the doubt" and "assume [he] was a credible witness." Even doing

so, the IJ concluded that Ruiz had failed to show the necessary

nexus between past persecution and any clear probability that his

life or freedom would be harmed in the future on a protected ground

under INA Section 241(b)(3). Although recognizing that being shot

by the police at the checkpoint would be a persecutory act, the IJ

concluded that the nexus to Ruiz's family status was missing where,

even as recounted by Ruiz, the cause of the police's conduct at

the checkpoint was not clear. The IJ noted the same deficiency as

to the later visit by two officers. The IJ recognized that family

members may constitute a particular social group for the purposes

of removal under Section 241(b)(3), but could not conclude "that

the evidence indicates that the police officers had animus against

[Ruiz] based on his biological ties." His father continued to

live in his hometown, running the same pool hall, and his mother

and siblings continued to live in the area without incident.

- 5 - Although Ruiz stressed that he was the only family member who

worked with his father in the pool hall, the IJ found that to be

an insufficient basis for claiming persecution based on family

membership. Instead, he concluded that "one central reason" Ruiz

may have been targeted was because of the extortion and demands,

but also because the police thought that Ruiz and his friend were

running the roadblock, neither of which was a protected ground.

Accordingly, the IJ concluded that Ruiz had failed to sustain his

burden of showing that he was targeted on account of family

membership, a protected ground.1

On September 5, 2019, the BIA affirmed the IJ's ruling. While

not reaching every issue in the case, the BIA agreed with the IJ

that Ruiz had not sustained his burden for withholding of removal

under INA Section 241(b)(3). In relevant part, the BIA agreed

that he had not established that his family membership was a

central reason for his claimed persecution by local police. On

this point, the BIA observed that while corrupt officers may have

attempted to extort money from him and his father, Ruiz had not

identified any evidence indicating a particular animus toward his

1The IJ made other findings rejecting Ruiz's challenge to the service of the NTA, his claim for withholding of removal under Section 241(b)(3) based upon political opinion, his argument that the Honduran government was unwilling or unable to control his persecutors, and Ruiz's petition for protection under CAT, all of which Ruiz does not challenge in this appeal.

- 6 - family. Citing that his mother and siblings continued to live in

the same area without incident, the targeting of the two, the only

family members working at the business, suggests that they were

targeted for their wealth by the corrupt officers seeking

extortionate payments. Accordingly, the BIA affirmed the IJ's

decision denying withholding of removal.

Ruiz now brings this timely appeal of the BIA's denial of his

petition for withholding of removal under INA Section 241(b)(3).

II.

This Court reviews the BIA's legal conclusions de novo, but

applies the more deferential, substantial evidence standard to its

factual findings. Soeung v. Holder, 677 F.3d 484, 487 (1st Cir.

2012). The Court accepts the agency's factfinding if it is

"supported by reasonable, substantial, and probative evidence on

the record considered as a whole." Guzman v. INS, 327 F.3d 11, 15

(1st Cir. 2003) (quoting INS v. Elias-Zacarias, 502 U.S. 478, 481

(1992)). That is, we will not reverse unless, viewing the record

as a whole, "any reasonable adjudicator would be compelled to

conclude to the contrary." Ahmed v. Holder, 765 F.3d 96, 100 (1st

Cir. 2014) (quoting 8 U.S.C. § 1252(b)(4)(B)). As this Court has

recently noted, "judicial review typically focuses on the final

decision of the BIA." Loja-Tene v. Barr, 975 F.3d 58, 60 (1st

Cir. 2020). "But when the BIA embraces the decision of the IJ,

'merely add[ing] its gloss to the IJ's findings and conclusions,

- 7 - we treat the two decisions as one.'" Id. (quoting Murillo-Robles

v. Lynch, 839 F.3d 88, 91 (1st Cir. 2016)); see Piedrahita v.

Mukasey, 524 F.3d 142, 144 (1st Cir. 2008) (noting that when “the

BIA adopts the IJ's opinion and discusses some of the bases for

the IJ's decision, we have authority to review both the IJ's and

the BIA's opinions" (quoting Ouk v. Gonzales, 464 F.3d 108, 110

(1st Cir. 2006))). Accordingly, this Court does so here.

III.

The Court concludes that the BIA's finding that Ruiz failed

to show the requisite nexus between the persecution by the local

police and his family membership is supported by substantial

evidence. A petitioner is eligible for withholding of removal to

his home country if his "life or freedom would be threatened in

that country because of the alien's race, religion, nationality,

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

U.S.C. § 1231(b)(3)(A). Specifically, the petitioner bears the

burden of showing that he suffered past persecution or, that in

the absence of past persecution, it is more likely than not that

he will be persecuted in the future "on account of" one of the

protected grounds. 8 C.F.R. § 1208.16(b); see Yong Gao v. Barr,

950 F.3d 147, 154 (1st Cir. 2020). One of the protected grounds

must be "at least 'one central reason' for his persecution." Tay-

Chan v. Holder, 699 F.3d 107, 111 (1st Cir. 2012) (citing 8

U.S.C. §§ 1158(b)(1)(B)(i), 1231(b)(3)(C)). Here, Ruiz contends

- 8 - that the BIA erred in affirming the IJ's finding that he failed to

show that he faced persecution on account of his membership in a

particular social group, namely, his immediate family.

Social group membership, including membership in an immediate

family, may be grounds for withholding of removal under INA Section

241(b)(3) if the petitioner suffered or will more likely than not

suffer future persecution because of his or her membership. See

Aldana-Ramos v. Holder, 757 F.3d 9, 15 (1st Cir. 2014);

Gebremichael v. INS, 10 F.3d 28, 36 (1st Cir. 1993). Such family

membership need not be the only reason for persecution, but it

must be a central reason for persecution, Aldana-Ramos, 757 F.3d

at 18, as the BIA recognized. Whether cast as the Ruiz-Varela

family (as the government contends is the only basis asserted by

Ruiz below) or as his father's son (which Ruiz has cast as

synonymous for the family relationship upon which he relies), Ruiz

fails to establish a nexus between the police persecution of him

and his family status. Villalta-Martinez v. Sessions, 882 F.3d

20, 24-25 (1st Cir. 2018) (concluding that the record did not

compel a contrary outcome where the BIA found insufficient evidence

that extortion was motivated by petitioner's relationship with her

child's father); Loja-Tene, 975 F.3d at 61 (noting that "a

reviewing court must uphold the agency's factbound determinations

as long as those determinations are supported by substantial

evidence in the record, viewed as a whole").

- 9 - Ruiz's mother and siblings continued to reside in the area

without incident.2 Although they shared the familial connection,

only Ruiz worked with his father in the pool hall, was often

present when the police made their (unsuccessful) demands and

shared his father's belief that protection money should not be

paid to the police. Even if the police only extorted his father,

there was still substantial evidence to support the BIA's finding

regarding lack of the requisite nexus. That the local police had

other ready, familial targets who lived as close as the residence

attached to the pool hall (i.e., Ruiz's mother) to threaten to

pressure Ruiz's father into submitting to their demands and did

not do so, supports that his status as a family member was not a

central reason for the persecution of Ruiz. Loja-Tene, 975 F.3d

at 62 (finding substantial evidence for conclusion that family

ties did not motivate persecution where persecutor made threats to

petitioner and her father, but sisters remained in the country

2 Although the record is silent about whether the local police knew that Ruiz's father had family in the area other than Ruiz, it is not a reasonable inference from this record that they did not. Mediouni v. INS, 314 F.3d 24, 27 (1st Cir. 2002) (noting that BIA findings and conclusions must be "based on inferences or presumptions that are . . . reasonably grounded in the record, viewed as a whole . . ." (quoting Cordero-Trejo v. INS, 40 F.3d 482, 487 (1st Cir. 1994))). The record reflects that Ruiz's mother lived with Ruiz and his father behind the pool hall, his siblings lived nearby, both his family and the local police frequented the pool hall and Ruiz noted that his family members were at the hospital, along with the police, in the wake of the roadblock incident. - 10 - without having been subjected to similar threats). Moreover, as

the IJ noted and the record otherwise reflects, it is not clear

that the police conduct when Ruiz and his friend went through the

nighttime checkpoint, or when an officer later pointed out Ruiz to

another officer, was because of the refusal to submit to the

officers' extortionate demands or, rather, because Ruiz had run a

roadblock. Even if Ruiz and his father believed it to be because

of his family relationship, we cannot say that the record compels

a different outcome than the one that the BIA reached here. Jianli

Chen v. Holder, 703 F.3d 17, 21 (1st Cir. 2012).

For the aforementioned reasons, the petition for review is

denied.

- 11 -