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Barrios v. Holder

May 27, 2009; see amended opinion filed June 26, 2009

ANGEL WILFREDO RAMOS BARRIOS, PETITIONER,
v.
ERIC H. HOLDER JR., ATTORNEY GENERAL, RESPONDENT.



On Petition for Review of an Order of the Board of Immigration Appeals Agency No. A078-311-822.

The opinion of the court was delivered by: Wardlaw, Circuit Judge

FOR PUBLICATION

Submitted December 8, 2008*fn1 -- Pasadena, California

Before: Before: Jerome Farris, Susan P. Graber,*fn2 and Kim McLane Wardlaw, Circuit Judges.

OPINION

Angel Wilfredo Ramos Barrios ("Ramos"), a native and citizen of Guatemala, petitions for review of the Board of Immigration Appeals' ("BIA") affirmance of the immigration judge's ("IJ") denial of his application for asylum, withholding of removal, relief under the Convention Against Torture ("CAT"), and special rule cancellation of removal under section 203 of the Nicaraguan Adjustment and Central American Relief Act ("NACARA" or "the Act"). Following our recent precedent, we hold that Ramos is ineligible for asylum and withholding of removal because his refusal to join a gang does not make him a member of a particular social group or constitute a political opinion. We also hold as a matter of first impression that Ramos is not entitled to NACARA relief because a minor who seeks relief as a derivative must personally satisfy the Act's requirement of seven years of continuous physical presence. Ramos's father's physical presence in the United States cannot be imputed to him to satisfy this requirement. We do not reach Ramos's CAT claim because it was waived. We have jurisdiction pursuant to 8 U.S.C. § 1252, and we deny the petition.

I. FACTUAL AND PROCEDURAL BACKGROUND

Ramos entered the United States on December 18, 2001, without being admitted or paroled. The next day, the former Immigration and Naturalization Service ("INS") issued Ramos a Notice to Appear, charging him with inadmissibility in accordance with 8 U.S.C. § 1182(a)(6)(A)(i), and placed him in removal proceedings. On November 1, 2002, Ramos filed an application for asylum, withholding of removal, and CAT relief. He also submitted an application for special rule cancellation of removal pursuant to section 203 of NACARA.

Ramos was the sole witness at the merits hearing before the IJ. He admitted the factual allegations and conceded inadmissibility. As to his claims for relief, Ramos testified that he had been threatened by a gang, or "mara," while attending school in Guatemala.*fn3 The gang members wanted Ramos to join the gang, but he refused. As a result, the gang members "continued to threaten [him] and started to steal things from [him]." On one occasion, they cut his neck with a switchblade when he would not give them his lunch money. The gang members told him "[it] was a sign as to what could happen to [him]." Ramos did not report the incidents to the police because the gangs had warned him that if he told anyone, "they were going to do something" to him or his family. He did tell his family and two of his teachers about the threats, but they took no action because, according to Ramos, they were also afraid.

Believing his life was in danger on account of the threats, Ramos left Guatemala in December 2001. Since arriving in the United States, he has spoken to family members who remained in Guatemala.*fn4 They told him that the gang members had passed by the house in which Ramos formerly lived, asking about and threatening him. Ramos testified that he is scared to return to Guatemala, fearing that "it would go back to the same thing and that [the gangs] will no longer threaten, but something would actually happen."

The IJ accepted Ramos's testimony as true but nevertheless denied all forms of relief. On appeal to the BIA, a one-member panel adopted and affirmed the IJ's decision, citing Matter of Burbano, 20 I. & N. Dec. 872 (BIA 1994). Ramos timely petitions for review.

II. STANDARD OF REVIEW

When the BIA cites Burbano "and does not express disagreement with any part of the IJ's decision, the BIA adopts the IJ's decision in its entirety." Abebe v. Gonzales, 432 F.3d 1037, 1040 (9th Cir. 2005) (en banc). "In citing Burbano, [t]he BIA thereby signaled that it had conducted an independent review of the record and had exercised its own discretion in determining that its conclusions were the same as those articulated by the IJ." Arreguin-Moreno v. Mukasey, 511 F.3d 1229, 1232 (9th Cir. 2008) (alteration in original) (internal quotation marks omitted).

We review questions of law de novo, Cerezo v. Mukasey, 512 F.3d 1163, 1166 (9th Cir. 2008), except to the extent that deference is owed to the BIA's determination of the governing statutes and regulations, Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th Cir. 2004). Factual findings are reviewed for substantial evidence. Zehatye v. Gonzales, 453 F.3d 1182, 1184-85 (9th Cir. 2006). When neither the IJ nor the BIA makes an adverse credibility finding, we must accept a petitioner's testimony before the IJ as true. Lim v. INS, 224 F.3d 929, 933 (9th Cir. 2000).

III. DISCUSSION

A. Asylum and Withholding of Removal

[1] The Attorney General may grant asylum to an alien who "is unable or unwilling to return to . . . [his home] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion." 8 U.S.C. § 1101(a)(42)(A); id. § 1158(b)(1)(A); see INS v. EliasZacarias, 502 U.S. 478, 481 (1992). The source of the persecution must be a government official or an individual or group that "the government is unwilling or unable to control." Avetova-Elisseva v. INS, 213 F.3d 1192, 1196 (9th Cir. 2000) (internal quotation marks omitted). To qualify for withholding of removal, an alien must demonstrate that there is a clear probability that he will be subject to such persecution. AlHarbi v. INS, 242 F.3d 882, 888 (9th Cir. 2001). An alien who fails to satisfy the lower standard of proof required to establish eligibility for asylum necessarily fails to establish eligibility for withholding of removal. Farah v. Ashcroft, 348 F.3d 1153, 1156 (9th Cir. 2003).

[2] Ramos argues that he was persecuted on account of two protected grounds: (1) membership in a particular social group-namely, young males in Guatemala who are targeted for gang recruitment but refuse because they disagree with the gang's criminal activities; and (2) an "anti-gang opinion" that was political in nature, insofar as "gang activity affects the administration of the government and the country." We recently have held, however, that resistance to gang membership is not a protected ground. Ramos-Lopez v. Holder, No. 06-72402, 2009 WL 1012062, at *2-*6 (9th Cir. Apr. 16, 2009).*fn5

In Ramos-Lopez, we held that "young Honduran men who have been recruited by gangs but refuse to join do not constitute a particular social group." Id. at *6. Applying Chevron deference, we concluded that the BIA's precedential decision in Matter of S-E-G- "is not arbitrary and capricious." Id. at *5. We noted that the BIA's decision analyzed the purported social group using the factors set forth in our prior case law. Id. at *4. Upon reviewing its analysis, we determined that the BIA reasonably found "that the group was not sufficiently particular" and "that the group lacked social visibility." Id. at *5.

[3] Ramos's argument that young men in Guatemala who resist gang recruitment constitute a social group is indistinguishable from the argument made in Ramos-Lopez.*fn6 Accord- ingly, we must reject Ramos's argument for the reasons explained in that case. See id. at *4-*6.

We also addressed in Ramos-Lopez whether the petitioner had been persecuted on account of an anti-gang political opinion. Id. at *6. Turning again to Matter of S-E-G-, we deferred under Chevron "to the BIA's reasonable interpretation of 'political opinion' for the same reason we defer[red] to the BIA's reasonable interpretation of 'particular social group.' " Id. We also relied on our decision in Santos-Lemus.*fn7 Id.

[4] In Santos-Lemus, we found that the petitioner had "provided no evidence that his opposition to the gang's criminal activity was based on political opinion [or] . . . that he was politically or ideologically opposed to the ideals espoused by the Mara or to gangs in general." 542 F.3d at 747. Rather, the available evidence suggested "that Santos-Lemus was victim- ized for economic and personal reasons." Id. We held that "[t]hese motivations do not constitute persecution on account of political opinion." Id. We also rejected Santos-Lemus's contention that he was persecuted on account of an imputed political opinion, reasoning that "Santos-Lemus neither stated in his application for asylum, nor in his testimony at his hearing, that he . . . refused to join the gang," and that no evidence suggested "that the gang held any sort of ...


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