Batres Agustin v. Whitaker
Opinion
Jose Gilberto Batres Agustin ("Batres Agustin") is a Guatemalan national. He petitions for review of the Board of Immigration Appeals' ("BIA") order, which upheld the Immigration Judge's ("IJ") denial of his application for both withholding of removal under
I.
Batres Agustin entered the United States illegally in December of 1989. During his nearly thirty years in the United States, Batres Agustin was convicted three times of driving under the influence. After his most recent arrest in 2015 for driving under the influence, he was taken into custody by the Department of Homeland Security ("DHS"), and, on December 2, 2015, DHS initiated removal proceedings against him before an IJ in Boston, Massachusetts.
Prior to those proceedings, Batres Agustin filed an I-589 Application for Asylum and Withholding of Removal under § 241(b)(3) of the Immigration and Nationality Act ("INA"). He indicated in this application that he anticipated "mistreatment at the hands of the [gangs] and criminal elements in Guatemala" were he to return to his home country and that his *45 brother and daughter had experienced gang violence in Guatemala in the past when they refused to comply with the gangs' extortionist demands. He further indicated that he sought withholding of removal based on "membership in a particular social group" and that he was not afraid of being subjected to torture if he returned to Guatemala.
Batres Agustin's removal hearing was held on July 26, 2017. In seeking asylum and withholding of removal, he testified that he feared extortion and violence from local gangs were he to return to his home country. He also testified that his family had experienced gang violence there in the past and noted that he was particularly apprehensive, as someone returning from the United States, because "the [gangs] ask for money as soon as they know that you're coming back from [the United States]." When pressed by his attorney as to his precise fears regarding his return, Batres Agustin stated that he was "accustomed" to life in the United States and, for that reason, was afraid of "start[ing] over" in Guatemala.
At the hearing's conclusion, the IJ ruled that the asylum application was untimely and that Batres Agustin had failed to establish a well-founded fear of persecution upon his return to Guatemala based on one of the five protected grounds enumerated in
On August 24, 2017, Batres Agustin appealed the IJ's decision to the BIA. In affirming the IJ's ruling on April 20, 2018, the BIA found that Batres Agustin's application for asylum was untimely because it was filed well after the one-year deadline. The BIA also rejected his application for withholding of removal because he had failed to "demonstrate past persecution or that any feared harm would be on account of a protected ground." In so finding, the BIA determined that the petitioner "did not demonstrate a pattern or practice of persecution of a group of similarly situated people" due to any protected ground. Finally, the BIA rejected Batres Agustin's CAT claim because he had failed to "testify regarding any past torture or fear of future torture." Batres Agustin timely petitioned for review of the BIA's ruling on May 18, 2018.
II.
Where, as here, the BIA issues its own opinion without adopting the IJ's rationale, we review the BIA's decision.
See
Touch
v.
Holder
,
*46
To establish eligibility for withholding of removal, a petitioner must show "a clear probability of persecution,"
Ang
v. Gonzales,
Batres Agustin does not dispute that, as the BIA noted, a consistent line of our precedent supports the conclusion that wealthy Guatemalans returning to Guatemala do not constitute a protected social group.
See, e.g.
,
Sicaju-Diaz
v.
Holder
,
Batres Agustin first attempts to distinguish his case by contending that the record shows that his family has already experienced the type of violence that he fears will befall him if he returns. But, as Batres Agustin did not contend below-and does not argue to us-that he has been or would be targeted on the basis of his family status, this contention does not undermine the BIA's ruling that the only social group to which Batres Agustin claimed to belong-wealthy individuals returning to Guatemala-was not a social group that the statute protected.
Batres Agustin also contends that his case may be distinguished because he is an elderly man with no "social support" in Guatemala. But, again, this assertion is beside the point, as it, too, fails to show that the only social group to which he claimed to belong is a statutorily protected one.
All that remains for us to consider, therefore, is Batres Agustin's challenge
*47
to the BIA's ruling that he is not entitled to protection under the CAT. The BIA so ruled because it concluded that Batres Agustin had failed to establish that he feared torture "inflicted by, at the direction of, or with the acquiescence of government officials."
Hincapie
v.
Gonzales
,
III.
The petition for review is denied .
Batres Agustin's I-589 Application did not purport to seek relief under the CAT, and, therefore, it appears that the IJ addressed and rejected the prospect of CAT relief of its own accord.
Batres Agustin concedes that his asylum claim was untimely, but he argues for the first time to us that he qualifies for an exception to the one-year filing window due to the District Court for the Western District of Washington's recent decision in
Rojas
v.
Johnson
,
Reference
- Full Case Name
- Jose Gilberto Batres AGUSTIN, Petitioner, v. Matthew G. WHITAKER, Acting Attorney General, Respondent.
- Cited By
- 4 cases
- Status
- Published